.
The Americans with Disabilities Act (ADA):
Proposed Employment Regulations
Nancy Lee Jones
Legislative Attorney
October 22, 2009
Congressional Research Service
7-5700
www.crs.gov
R40875
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
Summary
The Americans with Disabilities Act (ADA) is a broad civil rights act prohibiting discrimination
against individuals with disabilities. As stated in the act, its purpose is “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.” In 2008, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325, to
address Supreme Court decisions which interpreted the definition of disability narrowly. On
September 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued proposed
regulations under the ADA Amendments Act. Comments on the proposed regulations must be
submitted on or before November 23, 2009.
The ADA Amendments Act, which states that the definition of disability shall be construed
broadly and which specifically rejects portions of the EEOC’s ADA regulations, necessitated
regulatory changes. The major changes made to the regulations include specific examples of
impairments that will consistently meet the definition of disability, changes in the definition of
the term “substantially limits,” and expansion of the definition of “major life activity” including
changes to the concept of the major life activity of working. The EEOC also amended its
interpretative guidance for Title I of the ADA.
Congressional Research Service
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
Contents
Introduction ................................................................................................................................ 1
The ADA Amendments Act Definition of Disability .................................................................... 1
EEOC Proposed Regulations....................................................................................................... 2
Overview .............................................................................................................................. 2
Examples of Impairments...................................................................................................... 2
Substantially Limits a Major Life Impairment ....................................................................... 3
Major Life Activities ............................................................................................................. 4
The Major Life Activity of Working ...................................................................................... 5
Contacts
Author Contact Information ........................................................................................................ 6
Congressional Research Service
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
Introduction
The Americans with Disabilities Act (ADA)1 is a broad civil rights act prohibiting discrimination
against individuals with disabilities. As stated in the act, its purpose is “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.”2 In 2008, Congress enacted the ADA Amendments Act (ADAAA), P.L. 110-325, to
address Supreme Court decisions which interpreted the definition of disability narrowly.3 On
September 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued proposed
regulations under the ADA Amendments Act. Comments on the proposed regulations must be
submitted on or before November 23, 2009.4
The ADA Amendments Act Definition of Disability
Prior to a discussion of the proposed regulations, it is helpful to briefly examine the new statutory
definition of disability. The ADA AA defines the term disability with respect to an individual as
“(A) a physical or mental impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment (as described in paragraph (3)).”5 Although this is essentially the same
statutory language as was in the original ADA, P.L. 110-325 contains new rules of construction
regarding the definition of disability, which provide that
• the definition of disability shall be construed in favor of broad coverage to the
maximum extent permitted by the terms of the act;
• the term “substantially limits” shall be interpreted consistently with the findings
and purposes of the ADA Amendments Act;
• an impairment that substantially limits one major life activity need not limit other
major life activities to be considered a disability;
• an impairment that is episodic or in remission is a disability if it would have
substantially limited a major life activity when active; and
• the determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures, except that the ameliorative effects of ordinary eyeglasses or contact
lenses shall be considered.6
1 42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy Lee Jones.
2 42 U.S.C. §12101(b)(1).
3 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999);
Kirkingburg v. Albertson’s Inc., 527 U.S. 555 (1999); Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002).
For a more detailed discussion of the ADA Amendments Act see CRS Report RL34691, The ADA Amendments Act:
P.L. 110-325, by Nancy Lee Jones.
4 74 FED. REG. 48431 (September 23, 2009).
5 P.L. 110-325, §4(a), amending 42 U.S.C. §12102(3).
6 Low vision devices are not included in the ordinary eyeglasses and contact lens exception.
Congressional Research Service
1
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
EEOC Proposed Regulations
Overview
The ADA Amendments Act, which states that the definition of disability shall be construed
broadly7 and which specifically rejects portions of the EEOC’s ADA regulations,8 necessitated
regulatory changes. The major changes made to the regulations include specific examples of
impairments that will consistently meet the definition of disability, changes in the definition of
the term “substantially limits,” and expansion of the definition of “major life activity” including
changes to the concept of the major life activity of working. The EEOC also amended its
interpretative guidance for Title I of the ADA.9
Examples of Impairments
The ADA definition of disability is a functional definition, not a categorical definition. The EEOC
proposed regulatory definition reiterates the statutory definition10 and provides guidance on its
interpretation.11 Noting that “disability is determined based on an individualized assessment,” the
EEOC provides examples of impairments which will consistently meet the definition of
disability,12 and examples of impairments that may be disabling for some individuals but not for
others.13 The EEOC notes that these lists are illustrative, and other types of impairments that are
not listed may consistently meet the definition of disability.14 Examples are also provided of
impairments that are usually not disabilities.15
EEOC states that the following listed impairments will consistently meet the definition of
disability: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and
muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive
compulsive disorder, and schizophrenia.16 The EEOC examples of impairments that may be
disabling for some individuals but not for others include the following: asthma, high blood
pressure, learning disabilities, back or leg impairments, carpal tunnel syndrome, and
hyperthyroidism.17 “Temporary, non-chronic impairments of short duration with little or no
residual effects (such as the common cold, seasonal or common influenza, a sprained joint, minor
7 42 U.S.C. §12102(4)(A).
8 42 U.S.C. §12101 note.
9 74 FED. REG. 48444 (September 23, 2009).
10 Proposed Section 29 C.F.R. §1630.2(j)(5); 74 FED. REG. 48441 (September 23, 2009).
11 74 FED. REG. 48444 (September 23, 2009).
12 Proposed Section 29 C.F.R. §1630.2(j)(5); 74 FED. REG. 48441 (September 23, 2009).
13 Proposed Section 29 C.F.R. §1630.2(j)(6); 74 FED. REG. 48442 (September 23, 2009).
14 Proposed Section 29 C.F.R. §1630.2(j)(5); 74 FED. REG. 48441 (September 23, 2009); Proposed Section 29 C.F.R.
§1630.2(j)(6); 74 FED. REG. 48442 (September 23, 2009).
15 Proposed Section 29 C.F.R. §1630.2(j)(8); 74 FED. REG. 48443 (September 23, 2009).
16 Proposed Section 29 C.F.R. §1630.2(j); 74 FED. REG. 48441 (September 23, 2009).
17 Proposed Section 29 C.F.R. §1630.2(j)(6); 74 FED. REG. 48442 (September 23, 2009).
Congressional Research Service
2
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
and not-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely)
usually will not substantially limit a major life activity.”18
EEOC’s listing of specific impairments that “will consistently meet the definition of disability”
could arguably be seen as contrary to the ADA’s statutory definition. One commentator contends
that this may mean that an employer would have no argument against coverage of the listed
disabilities and, therefore, this approach is contrary to the ADA’s individualized assessment
approach.19 However, the EEOC appendix to the proposed regulations notes that, under the ADA,
disability is determined based on an individualized assessment, and that the proposed regulation
“recognizes, and offers examples to illustrate, that characteristics associated with some types of
impairments allow an individualized assessment to be conducted quickly and easily, and will
consistently render those impairments disabilities.”20
It is also interesting to note that in its list of conditions that will usually not substantially limit a
major life activity, the EEOC included seasonal or common influenza. It did not discuss whether
pandemic influenza would be covered. However, in separate guidance, the EEOC found that
H1N1, as currently experienced, would not be interpreted as a disability.21
Substantially Limits a Major Life Impairment
The ADA Amendments Act states that the purposes of the legislation are to carry out the ADA’s
objectives of the elimination of discrimination and the provision of “‘clear, strong, consistent,
enforceable standards addressing discrimination’ by reinstating a broad scope of protection
available under the ADA.” P.L. 110-325 rejects the Supreme Court’s holdings that mitigating
measures are to be used in making a determination of whether an impairment substantially limits
a major life activity as well as holdings defining the “substantially limits” requirements. The
substantially limits requirements of Toyota Motor Manufacturing v. Williams,22 as well as the
existing EEOC regulations defining substantially limits as “significantly restricted,” are
specifically rejected in the new law.23
The current EEOC regulations state that three factors should be considered in determining
whether an individual is substantially limited in a major life activity: the nature and severity of
the impairment, the duration or expected duration of the impairment, and the permanent or long-
term impact of the impairment.24 The proposed regulations do not contain these factors. They
state that an impairment is a disability “if it substantially limits the ability of an individual to
perform a major life activity as compared to most people in the general population. An
impairment need not prevent, or significantly or severely restrict, the individual from performing
18 Proposed Section 29 C.F.R. §1630.2(j)(8); 74 FED. REG. 48443 (September 23, 2009).
19 “Experts Discuss EEOC’s Proposed ADAAA Regulations,” http://www.hrtools.com/article.aspx?id=14160&
ekfxmen_noscript=1&ekfxmensel=e0fa05764_31_39.
20 74 FED. REG. 48447 (September 23, 2009).
21 http://www.eeoc.gov/facts/pandemic_flu.html. For a more detailed discussion of this issue see CRS Report R40866,
The Americans with Disabilities Act (ADA): Employment Issues and the 2009 Influenza Pandemic, by Nancy Lee
Jones.
22 534 U.S. 184 (2002).
23 42 U.S.C. §12101 note.
24 29 C.F.R. §1630.2(j) (2009).
Congressional Research Service
3
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
a major life activity in order to be considered a disability.”25 The Senate Managers’ Statement for
the ADA AA discussed the meaning of substantially limited and, after quoting from the
committee report for the original 1990 ADA, stated, “We particularly believe that this test, which
articulated an analysis that considered whether a person’s activities are limited in condition,
duration and manner, is a useful one.”26 It could be argued that the EEOC proposed regulations do
not conform with congressional intent. The EEOC, in its proposed appendix to the proposed
regulations notes that the Senate Managers’ Report does make reference to the “condition,
duration and manner” analysis, but argues that congressional intent to override the Supreme
Court’s Toyota decision is best served by an elimination of this analysis.27
The House debate contains a colloquy between Representatives Pete Stark and George Miller on
the subject of the meaning of “substantially limits” in the context of learning, reading, writing,
thinking, or speaking. The colloquy finds that an individual who has performed well academically
may still be considered an individual with a disability. Representative Stark stated the following:
Specific learning disabilities, such as dyslexia, are neurologically based impairments that
substantially limit the way these individuals perform major life activities, like reading or
learning, or the time it takes to perform such activities often referred to as the condition,
manner, or duration. This legislation will reestablish coverage for these individuals by
ensuring that the definition of this disability is broadly construed and the determination does
not consider the use of mitigating measures.28
The EEOC’s proposed regulations echo this colloquy, specifically stating the following:
An individual with a learning disability who is substantially limited in reading, learning,
thinking, or concentrating compared to most people, as indicated by the speed or ease with
which he can read, the time and effort required for him to learn, or the difficulty he
experiences in concentrating or thinking, is an individual with a disability, even if he has
achieved a high level of academic success, such as graduating from college. The
determination of whether an individual has a disability does not depend on what an
individual is able to do in spite of an impairment.29
Major Life Activities
The ADA Amendments Act specifically lists examples of major life activities including caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working. The act also states that a major life activity includes the operation of a major bodily
function.30 The House Judiciary Committee report indicates that “this clarification was needed to
ensure that the impact of an impairment on the operation of major bodily functions is not
overlooked or wrongly dismissed as falling outside the definition of ‘major life activities’ under
25 EEOC Proposed Regulations, to be codified at 29 C.F.R. § 1630.2(j)(1); 74 FED. REG. 48440 (September 23, 2009).
26 154 CONG. REC. S. 8346 (September 11, 2008).
27 74 FED. REG. 48446 (September 23, 2009).
28 154 CONG. REC. H. 8291 (September 17, 2008).
29 EEOC Proposed Regulations, to be codified at 29 C.F.R. § 1630.2(j)(6)(C); 74 FED. REG. 48442 (September 23,
2009).
30 42 U.S.C §12102(2).
Congressional Research Service
4
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
the ADA.”31 There had been judicial decisions which found that certain bodily functions had not
been covered by the definition of disability. For example, in Furnish v. SVI Sys., Inc.32 the
Seventh circuit held that an individual with cirrhosis of the liver due to infection with Hepatitis B
was not an individual with a disability because liver function was not “integral to one’s daily
existence.”
The proposed EEOC regulations echo the statutory listing of major life activities and add sitting,
reaching, and interacting with others, noting that this list is illustrative, not exhaustive.33 The
House Education and Labor Committee report provided examples for major life activities that
were not included in the statutory language, and included reaching and interacting with others.
The House report also included examples not in the proposed regulations: writing, engaging in
sexual activities, drinking, chewing, swallowing, and applying fine motor coordination.34
The Major Life Activity of Working
The ADA Amendments Act includes working as an example of a major life activity.35 What it
means to be substantially limited in the major life activity of working is also addressed by the
EEOC proposed regulations. The EEOC notes that usually an individual with a disability will be
substantially limited in another major life activity so that it would be unnecessary to determine
whether the individual was substantially limited regarding working. However, where that is not
the case, the EEOC proposes that “[a]n impairment substantially limits the major life activity of
working if it substantially limits an individual’s ability to perform, or to meet the qualifications
for, the type of work at issue.”36 The EEOC also states that this interpretation is to be construed
broadly and should “not demand extensive analysis.”37 “Type of work” is described in the EEOC
proposed appendix as including “the job the individual has been performing or for which he is
applying, and jobs that have qualifications or job-related requirements which the individuals
would be substantially limited in performing as a result of the impairment.”38
Prior to the enactment of the ADAAA, some courts had required a statistical analysis of the
availability of certain jobs in order to determine whether an individual was substantially limited
in the major life activity of working.39 The EEOC states that this statistical analysis will no longer
be needed.40 Using the proposed “type of work” standard, the EEOC envisions courts using
evidence from the individual regarding his or her educational and vocational background and the
limitations of the impairment. Generally, the EEOC would not consider necessary expert
testimony concerning the types of jobs in which an individual is substantially limited.41
31 H.Rept. 110-730, Part 2, at 16 (2008).
32 270 F.3d 445 (7th Cir. 2001).
33 EEOC Proposed Regulations, to be codified at 29 C.F.R. § 1630.2(i)(1); 74 FED. REG. 48440 (September 23, 2009).
34 H.Rept. 110-730, Part 1, at 11 (2008).
35 42 U.S.C §12102(2).
36 EEOC Proposed Regulations, to be codified at 29 C.F.R. § 1630.2(j)(7); 74 FED. REG. 48442 (September 23, 2009).
37 Id.
38 74 FED. REG. 48447 (September 23, 2009).
39 See e.g., Duncan v. WMATA, 240 F.3d 1110 (D.C. Cir. 2001).
40 74 FED. REG. 48448 (September 23, 2009).
41 Id.
Congressional Research Service
5
.
The Americans with Disabilities Act (ADA): Proposed Employment Regulations
As discussed, the terms “class of jobs” and “broad range of jobs in various classes” which are in
the existing regulations are eliminated in the proposed regulation in favor of the term “type of
work.” The EEOC describes this change as “more straightforward and easier to understand” as
well as being consistent with congressional intent for broad coverage. 42 However, this change has
been described as “the most problematic issue arising from the EEOC’s proposed regulations”
since it is not predicated on specific statutory language or legislative history.43 It could be argued,
as EEOC notes, that the change is consistent with congressional intent that the focus of an ADA
case should be on whether discrimination has occurred, not on whether the individual has met the
definition of disability.44 Such a change in the regulations could have a significant effect on
judicial determinations.
Author Contact Information
Nancy Lee Jones
Legislative Attorney
njones@crs.loc.gov, 7-6976
42 Id.
43 “Experts Discuss EEOC’s Proposed ADAAA Regulations,” http://www.hrtools.com/article.aspx?id=14160&
ekfxmen_noscript=1&ekfxmensel=e0fa05764_31_39.
44 74 FED. REG. 48448 (September 23, 2009).
Congressional Research Service
6