[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Rules and Regulations]
[Pages 16978-17017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6056]
[[Page 16977]]
Vol. 76
Friday,
No. 58
March 25, 2011
Part III
Equal Employment Opportunity Commission
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29 CFR Part 1630
Regulations To Implement the Equal Employment Provisions of the
Americans With Disabilities Act, as Amended; Final Rule
Federal Register / Vol. 76 , No. 58 / Friday, March 25, 2011 / Rules
and Regulations
[[Page 16978]]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1630
RIN 3046-AA85
Regulations To Implement the Equal Employment Provisions of the
Americans With Disabilities Act, as Amended
AGENCY: Equal Employment Opportunity Commission (EEOC).
ACTION: Final Rule.
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SUMMARY: The Equal Employment Opportunity Commission (the Commission or
the EEOC) issues its final revised Americans with Disabilities Act
(ADA) regulations and accompanying interpretive guidance in order to
implement the ADA Amendments Act of 2008. The Commission is responsible
for enforcement of title I of the ADA, as amended, which prohibits
employment discrimination on the basis of disability. Pursuant to the
ADA Amendments Act of 2008, the EEOC is expressly granted the authority
to amend these regulations, and is expected to do so.
DATES: Effective Date: These final regulations will become effective on
May 24, 2011.
FOR FURTHER INFORMATION CONTACT: Christopher J. Kuczynski, Assistant
Legal Counsel, or Jeanne Goldberg, Senior Attorney Advisor, Office of
Legal Counsel, U.S. Equal Employment Opportunity Commission at (202)
663-4638 (voice) or (202) 663-7026 (TTY). These are not toll-free-
telephone numbers. This document is also available in the following
formats: Large print, Braille, audio tape, and electronic file on
computer disk. Requests for this document in an alternative format
should be made to the Office of Communications and Legislative Affairs
at (202) 663-4191 (voice) or (202) 663-4494 (TTY) or to the
Publications Information Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION:
Introduction
The ADA Amendments Act of 2008 (the Amendments Act) was signed into
law by President George W. Bush on September 25, 2008, with a statutory
effective date of January 1, 2009. Pursuant to the Amendments Act, the
definition of disability under the ADA, 42 U.S.C. 12101, et seq., shall
be construed in favor of broad coverage to the maximum extent permitted
by the terms of the ADA as amended, and the determination of whether an
individual has a disability should not demand extensive analysis. The
Amendments Act makes important changes to the definition of the term
``disability'' by rejecting the holdings in several Supreme Court
decisions and portions of the EEOC's ADA regulations. The effect of
these changes is to make it easier for an individual seeking protection
under the ADA to establish that he or she has a disability within the
meaning of the ADA. Statement of the Managers to Accompany S. 3406, The
Americans with Disabilities Act Amendments Act of 2008 (2008 Senate
Statement of Managers); Committee on Education and Labor Report
together with Minority Views (to accompany H.R. 3195), H.R. Rep. No.
110-730 part 1, 110th Cong., 2d Sess. (June 23, 2008) (2008 House Comm.
on Educ. and Labor Report); Committee on the Judiciary Report together
with Additional Views (to accompany H.R. 3195), H.R. Rep. No. 110-730
part 2, 110th Cong., 2d Sess. (June 23, 2008) (2008 House Judiciary
Committee Report).
The Amendments Act retains the ADA's basic definition of
``disability'' as an impairment that substantially limits one or more
major life activities, a record of such an impairment, or being
regarded as having such an impairment. However, it changes the way that
these statutory terms should be interpreted in several ways, therefore
necessitating revision of the prior regulations and interpretive
guidance contained in the accompanying ``Appendix to Part 1630--
Interpretive Guidance on Title I of the Americans with Disabilities
Act,'' which are published at 29 CFR part 1630 (the appendix).
Consistent with the provisions of the Amendments Act and Congress's
expressed expectation therein, the Commission drafted a Notice of
Proposed Rulemaking (NPRM) that was circulated to the Office of
Management and Budget for review (pursuant to Executive Order 12866)
and to federal executive branch agencies for comment (pursuant to
Executive Order 12067). The NPRM was subsequently published in the
Federal Register on September 23, 2009 (74 FR 48431), for a sixty-day
public comment period. The NPRM sought comment on the proposed
regulations, which:
--Provided that the definition of ``disability'' shall be interpreted
broadly;
--Revised that portion of the regulations defining the term
``substantially limits'' as directed in the Amendments Act by providing
that a limitation need not ``significantly'' or ``severely'' restrict a
major life activity in order to meet the standard, and by deleting
reference to the terms ``condition, manner, or duration'' under which a
major life activity is performed, in order to effectuate Congress's
clear instruction that ``substantially limits'' is not to be
misconstrued to require the ``level of limitation, and the intensity of
focus'' applied by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184 (2002) (2008 Senate Statement of Managers at 6);
--Expanded the definition of ``major life activities'' through two non-
exhaustive lists:
--The first list included activities such as caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, sitting, reaching, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, interacting
with others, and working, some of which the EEOC previously identified
in regulations and sub-regulatory guidance, and some of which Congress
additionally included in the Amendments Act;
--The second list included major bodily functions, such as functions of
the immune system, special sense organs, and skin; normal cell growth;
and digestive, genitourinary, bowel, bladder, neurological, brain,
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions, many of which were
included by Congress in the Amendments Act, and some of which were
added by the Commission as further illustrative examples;
--Provided that mitigating measures other than ``ordinary eyeglasses or
contact lenses'' shall not be considered in assessing whether an
individual has a ``disability'';
--Provided that an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
active;
--Provided that the definition of ``regarded as'' be changed so that it
would no longer require a showing that an employer perceived the
individual to be substantially limited in a major life activity, and so
that an applicant or employee who is subjected to an action prohibited
by the ADA (e.g., failure to hire, denial of promotion, or termination)
because of an actual or perceived impairment will meet the ``regarded
as'' definition of disability, unless the impairment is both
``transitory and minor'';
--Provided that actions based on an impairment include actions based on
[[Page 16979]]
symptoms of, or mitigating measures used for, an impairment;
--Provided that individuals covered only under the ``regarded as''
prong are not entitled to reasonable accommodation; and,
--Provided that qualification standards, employment tests, or other
selection criteria based on an individual's uncorrected vision shall
not be used unless shown to be job related for the position in question
and consistent with business necessity.
To effectuate these changes, the NPRM proposed revisions to the
following sections of 29 CFR part 1630 and the accompanying provisions
of the appendix: Sec. 1630.1 (added (c)(3) and (4)); Sec.
1630.2(g)(3) (added cross-reference to 1630.2(l)); Sec. 1630.2 (h)
(replaced the term ``mental retardation'' with the term ``intellectual
disability''); Sec. 1630.2(i) (revised definition of ``major life
activities'' and provided examples); Sec. 1630.2(j) (revised
definition of ``substantially limits'' and provided examples); Sec.
1630.2(k) (provided examples of ``record of'' a disability); Sec.
1630.2(l) (revised definition of ``regarded as'' having a disability
and provided examples); Sec. 1630.2(m) (revised terminology); Sec.
1630.2(o) (added (o)(4) stating that reasonable accommodations are not
available to individuals who are only ``regarded as'' individuals with
disabilities); Sec. 1630.4 (renumbered section and added Sec.
1630.4(b) regarding ``claims of no disability''); Sec. 1630.9 (revised
terminology in Sec. 1630.9(c) and added Sec. 1630.9(e) stating that
an individual covered only under the ``regarded as'' definition of
disability is not entitled to reasonable accommodation); Sec. 1630.10
(revised to add provision on qualification standards and tests related
to uncorrected vision); and Sec. 1630.16(a) (revised terminology).
These regulatory revisions were explained in the proposed revised
part 1630 appendix containing the interpretive guidance. The Commission
originally issued the interpretive guidance concurrent with the
original part 1630 ADA regulations in order to ensure that individuals
with disabilities understand their rights under these regulations and
to facilitate and encourage compliance by covered entities. The
appendix addresses the major provisions of the regulations and explains
the major concepts. The appendix as revised will be issued and
published in the Code of Federal Regulations with the final
regulations. It will continue to represent the Commission's
interpretation of the issues discussed in the regulations, and the
Commission will be guided by it when resolving charges of employment
discrimination under the ADA.
Summary and Response to Comments
The Commission received well over 600 public comments on the NPRM,
including, among others: 5 comments from federal agencies that had not
previously commented during the inter-agency review process under E.O.
12067 or the Office of Management and Budget review process under E.O.
12866; 61 comments from civil rights groups, disability rights groups,
health care provider groups, and attorneys, attorney associations, and
law firms on their behalf; 48 comments from employer associations and
industry groups, as well as attorneys, attorney associations, and law
firms on their behalf; 4 comments from state governments, agencies, or
commissions, including one from a state legislator; and 536 comments
from individuals, including individuals with disabilities and their
family members or other advocates. Each of these comments was reviewed
and considered in the preparation of this final rule. The Commission
exercised its discretion to consider untimely comments that were
received by December 15, 2009, three weeks following the close of the
comment period, and these tallies include 8 such comments that were
received. The comments from individuals included 454 comments that
contained similar or identical content filed by or on behalf of
individuals with learning disabilities and/or attention-deficit/
hyperactivity disorder (AD/HD), although many of these comments also
included an additional discussion of individual experiences.
Consistent with EO 13563, this rule was developed through a process
that involved public participation. The proposed regulations, including
the preliminary regulatory impact and regulatory flexibility analyses,
were available on the Internet for a 60-day public-comment period, and
during that time the Commission also held a series of forums in order
to promote the open exchange of information. Specifically, the EEOC and
the U.S. Department of Justice Civil Rights Division also held four
``Town Hall Listening Sessions'' in Oakland, California on October 26,
2009; in Philadelphia, Pennsylvania on October 30, 2009, in Chicago,
Illinois on November 17, 2009, and in New Orleans, Louisiana on
November 20, 2009. During these sessions, Commissioners heard in-person
and telephonic comments on the NPRM from members of the public on both
a pre-registration and walk-in basis. More than 60 individuals and
representatives of the business/employer community and the disability
advocacy community from across the country offered comments at these
four sessions, a number of whom additionally submitted written
comments.
All of the comments on the NPRM received electronically or in hard
copy during the public comment period, including comments from the Town
Hall Listening Sessions, may be reviewed at the United States
Government's electronic docket system, http://www.regulations.gov,
under docket number EEOC-2009-0012. In most instances, this preamble
addresses the comments by issue rather than by referring to specific
commenters or comments by name.
In general, informed by questions raised in the public comments,
the Commission throughout the final regulations has refined language
used in the NPRM to clarify its intended meaning, and has also
streamlined the organization of the regulation to make it simpler to
understand. As part of these revisions, many examples were moved to the
appendix from the regulations, and NPRM language repeatedly stating
that no negative implications should be drawn from the citation to
particular impairments in the regulations and appendix was deleted as
superfluous, given that the language used makes clear that impairments
are referenced merely as examples. More significant or specific
substantive revisions are reviewed below, by provision.
The Commission declines to make changes requested by some
commenters to portions of the regulations and the appendix that we
consider to be unaffected by the ADA Amendments Act of 2008, such as to
29 CFR 630.3 (exceptions to definitions), 29 CFR 1630.2(r) (concerning
the ``direct threat'' defense), 29 CFR 1630.8 (association with an
individual with a disability), and portions of the appendix that
discuss the obligations of employers and individuals during the
interactive process following a request for reasonable accommodation.
The Commission has also declined to make revisions requested by
commenters relating to health insurance, disability and other benefit
programs, and the interaction of the ADA, the Family and Medical Leave
Act (FMLA), and workers' compensation laws. The Commission believes the
proposed regulatory language was clear with respect to any application
it may have to these issues.
[[Page 16980]]
Terminology
The Commission has made changes to some of the terminology used in
the final regulations and the appendix. For example, an organization
that represents individuals who have HIV and AIDS asked that the
regulations refer to ``HIV infection,'' instead of ``HIV and AIDS.'' An
organization representing persons with epilepsy sought deletion or
clarification of references to ``seizure disorders'' and ``seizure
disorders other than epilepsy,'' noting that ``people who have chronic
seizures have epilepsy, unless the seizure is due to [another
underlying impairment].'' This revision was not necessary since
revisions to the regulations resulted in deletion of NPRM Sec.
1630.2(j)(5)(iii) in which the reference to ``seizure disorder''
appeared. In addition, the Commission made further revisions to conform
the regulations and appendix to the statutory deletion of the term
``qualified individual with a disability'' throughout most of title I
of the ADA. The Commission did not make all changes in terminology
suggested by commenters, for example declining to substitute the term
``challenges'' for the terms ``disability'' and ``impairment,'' because
this would have been contrary to the well-established terminology that
Congress deliberately used in the ADA Amendments Act.
Section 1630.2(g): Disability
This section of the regulations includes the basic three-part
definition of the term ``disability'' that was preserved but redefined
in the ADA Amendments Act. For clarity, the Commission has referred to
the first prong as ``actual disability,'' to distinguish it from the
second prong (``record of'') and the third prong (``regarded as''). The
term ``actual disability'' is used as short-hand terminology to refer
to an impairment that substantially limits a major life activity within
the meaning of the first prong of the definition of disability. The
terminology selected is for ease of reference and is not intended to
suggest that individuals with a disability under the first prong
otherwise have any greater rights under the ADA than individuals whose
impairments are covered under the ``record of'' or ``regarded as''
prongs, other than the restriction created by the Amendments Act that
individuals covered only under the ``regarded as'' prong are not
entitled to reasonable accommodation.
Although an individual may be covered under one or more of these
three prongs of the definition, it appeared from comments that the NPRM
did not make explicit enough that the ``regarded as'' prong should be
the primary means of establishing coverage in ADA cases that do not
involve reasonable accommodation, and that consideration of coverage
under the first and second prongs will generally not be necessary
except in situations where an individual needs a reasonable
accommodation. Accordingly, in the final regulations, Sec. 1630.2(g)
and (j) and their accompanying interpretive guidance specifically state
that cases in which an applicant or employee does not require
reasonable accommodation can be evaluated solely under the ``regarded
as'' prong of the definition of ``disability.''
Section 1630.2(h): Impairment
Some comments pointed out that the list of body systems in the
definition of ``impairment'' in Sec. 1630.2(h) of the NPRM was not
consistent with the description of ``major bodily functions'' in Sec.
1630.2(i)(1)(ii) that was added due to the inclusion in the Amendments
Act of ``major bodily functions'' as major life activities. In
response, the Commission has added references to the immune system and
the circulatory system to Sec. 1630.2(h), because both are mentioned
in the definition of ``major bodily functions'' in Sec.
1630.2(i)(1)(ii). Other apparent discrepancies between the definition
of ``impairment'' and the list of ``major bodily functions'' can be
accounted for by the fact that major bodily functions are sometimes
defined in terms of the operation of an organ within a body system. For
example, functions of the brain (identified in Sec. 1630.2(i)) are
part of the neurological system and may affect other body systems as
well. The bladder, which is part of the genitourinary system, is
already referenced in Sec. 1630.2(h). In response to comments, the
Commission has also made clear that the list of body systems in Sec.
1630.2(h)(1) is non-exhaustive, just as the list of mental impairments
in Sec. 1630.2(h)(2) has always made clear with respect to its
examples. The Commission has also amended the final appendix to Sec.
1630.2(h) to conform to these revisions.
The Commission received several comments seeking explanation of
whether pregnancy-related impairments may be disabilities. To respond
to these inquiries, the final appendix states that although pregnancy
itself is not an impairment, and therefore is not a disability, a
pregnancy-related impairment that substantially limits a major life
activity is a disability under the first prong of the definition.
Alternatively, a pregnancy-related impairment may constitute a ``record
of'' a substantially limiting impairment, or may be covered under the
``regarded as'' prong if it is the basis for a prohibited employment
action and is not ``transitory and minor.''
Section 1630.2(i): Major Life Activities
A number of comments, mostly on behalf of individuals with
disabilities, suggested that the Commission add more examples of major
life activities, particularly to the first non-exhaustive list,
including but not limited to typing, keyboarding, writing, driving,
engaging in sexual relations, and applying fine motor coordination.
Other suggestions ranged widely, including everything from squatting
and getting around inside the home to activities such as farming,
ranching, composting, operating water craft, and maintaining an
independent septic tank.
The Commission does not believe that it is necessary to decide
whether each of the many other suggested examples is in fact a major
life activity, but we emphasize again that the statutory and regulatory
examples are non-exhaustive. We also note that some of the activities
that commenters asked to be added may be part of listed major life
activities, or may be unnecessary to establishing that someone is an
individual with a disability in light of other changes to the
definition of ``disability'' resulting from the Amendments Act.
Some employer groups suggested that major life activities other
than those specifically listed in the statute be deleted, claiming that
the EEOC had exceeded its authority by including additional ones.
Specific concerns were raised about the inclusion of ``interacting with
others'' on behalf of employers who believed that recognizing this
major life activity would limit the ability to discipline employees for
misconduct.
Congress expressly provided that the two lists of examples of major
life activities are non-exhaustive, and the Commission is authorized to
recognize additional examples of major life activities. The final
regulations retain ``interacting with others'' as an example of a major
life activity, consistent with the Commission's long-standing position
in existing enforcement guidance.
One disability rights group also asked the Commission to delete the
long-standing definition of major life activities as those basic
activities that most people in the general population ``can perform
with little or no difficulty'' and substitute a lower standard. Upon
consideration, we think that, while the ability of most people to
perform the
[[Page 16981]]
activity is relevant when evaluating whether an individual is
substantially limited, it is not relevant to whether the activity in
question is a major life activity. Consequently, the final rule, like
the statute itself, simply provides examples of activities that qualify
as ``major life activities'' because of their relative importance.
Finally, some commenters asked that the final rule state explicitly
that the standard from Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184 (2002), for determining whether an activity qualifies as a
major life activity--that it be of ``central importance to most
people's daily lives''--no longer applies after the ADA Amendments Act.
The Commission agrees and has added language to this effect in the
final regulations.
We have provided this clarification in the regulations, and, in the
appendix, we explain what this means with respect to, for example,
activities such as lifting and performing manual tasks. The final
regulations also state that in determining other examples of major life
activities, the term ``major'' shall not be interpreted strictly to
create a demanding standard for disability, and provide that whether an
activity is a ``major life activity'' is not determined by reference to
whether it is of ``central importance to daily life.''
Section 1630.2(j): Substantially Limits
Overview
Although much of Sec. 1630.2(j) of the final regulations is
substantively the same as Sec. 1630.2(j) of the NPRM, the structure of
the section is somewhat different. Many of the examples that were in
the text of the proposed rule have been relocated to the appendix.
Section 1630.2(j)(1) in the final regulations lists nine ``rules of
construction'' that are based on the statute itself and are essentially
consistent with the content of Sec. Sec. 1630.2(j)(1) through (4) of
the NPRM. Section 1630.2(j)(2) in the final regulations makes clear
that the question of whether an individual is substantially limited in
a major life activity is not relevant to coverage under the ``regarded
as'' prong. Section 1630.2(j)(3)(ii) in the final regulations notes
that some impairments will, given their inherent nature, virtually
always be found to impose a substantial limitation on a major life
activity. Therefore, with respect to these types of impairments, the
necessary individualized assessment should be particularly simple and
straightforward. In addition, Sec. 1630.2(j)(3)(iii) includes examples
of impairments that should easily be found to substantially limit a
major life activity. These are the same impairments that were included
as examples in Sec. 1630.2(j)(5) of the NPRM. In response to comments
(discussed below), Sec. 1630.2(j)(4) discusses the concepts of
``condition, manner, or duration'' that may be useful in evaluating
whether an individual is substantially limited in a major life activity
in some cases. Section 1630.2(j)(5) in the final regulations offers
examples of mitigating measures, and Sec. 1630.2(j)(6) contains the
definition of ``ordinary eyeglasses or contact lenses.'' The discussion
of how to determine whether someone is substantially limited in working
in those rare cases where this may be at issue now appears in the
appendix rather than the regulations, and has been revised as explained
below. Finally, NPRM Sec. 1630.2(j)(6), describing certain impairments
that may or may not meet the definition of ``substantially limits,''
and NPRM Sec. 1630.2(j)(8), describing certain impairments that
usually will not meet the definition of ``substantially limits,'' have
been deleted in favor of an affirmative statement in both the final
regulations and the appendix that not every impairment will constitute
a disability within the meaning of Sec. 1630.2(j) (defining
``substantially limits'').
Meaning of ``Substantially Limits''
Many commenters asked that the Commission more affirmatively define
``substantially limits.'' Suggestions for further definitions of
``substantial'' included, among others, ``ample,'' ``considerable,''
``more than moderately restricts,'' ``discernable degree of
difficulty,'' ``makes achievement of the activity difficult,'' and
``causes a material difference from the ordinary processes by which
most people in the general population perform the major life
activity.'' The Commission has not added terms to quantify
``substantially limits'' in the final regulations. We believe this is
consistent with Congress's express rejection of such an approach in the
statute, which instead simply indicates that ``substantially limits''
is a lower threshold than ``prevents'' or ``severely or significantly
restricts,'' as prior Supreme Court decisions and the EEOC regulations
had defined the term. The Commission ultimately concluded that a new
definition would inexorably lead to greater focus and intensity of
attention on the threshold issue of coverage than intended by Congress.
Therefore, following Congress's approach, the final regulations provide
greater clarity and guidance by providing nine rules of construction
that must be applied in determining whether an impairment substantially
limits (or substantially limited) a major life activity. These rules
are based on the provisions in the Amendments Act, and will guide
interpretation of the term ``substantially limits.''
Comparison to ``Most People''
The regulations say that in determining whether an individual has a
substantially limiting impairment, the individual's ability to perform
a major life activity should be compared to that of ``most people in
the general population.'' Both employer groups and organizations
writing on behalf of individuals with disabilities said that the
concept of ``intra-individual'' differences (disparities between an
individual's aptitude and expected achievement versus the individual's
actual achievement) that appears in the discussion of learning
disabilities in the NPRM's appendix is inconsistent with the rule that
comparison of an individual's limitations is always made by reference
to most people. However, the Commission also received some comments
from disability groups requesting that, in the assessment of whether an
individual is substantially limited, the regulations allow for
comparisons between an individual's experiences with and without an
impairment, and comparisons between an individual and her peers--in
addition to comparisons of the individual to ``most people.''
The Commission agrees that the reference to ``intra-individual''
differences, without further explanation, may be misconstrued as at
odds with the agency's view that comparisons are always made between an
individual and most people. Therefore, the Commission has added
language to the discussion of learning disabilities in the appendix, in
Sec. 1630.2(j)(1)(v), clarifying that although learning disabilities
may be diagnosed in terms of the difference between an individual's
aptitude and actual versus expected achievement, a comparison to ``most
people'' can nevertheless be made. Moreover, the appendix provides
examples of ameliorative effects of mitigating measures that will be
disregarded in making this comparison, and notes legislative history
rejecting the assumption that an individual who has performed well
academically cannot be substantially limited in activities such as
learning, reading, writing, thinking, or speaking.
[[Page 16982]]
Relevance of Duration of an Impairment's Limitations in Assessing
``Substantially Limits''
Many commenters expressed their view that the NPRM failed to
clarify, or created confusion regarding, how long an impairment's
limitation(s) must last in order for the impairment to be considered
substantially limiting. Some thought the Commission was saying that
impairments that are ``transitory and minor'' under the third prong can
nevertheless be covered under the first or second prong of the
definition of ``disability.'' A few comments suggested that the
Commission adopt a minimum duration of six months for an impairment to
be considered substantially limiting, but more commenters simply wanted
the Commission to specify whether, and if so what, duration is
necessary to establish a substantial limitation.
In enacting the ADA Amendments Act, Congress statutorily defined
``transitory'' for purposes of the ``transitory and minor'' exception
to newly-defined ``regarded as'' coverage as ``an impairment with an
actual or expected duration of 6 months or less,'' but did not include
that limitation with respect to the first or second prong in the
statute. 42 U.S.C. 12102(3)(B). Moreover, prior to the Amendments Act,
it had been the Commission's long-standing position that if an
impairment substantially limits, is expected to substantially limit, or
previously substantially limited a major life activity for at least
several months, it could be a disability under Sec. 1630.2(g)(1) or a
record of a disability under Sec. 1630.2(g)(2). See, e.g., EEOC
Compliance Manual Section 902, ``Definition of the Term Disability,''
Sec. 902(4)(d) (originally issued in 1995), http://www.eeoc.gov/policy/docs/902cm.html; EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities (1997), http://www.eeoc.gov/policy/docs/psych.html. A six-month durational requirement
would represent a more stringent standard than the EEOC had previously
required, not the lower standard Congress sought to bring about through
enactment of the ADA Amendments Act. Therefore, the Commission declines
to provide for a six-month durational minimum for showing disability
under the first prong or past history of a disability under the second
prong.
Additionally, the Commission has not in the final regulations
specified any specific minimum duration that an impairment's effects
must last in order to be deemed substantially limiting. This accurately
reflects the intent of the ADA Amendments Act, as conveyed in the joint
statement submitted by co-sponsors Hoyer and Sensenbrenner. That
statement explains that the duration of an impairment is only one
factor in determining whether the impairment substantially limits a
major life activity, and impairments that last only a short period of
time may be covered if sufficiently severe. See Joint Hoyer-
Sensenbrenner Statement on the Origins of the ADA Restoration Act of
2008, H.R. 3195 at 5.
Mitigating Measures
The final regulations retain, as one of the nine rules of
construction, the statutory requirement that mitigating measures, other
than ordinary eyeglasses or contact lenses, must not be considered in
determining whether an individual has a disability. Several
organizations representing persons with disabilities suggested adding
more examples of mitigating measures, including: job coaches, service
animals, personal assistants, psychotherapy and other ``human-
mediated'' treatments, and some specific devices used by persons who
have hearing and/or vision impairments.
In the final regulations, the Commission has added psychotherapy,
behavioral therapy, and physical therapy. In the appendix, the
Commission has explained why other suggested examples were not
included, noting first that the list is non-exhaustive. Some suggested
additional examples of mitigating measures are also forms of reasonable
accommodation, such as the right to use a service animal or job coach
in the workplace. The Commission emphasizes that its decision not to
list certain mitigating measures does not create any inference that
individuals who use these measures would not meet the definition of
``disability.'' For example, as the appendix points out, someone who
uses a service animal will still be able to demonstrate a substantial
limitation in major life activities such as seeing, hearing, walking,
or performing manual tasks (depending on the reason the service animal
is used).
Several employer groups asked the Commission to identify legal
consequences that follow from an individual's failure to use mitigating
measures that would alleviate the effects of an impairment. For
example, some commenters suggested that such individuals would not be
entitled to reasonable accommodation. The Commission has included a
statement in the appendix pointing out that the determination of
whether or not an individual's impairment substantially limits a major
life activity is unaffected by whether the individual chooses to forgo
mitigating measures. For individuals who do not use a mitigating
measure (including, for example, medication or reasonable accommodation
that could alleviate the effects of an impairment), the availability of
such measures has no bearing on whether the impairment substantially
limits a major life activity. The limitations imposed by the impairment
on the individual, and any negative (non-ameliorative) effects of
mitigating measures used, determine whether an impairment is
substantially limiting. The origin of the impairment, whether its
effects can be mitigated, and any ameliorative effects of mitigating
measures in fact used may not be considered in determining if the
impairment is substantially limiting. However, the use or non-use of
mitigating measures, and any consequences thereof, including any
ameliorative and non-ameliorative effects, may be relevant in
determining whether the individual is qualified or poses a direct
threat to safety.
Commenters also asked for a clear statement regarding whether the
non-ameliorative effects of mitigating measures may be considered in
determining whether an impairment is substantially limiting. Some also
asked for guidance regarding whether the positive and negative effects
of mitigating measures can be taken into account when determining
whether an individual needs a reasonable accommodation.
The final regulations affirmatively state that non-ameliorative
effects may be considered in determining whether an impairment is
substantially limiting. The appendix clarifies, however, that in many
instances it will not be necessary to consider the non-ameliorative
effects of mitigating measures to determine that an impairment is
substantially limiting. For example, whether diabetes is substantially
limiting will most often be analyzed by considering its effects on
endocrine functions in the absence of mitigating measures such as
medications or insulin, rather than by considering the measures someone
must undertake to keep the condition under control (such as frequent
blood sugar and insulin monitoring and rigid adherence to dietary
restrictions). Likewise, whether someone with kidney disease has a
disability will generally be assessed by considering limitations on
kidney and bladder functions that would occur without dialysis rather
than by reference to the burdens that dialysis treatment imposes. The
[[Page 16983]]
appendix also states that both the ameliorative and non-ameliorative
effects of mitigating measures may be relevant in deciding non-coverage
issues, such as whether someone is qualified, needs a reasonable
accommodation, or poses a direct threat.
Some commenters also asked for a more precise definition than the
statutory definition of the term ``ordinary eyeglasses or contact
lenses.'' For example, one commenter proposed that ``fully corrected''
means visual acuity of 20/20. Another commenter representing human
resources professionals from large employers suggested a rule that any
glasses that can be obtained from a ``walk-in retail eye clinic'' would
be considered ordinary eyeglasses or contact lenses, including bi-focal
and multi-focal lenses. An organization representing individuals who
are blind or have vision impairments wanted us to say that glasses that
enhance or augment a visual image but that may resemble ordinary
eyeglasses should not be considered when determining whether someone is
substantially limited in seeing.
The final regulations do not adopt any of these approaches. The
Commission believes that the NPRM was clear that the distinction
between ``ordinary eyeglasses or contact lenses'' on the one hand and
``low vision devices'' on the other is how they function, not how they
look or where they were purchased. Whether lenses fully correct visual
acuity or eliminate refractive error is best determined on the basis of
current and objective medical evidence. The Commission emphasizes,
however, that even if such evidence indicates that visual acuity is
fully corrected or that refractive error is eliminated, this means only
that the effect of the eyeglasses or contact lenses shall be considered
in determining whether the individual is substantially limited in
seeing, not that the individual is automatically excluded from the
law's protection.
Numerous comments were made on the proposed inclusion of surgical
interventions as mitigating measures. Many asked the Commission to
delete the reference to surgical interventions entirely; others wanted
us to delete the qualification that surgical interventions that
permanently eliminate an impairment are not considered mitigating
measures. Some comments proposed language that would exclude from
mitigating measures those surgical interventions that ``substantially
correct'' an impairment. Some comments endorsed the definition as
written, but suggested we provide examples of surgical interventions
that would permanently eliminate an impairment.
The Commission has eliminated ``surgical interventions, except for
those that permanently eliminate an impairment'' as an example of a
mitigating measure in the regulation, given the confusion evidenced in
the comments about how this example would apply. Determinations about
whether surgical interventions should be taken into consideration when
assessing whether an individual has a disability are better assessed on
a case-by-case basis.
Finally, some commenters asked the Commission to address generally
what type of evidence would be sufficient to establish whether an
impairment would be substantially limiting without the ameliorative
effects of a mitigating measure that the individual uses. In response
to such comments, the Commission has added to the appendix a statement
that such evidence could include evidence of limitations that a person
experienced prior to using a mitigating measure, evidence concerning
the expected course of a particular disorder absent mitigating
measures, or readily available and reliable information of other types.
Impairments That Are Episodic or in Remission
One commenter suggested that the regulatory provision on
impairments that are ``episodic or in remission'' should be clarified
to eliminate from coverage progressive impairments such as Parkinson's
Disease on the ground that they would not be disabilities in the
``early stages.'' The Commission declines to make this revision,
recognizing that because ``major bodily functions'' are themselves
``major life activities,'' Parkinson's Disease even in the ``early
stages'' can substantially limit major life activities, such as brain
or neurological functions. Some employer groups also asked the
Commission to provide further guidance on distinguishing between
episodic conditions and those that may, but do not necessarily, become
episodic, as indicated by subsequent ``flare ups.'' As the Commission
has indicated in the regulations and appendix provisions on mitigating
measures, these questions may in some cases be resolved by looking at
evidence such as limitations experienced prior to the use of the
mitigating measure or the expected course of a disorder absent
mitigating measures. However, recognizing that there may be various
ways that an impairment may be shown to be episodic, we decline to
address such evidentiary issues with any greater specificity in the
rulemaking.
Predictable Assessments
Section 1630.2(j)(5) of the NPRM provided examples of impairments
that would ``consistently meet the definition of disability'' in light
of the statutory changes to the definition of ``substantially limits.''
Arguing that Sec. 1630.2(j)(5) of the NPRM created a ``per se list''
of disabilities, many commenters, particularly representatives of
employers and employer organizations, asked for the section's deletion,
so that all impairments would be subject to the same individualized
assessment. Equally strong support for this section was expressed by
organizations representing individuals with disabilities, some of whom
suggested that impairments such as learning disabilities, AD/HD, panic
and anxiety disorder, hearing impairments requiring use of a hearing
aid or cochlear implant, mobility impairments requiring the use of
canes, crutches, or walkers, and multiple chemical sensitivity be added
to the list of examples in NPRM Sec. 1630.2(j)(5). Many of the
commenters who expressed support for this section also asked that NPRM
Sec. 1630.2(j)(6) (concerning impairments that may be substantially
limiting for some individuals but not for others) be deleted, as it
seemed to suggest that these impairments were of lesser significance
than those in NPRM Sec. (j)(5).
In response to these concerns, the Commission has revised this
portion of the regulations to make clear that the analysis of whether
the types of impairments discussed in this section (now Sec.
1630.2(j)(3)) substantially limit a major life activity does not depart
from the hallmark individualized assessment. Rather, applying the
various principles and rules of construction concerning the definition
of disability, the individualized assessment of some types of
impairments will, in virtually all cases, result in a finding that the
impairment substantially limits a major life activity, and thus the
necessary individualized assessment of these types of impairments
should be particularly simple and straightforward. The regulations also
provide examples of impairments that should easily be found to
substantially limit a major life activity.
The Commission has also deleted Sec. 1630.2(j)(6) that appeared in
the NPRM. However, the Commission did not agree with those commenters
who thought it was necessary to include in Sec. 1630.2(j)(3) of the
final regulations all the impairments that were the subject of
[[Page 16984]]
examples in NPRM Sec. 1630.2(j)(6), or that other impairments not
previously mentioned in either section should be included in (j)(3).
The Commission has therefore declined to list additional impairments in
Sec. 1630.2(j)(3) of the final regulations. The regulations as written
permit courts to conclude that any of the impairments mentioned in
Sec. 1630.2(j)(6) of the NPRM or other impairments ``substantially
limit'' a major life activity.
Section 1630.2(j)(8) of the NPRM provided examples of impairments
that ``are usually not disabilities.'' Some commenters asked for
clarity concerning whether, and under what circumstances, any of the
impairments included in the examples might constitute disabilities
under the first or second prong, or asked that the section title be
revised by replacing ``usually'' with ``consistently.'' Other
commenters asked whether the listed impairments would be considered
``transitory and minor'' for purposes of the ``regarded as''
definition, or wanted clarification that the listed impairments were
not necessarily ``transitory and minor'' in all instances. A few
organizations recommended deletion of certain impairments from the list
of examples, such as a broken bone that is expected to heal completely
and a sprained joint. In the final regulations, the Commission deleted
this section, again due to the confusion it presented.
Condition, Manner, or Duration
Comments from both employers and groups writing on behalf of
individuals with disabilities proposed that the Commission continue to
use the terms ``condition, manner, or duration,'' found in the appendix
accompanying EEOC's 1991 ADA regulations, as part of the definition of
``substantially limits.'' Many employer groups seemed to think the
concepts were relevant in all cases; disability groups generally
thought they could be relevant in some cases, but do not need to be
considered rigidly in all instances.
In response, the Commission has inserted the terms ``condition,
manner, or duration'' as concepts that may be relevant in certain cases
to show how an individual is substantially limited, although the
concepts may often be unnecessary to conduct the analysis of whether an
impairment ``substantially limits'' a major life activity. The
Commission has also included language to illustrate what these terms
mean, borrowing from the examples in Sec. 1630.2(j)(6) of the NPRM,
which has been deleted from the final regulations. For example,
``condition, manner, or duration'' might mean the difficulty or effort
required to perform a major life activity, pain experienced when
performing a major life activity, the length of time a major life
activity can be performed, or the way that an impairment affects the
operation of a major bodily function.
Substantially Limited in Working
The proposed rule had replaced the concepts of a ``class'' or
``broad range'' of jobs from the 1991 regulations defining substantial
limitation in working with the concept of a ``type of work.'' A number
of commenters asked the Commission to restore the concepts of a class
or broad range of jobs. Many other comments supported the ``type of
work'' approach taken in the NPRM. Some supporters of the ``type of
work'' approach sought additional examples of types of work (e.g., jobs
requiring working around chemical fumes and dust, or jobs that require
keyboarding or typing), and requested that certain statements in the
appendix be moved into the regulations.
In issuing the final regulations, the Commission has moved the
discussion of how to analyze the major life activity of working to the
appendix, since no other major life activity is singled out in the
regulations for elaboration. Rather than attempting to articulate a new
``type of work'' standard that may cause unnecessary confusion, the
Commission has retained the original part 1630 ``class or broad range
of jobs'' formulation in the appendix, although we explain how this
standard must be applied differently than it was prior to the
Amendments Act. We also provide a more streamlined discussion and
examples of the standard to comply with Congress's exhortation in the
Amendments Act to favor broad coverage and disfavor extensive analysis
(Section 2(b)(5) (Findings and Purposes)).
Section 1630.2(k): Record of a Disability
Some commenters asked the Commission to revise this section to
state that a ``record'' simply means a past history of a substantially
limiting impairment, not necessarily that the past history has to be
established by a specific document. Although some commenters sought
deletion of the statement (in Sec. Sec. 1630.2(o) and 1630.9) that
individuals covered under the ``record of'' prong may get reasonable
accommodations, others agreed that the language of the Amendments Act
is consistent with the Commission's long-held position and wanted
examples of when someone with a history of a substantially limiting
impairment would need accommodation. Some comments recommended that the
Commission make the point that a person with cancer (identified in one
of the NPRM examples) could also be covered under the first prong.
The final regulations streamline this section by moving the
examples of ``record of'' disabilities to the appendix. The Commission
has also added a paragraph to this section to make clear that
reasonable accommodations may be required for individuals with a record
of an impairment that substantially limits a major life activity, and
has provided an example of when a reasonable accommodation may be
required. The Commission has not added language to state explicitly
that the past history of an impairment need not be reflected in a
specific document; we believe that this is clear in current law, and
this point is reflected in the appendix.
Section 1630.2(l): Regarded As
Many comments revealed confusion as to both the new statutory and
proposed regulatory definition of the ``regarded as'' prong in general,
and the ``transitory and minor'' exception in particular. Other
comments simply requested clarification of the ``transitory and minor''
exception. The final regulations provide further clarification and
explanation of the scope of ``regarded as'' coverage.
The final regulations and appendix make clear that even if coverage
is established under the ``regarded as'' prong, the individual must
still establish the other elements of the claim (e.g., that he or she
is qualified) and the employer may raise any available defenses. In
other words, a finding of ``regarded as'' coverage is not itself a
finding of liability.
The final regulations and appendix also explain that the fact that
the ``regarded as'' prong requires proof of causation in order to show
that a person is covered does not mean that proving a claim based on
``regarded as'' coverage is complex. As noted in the appendix, while a
person must show, both for coverage under the ``regarded as'' prong and
for ultimate liability, that he or she was subjected to a prohibited
action because of an actual or perceived impairment, this showing need
only be made once. Thus, a person proceeding under the ``regarded as''
prong may demonstrate a violation of the ADA by meeting the burden of
proving that: (1) He or she has an impairment or was perceived by a
covered entity to have an impairment, and (2) the covered entity
discriminated against him or her because of the impairment in violation
of the statute. Finally, the final regulations make clear that an
employer
[[Page 16985]]
may show that an impairment is ``transitory and minor'' as a defense to
``regarded as'' coverage. 29 CFR 1630.15(f).
The final regulations and appendix, at Sec. 1630.2(j), also make
clear that the concepts of ``major life activities'' and
``substantially limits'' (relevant when evaluating coverage under the
first or second prong of the definition of ``disability'') are not
relevant in evaluating coverage under the ``regarded as'' prong. Thus,
in order to have regarded an individual as having a disability, a
covered entity need not have considered whether a major life activity
was substantially limited, and an individual claiming to have been
regarded as disabled need not demonstrate that he or she is
substantially limited in a major life activity.
Concerning specific issues with which commenters disagreed, some
criticized examples of impairments that the Commission said would be
considered transitory and minor--specifically, a broken leg that heals
normally and a sprained wrist that limits someone's ability to type for
three weeks. These commenters claimed that these impairments, though
transitory, are not minor. Consistent with its effort to streamline the
text of the final rule, the Commission has deleted examples that
appeared in the NPRM, illustrating how the ``transitory and minor''
exception applies. However, the appendix to Sec. 1630.2(l) as well as
the defense as set forth in Sec. 1630.15(f) include examples involving
an employer that takes a prohibited action against an employee with
bipolar disorder that the employer claims it believed was transitory
and minor, and an employer that takes a prohibited action against an
individual with a transitory and minor hand wound that the employer
believes is symptomatic of HIV infection. These examples are intended
to illustrate the point that whether an actual or perceived impairment
is transitory and minor is to be assessed objectively.
In response to a specific request in the preamble to the NPRM, the
Commission received many comments about the position in the proposed
rule that actions taken because of an impairment's symptoms or because
of the use of mitigating measures constitute actions taken because of
an impairment under the ``regarded as'' prong. Individuals with
disabilities and organizations representing them for the most part
endorsed the position, noting that the symptoms of, and mitigating
measures used for, an impairment are part and parcel of the impairment
itself, and that this provision is necessary to prevent employers from
evading ``regarded as'' coverage by asserting that the challenged
employment action was taken because of the symptom or medication, not
the impairment, even when it knew of the connection between the two.
Others asked the Commission to clarify that this interpretation applied
even where the employer had no knowledge of the connection between the
impairment and the symptom or mitigating measure. However, employers
and organizations representing employers asked that this language be
deleted in its entirety. They were particularly concerned that an
employer could be held liable under the ADA for disciplining an
employee for violating a workplace rule, where the violation resulted
from an underlying impairment of which the employer was unaware.
In light of the complexity of this issue, the Commission believes
that it requires a more comprehensive treatment than is possible in
this regulation. Therefore, the final regulations do not explicitly
address the issue of discrimination based on symptoms or mitigating
measures under the ``regarded as'' prong. No negative inference
concerning the merits of this issue should be drawn from this deletion.
The Commission's existing position, as expressed in its policy
guidance, court filings, and other regulatory and sub-regulatory
documents, remains unchanged.
Finally, because the new law makes clear that an employer regards
an individual as disabled if it takes a prohibited action against the
individual because of an actual or perceived impairment that was not
``transitory and minor,'' whether or not myths, fears, or stereotypes
about disability motivated the employer's decision, the Commission has
deleted certain language about myths, fears, and stereotypes from the
1991 version of this section of the appendix that might otherwise be
misconstrued when applying the new ADA Amendments Act ``regarded as''
standard.
Issues Concerning Evidence of Disability
The Commission also received comments from both employer groups and
organizations writing on behalf of people with disabilities asking that
the regulations address what kind of information an employer may
request about the nature of an impairment (e.g., during the interactive
process in response to a request for reasonable accommodation), and the
amount and type of evidence that would be sufficient in litigation to
establish the existence of a disability. Some employer groups, for
example, asked the Commission to emphasize that a person requesting a
reasonable accommodation must participate in the interactive process by
providing appropriate documentation where the disability and need for
accommodation are not obvious or already known. Organizations writing
on behalf of persons with disabilities asked the Commission to state in
the regulations that a diagnosis of one of the impairments in NPRM
Sec. 1630.2(j)(5) is sufficient to establish the existence of a
disability; that the Commission should emphasize, even more so than in
the NPRM, that proving disability is not an onerous burden; that in
many instances the question of whether a plaintiff in litigation has a
disability should be the subject of stipulation by the parties; and
that an impairment's effects on major bodily functions should be
considered before its effects on other major life activities in
determining whether an impairment substantially limits a major life
activity. Both employer groups and organizations submitting comments on
behalf of individuals with disabilities asked the Commission to clarify
the statement in the NPRM that objective scientific and medical
evidence can be used to establish the existence of a disability.
The Commission believes that most of these proposed changes
regarding evidentiary matters are either unnecessary or not appropriate
to address in the regulations. For example, the Commission has stated
repeatedly in numerous policy documents and technical assistance
publications that individuals requesting accommodation must provide
certain supporting medical information if the employer requests it, and
that the employer is permitted to do so if the disability and/or need
for accommodation are not obvious or already known. The ADA Amendments
Act does not alter this requirement. The Commission also does not think
it appropriate to comment in the regulations or the appendix on how ADA
litigation should be conducted, such as whether parties should
stipulate to certain facts or whether use of certain major life
activities by litigants or courts should be preferred.
However, based on the comments received, the Commission has
concluded that clarification of language in the NPRM regarding use of
scientific and medical evidence is warranted. The final regulations, at
Sec. 1630.2(j)(1)(v), state that the comparison of an individual's
performance of a major life activity to the performance of the same
major life activity by most people in the
[[Page 16986]]
general population usually will not require scientific, medical, or
statistical analysis. However, the final regulations also state that
this provision is not intended to prohibit the presentation of
scientific, medical, or statistical evidence to make such a comparison
where appropriate. In addition, the appendix discusses evidence that
may show that an impairment would be substantially limiting in the
absence of the ameliorative effects of mitigating measures.
Section 1630.2(m): Definition of ``Qualified''
The final regulations and accompanying appendix make slight changes
to this section to eliminate use of the term ``qualified individual
with a disability,'' consistent with the ADA Amendments Act's
elimination of that term throughout most of title I of the ADA.
Section 1630.2(o): Reasonable Accommodation
The Commission has added a new provision (o)(4) in Sec. 1630.2(o)
of the final regulations, providing that a covered entity is not
required to provide a reasonable accommodation to an individual who
meets the definition of disability solely under the ``regarded as''
prong (Sec. 1630.2(g)(1)(iii)). The Commission has also made changes
to this section to eliminate use of the term ``qualified individual
with a disability,'' consistent with the ADA Amendments Act's
elimination of that term throughout most of title I of the ADA.
Section 1630.4: Discrimination Prohibited
The Commission has reorganized Sec. 1630.4 of the final
regulations, adding a new provision in Sec. 1630.4(b) to provide, as
stated in the Amendments Act, that nothing in this part shall provide
the basis for a claim that an individual without a disability was
subject to discrimination because of his lack of disability, including
a claim that an individual with a disability was granted an
accommodation that was denied to an individual without a disability.
Section 1630.9: Not Making Reasonable Accommodation
The final regulations include a technical revision to Sec.
1630.9(c) to conform citations therein to the amended ADA. In addition,
a new Sec. 1630.9(e) has been added stating again that a covered
entity is not required to provide a reasonable accommodation to an
individual who meets the definition of disability solely under the
``regarded as'' prong (Sec. 1630.2(g)(1)(iii)). In addition, the
appendix to Sec. 1630.9 is amended to revise references to the term
``qualified individual with a disability'' in order to conform to the
statutory changes made by the Amendments Act.
Section 1630.10: Qualification Standards, Tests, and Other Selection
Criteria.
The final regulations include a new Sec. 1630.10(b) explaining the
amended ADA provision regarding qualification standards and tests
related to uncorrected vision.
Section 1630.15: Defenses
The final regulations include a new Sec. 1630.15(f), and
accompanying appendix section, explaining the ``transitory and minor''
defense to a charge of discrimination where coverage would be shown
solely under the ``regarded as'' prong of the definition.
Section 1630.16: Specific Activities Permitted
The final regulations include terminology revisions to Sec. Sec.
1630.16(a) and (f) to conform to the statutory deletion of the term
``qualified individual with a disability'' in most parts of title I.
Regulatory Procedures
Final Regulatory Impact Analysis
Executive Orders 12866 and 13563
The final rule, which amends 29 CFR Part 1630 and the accompanying
interpretive guidance, has been drafted and reviewed in accordance with
EO 12866, 58 FR 51735 (Sept. 30, 1993), Principles of Regulations, and
EO 13563, 76 FR 3821, (Jan. 21, 2011), Improving Regulation and
Regulatory Review. The rule is necessary to bring the Commission's
prior regulations into compliance with the ADA Amendments Act of 2008,
which became effective January 1, 2009, and explicitly invalidated
certain provisions of the prior regulations. The new final regulations
and appendix are intended to add to the predictability and consistency
of judicial interpretations and executive enforcement of the ADA as now
amended by Congress.
The final regulatory impact analysis estimates the annual costs of
the rule to be in the range of $60 million to $183 million, and
estimates that the benefits will be significant. While those benefits
cannot be fully quantified and monetized at this time, the Commission
concludes that consistent with EO 13563, the benefits (quantitative and
qualitative) will justify the costs. Also consistent with EO 13563, we
have attempted to ``use the best available techniques to quantify
anticipated present and future benefits and costs as accurately as
possible.'' The Commission notes, however, that the rule and the
underlying statute create many important benefits that, in the words of
EO 13563, stem from ``values that are difficult or impossible to
quantify.'' Consistent with EO 13563, in addition to considering the
rule's quantitative effects, the Commission has considered the rule's
qualitative effects. Some of the benefits of the ADA Amendments Act
(ADAAA or Amendments Act) and this final rule are monetary in nature,
and likely involve increased productivity, but cannot be quantified at
this time.
Other benefits, consistent with the Act, involve values such as (in
the words of EO 13563) ``equity, human dignity, fairness, and
distributive impacts.'' In its statement of findings in the Act,
Congress emphasized that ``in enacting the ADA, Congress recognized
that physical and mental disabilities in no way diminish a person's
right to fully participate in all aspects of society, but that people
with physical or mental disabilities are frequently precluded from
doing so because of prejudice, antiquated attitudes, or the failure to
remove societal and institutional barriers.'' One of the stated
purposes of the ADA Amendments Act is ``to carry out the ADA's
objectives of providing `a clear and comprehensive national mandate for
the elimination of discrimination' and `clear, strong, consistent,
enforceable standards addressing discrimination' by reinstating a broad
scope of protection under the ADA.'' ADAAA Section 2(a)(1) and 2(b)(1).
This rule implements that purpose by establishing standards for
eliminating disability-based discrimination in the workplace. It also
promotes inclusion and fairness in the workplace; combats second-class
citizenship of individuals with disabilities; avoids humiliation and
stigma; and promotes human dignity by enabling qualified individuals to
participate in the workforce.
Introduction
I. Estimated Costs
A. Estimate of Increased Number of Individuals Whose Coverage Is
Clarified through the ADAAA and the Final Regulations
(1) Summary of Preliminary Analysis
(2) Comments on Preliminary Analysis
(3) Revised Analysis
(a) Number of Individuals Whose Coverage Is Clarified
(b) Number of Individuals Whose Coverage Is Clarified and Who
Are Participating in the Labor Force
[[Page 16987]]
B. Estimated Increase in Reasonable Accommodation Requests and
Costs Attributable to the ADAAA and the Final Regulations
(1) Summary of Preliminary Analysis
(2) Comments on Preliminary Analysis
(3) Revised Analysis
(a) Estimated Number of New Accommodation Requests
(b) Factors Bearing on Reasonable Accommodation Costs
(c) Calculation of Mean Costs of Accommodations Derived From
Studies
(d) Accommodation Cost Scenarios
C. Estimated Increase in Administrative and Legal Costs
Attributable to the ADAAA and the Final Regulations
(1) Summary of Preliminary Analysis
(2) Comments on Preliminary Analysis
(3) Revised Analysis of Administrative Costs
(4) Analysis of Legal Costs
II. Estimated Benefits
A. Benefits of Accommodations Attributable to the ADAAA and the
Final Regulations
(1) Summary of Preliminary Analysis
(2) Comments on Preliminary Analysis
(3) Conclusions Regarding Benefits of Accommodations
Attributable to the ADAAA and the Final Regulations
B. Other Benefits Attributable to the ADAAA and the Final
Regulations
(1) Efficiencies in Litigation
(2) Fuller Employment
(3) Non-discrimination and Other Intrinsic Benefits
Conclusion
Introduction
In enacting the ADA Amendments Act, Congress explicitly stated its
expectation that the EEOC would amend its ADA regulations to reflect
the changes made by the statute. These changes necessarily extend as
well to the Interpretive Guidance (also known as the Appendix) that was
published at the same time as the original ADA regulations and that
provides further explanation on how the regulations should be
interpreted.
The Amendments Act states that its purpose is ``to reinstate a
broad scope of protection'' by expanding the definition of the term
``disability.'' Congress found that persons with many types of
impairments--including epilepsy, diabetes, HIV infection, cancer,
multiple sclerosis, intellectual disabilities (formerly called mental
retardation), major depression, and bipolar disorder--had been unable
to bring ADA claims because they were found not to meet the ADA's
definition of ``disability.'' Yet, Congress thought that individuals
with these and other impairments should be covered and revised the ADA
accordingly. Congress explicitly rejected certain Supreme Court
interpretations of the term ``disability'' and a portion of the EEOC
regulations that it found had inappropriately narrowed the definition
of disability. These amended regulations are necessary to implement
fully the requirements of the ADA Amendments Act's broader definition
of ``disability.''
Our assessment of both the costs and benefits of this rule was
necessarily limited by the data that currently exists. Point estimates
are not possible at this time. For that reason, and consistent with OMB
Circular A-4, we have provided a range of estimates in this assessment.
The preliminary regulatory impact analysis (``preliminary
analysis'') set forth in the NPRM reviewed existing research and
attempted to estimate the costs and benefits of the proposed rule. More
specifically, the preliminary analysis attempted to estimate the costs
employers would incur as the result of providing accommodations to more
individuals with disabilities in light of the Amendments Act, the
prevalence of accommodation already in the workplace, the cost per
accommodation, the number of additional accommodations that the
Amendments Act would need to generate to reach $100 million in costs in
any given year, the administrative costs for firms with at least 150
employees, and the reported benefits of providing reasonable
accommodations.
The preliminary analysis concluded that the costs of the proposed
rule would very likely be below $100 million, but did not provide
estimates of aggregated monetary benefits. Because existing research
measuring the relevant costs and benefits is limited, the Commission's
NPRM solicited public comment on its data and analysis.
The Commission's final regulatory impact analysis is based on the
preliminary assessment but has changed significantly based on comments
received during the public comment period on the NPRM as well as the
inter-agency comment period on the final regulations under EO 12866.\1\
These changes are consistent with the public participation provisions
in EO 13563 and reflect the importance of having engaged and informed
public participation. The limitations of the preliminary analysis
approach are outlined below, and an alternative approach is provided to
illustrate the range of benefits and costs.
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\1\ The Commission specifically undertook to provide extensive
opportunities for public participation in this rulemaking process.
In addition to the more than 600 written comments received during
the 60-day public comment period on the NPRM, the EEOC and the U.S.
Department of Justice Civil Rights Division during that period also
held four ``Town Hall Listening Sessions'' in Oakland, California on
October 26, 2009, in Philadelphia, Pennsylvania on October 30, 2009,
in Chicago, Illinois on November 17, 2009, and in New Orleans,
Louisiana on November 20, 2009. For each of these sessions,
Commissioners offered to be present all day to receive in-person or
telephonic comments on any aspect of the NPRM from members of the
public on both a pre-registration and walk-in basis. More than 60
individuals and representatives of the business/employer community
and the disability advocacy community from across the country
offered comments at these four sessions, a number of whom
additionally submitted written comments.
---------------------------------------------------------------------------
These estimates are discussed seriatim in the following sections of
this analysis.
I. Estimated Costs
A. Estimate of Increased Number of Individuals Whose Coverage Is
Clarified by the ADAAA and the Final Regulations
For those employers that have 15 or more employees and are
therefore covered by the proposed regulations, the potential costs of
the rule stem from the likelihood that, due to Congress's mandate that
the definition of disability be applied in a less restrictive manner,
more individuals will qualify for coverage under the portion of the
definition of disability that entitles them to request and receive
reasonable accommodations.\2\ Thus, we first consider the number of
individuals whose coverage is clarified by the ADAAA and the final rule
as a result of the changes made to the definition of ``substantially
limits a major life activity.'' \3\ We then consider how many such
individuals are likely to be participating in the labor force.
---------------------------------------------------------------------------
\2\ Individuals who are covered under the first two prongs of
the definition of disability are entitled to reasonable
accommodations, as well as to challenge hiring, promotion, and
termination decisions and discriminatory terms and conditions of
employment. Individuals covered solely under the third prong of the
definition of disability are not entitled to reasonable
accommodations. As we noted in the preliminary regulatory impact
analysis, the primary costs are likely to derive from increased
numbers of accommodations being provided by employers--assuming an
accommodation is needed, an employee is qualified, and the
accommodation does not pose an undue hardship. No comments
challenged that assessment. Thus, while we discuss proposed
increases in litigation costs below (which apply to claims brought
by individuals covered under any prong of the definition), we focus
our attention in this section on those individuals whose coverage is
clarified under the first two prongs of the definition of
disability.
\3\ Prior to the ADAAA, individuals with impairments such as
cancer, diabetes, epilepsy and HIV infection were sometimes found to
be covered under the ADA, and sometimes not, depending on how well
they functioned with their impairments, taking into account
mitigating measures. Thus, it is not appropriate to say that all
such individuals are ``newly covered'' under the ADA. For that
reason, we refer to this group throughout this analysis as a group
whose ``coverage has been clarified'' under the ADAAA.
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[[Page 16988]]
(1) Summary of Preliminary Analysis
The preliminary regulatory impact analysis relied on a variety of
demographic surveys conducted by the U.S. government which are designed
to estimate the number of people with disabilities in the labor force.
The resulting estimates differ somewhat based on the survey design, the
sample size, the age range of the population under study, who is
actually being surveyed (the household or the individual), the mode of
survey administration, the definition of disability used, and the time-
frame used to define employment status.
In attempting to estimate the increased number of individuals whose
coverage was clarified by the ADAAA and who might need and request
accommodation,\4\ the Commission's preliminary impact analysis examined
data from the following major population-representative Federal surveys
that contain information about people with disabilities and their
employment status: the Current Population Survey (CPS), the American
Community Survey (ACS), the National Health Interview Survey (NHIS),
and the Survey of Income and Program Participation (SIPP). Noting the
limitations of this data as applied to estimating the number of
individuals affected by the amended ADA, we nevertheless estimated that
there were 8,229,000 people with disabilities who were working in 2007,
and that between 2.2 million and 3.5 million workers reported that they
had disabilities that caused difficulty in working.\5\
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\4\ The preliminary analysis focused on individuals whose
coverage would be clarified under the ADAAA and who might need and
request an accommodation. For purposes of clarity, our final
assessment focuses first on the number of individuals whose coverage
will be clarified under the ADAAA and who are participating in the
labor force. We then move to a separate analysis of how many of
those individuals might need and request accommodations.
\5\ From 2003-07, the ACS included the following question on
``Employment Disability'' asked of persons ages 15 or older:
``Because of a physical, mental, or emotional condition lasting six
months or more, does this person have any difficulty in doing any of
the following activities: (b) working at a job or business?'' See
``Frequently Asked Questions,'' Cornell University Disability
Statistics, Online Resource for U.S. Disability Statistics, http://www.ilr.cornell.edu/edi/disabilitystatisticsfaq.cfm.
---------------------------------------------------------------------------
Both public comments and comments received during the inter-agency
review process under EO 12866 highlighted a variety of limitations in
our analysis. Indeed, the alternative that we later present indicates
that the figure of 8.2 million people with disabilities used in the
preliminary analysis significantly underestimated the number of workers
with impairments whose coverage under the law will now be clarified.
The indicator of ``disability'' used by the ACS, CPS, and NIHS
depends on a series of six questions that address functionality,
including questions about whether an individual has any of the
following: a severe vision or hearing impairment; a condition that
substantially limits one or more basic physical activities such as
walking, climbing stairs, reaching, lifting, or carrying; a physical,
mental, or emotional condition lasting 6 months or more that results in
difficulty learning, remembering, or concentrating; or a severe
disability that results in difficulty dressing, bathing, getting around
inside the home, going outside the home alone to shop or visit a
doctor's office, or working at a job or business.
This survey definition clearly captures only a subset of the group
of people with disabilities who would be covered under the ADA as
amended. For example, among other things:
--With respect to both physical and mental impairments, the survey
definition does not account for the addition of the operation of major
bodily functions as major life activities under the newly amended law,
such as functions of the immune system, normal cell growth, and brain,
neurological, and endocrine functions. This makes it especially likely
that the survey data is under-inclusive as to individuals with
impairments such as HIV infection, epilepsy, cancer, diabetes, and
mental impairments whose coverage is now clarified under the ADA.
--Even with respect to major life activities other than major bodily
functions, the survey definition covers a narrower range of individuals
with mental impairments since it is limited to mental or emotional
conditions that result in difficulty learning, remembering,
concentrating, or a severe disability resulting in difficulty doing
specific self-care activities.
--The survey definition overall reflects an attempt to capture
individuals with impairments whose limitations are considered
``severe''-- a degree of limitation which is no longer required in
order for an impairment to be considered substantially limiting under
the ADA as amended.
--The survey definition expressly excludes many individuals whose
impairments last fewer than 6 months, even though such impairments may
substantially limit a major life activity under the ADA prior to and
after the ADA Amendments.
--The survey definition is limited to impairments that currently
substantially limit a major life activity, and therefore does not
capture individuals with a record of a substantially limiting
impairment who may still need accommodation arising from that past
history.
In the preliminary analysis, we used the number of employed
individuals who have functional disabilities (as indicated by the six-
question set described above) as a surrogate for the number of
individuals with any disability who are working. We then tried to
determine the subset of those employed individuals with disabilities
whose coverage would be newly clarified as a result of the Amendments
Act, acknowledging that some people whose coverage would be potentially
clarified by the Amendments Act were probably not included in this
baseline.
We declined to use the subset of workers with reported employment
related disabilities, because we assumed that some of these individuals
would have been covered even under the pre-ADAAA definition of
``disability.'' Instead, the preliminary analysis examined the CDC's
analysis of the Census/SIPP data on prevalence of certain medical
conditions in the population of non-institutionalized individuals ages
18-64. See ``Main cause of disability among civilian non-
institutionalized U.S. adults aged 18 years or older with self reported
disabilities, estimated affected population and percentages, by sex--
United States, 2005,'' http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5816a2.htm (last visited Mar. 1, 2010). We chose to focus on those
impairments in Sec. 1630.2(j)(5) of the NPRM (those impairments that
we believed would ``consistently'' meet the definition of a
substantially limiting impairment), since we considered individuals
with such impairments to be most likely to request accommodations as a
result of the regulations due to a greater degree of certainty that
they would be covered. We concluded that this data suggested that 13
percent of civilian non-institutionalized adults with disabilities have
the following conditions: Cancer (2.2 percent), cerebral palsy (0.5
percent), diabetes (4.5 percent), epilepsy (0.6 percent), AIDS or AIDS
related condition (0.2 percent), ``mental or emotional'' impairment
(4.9 percent).
We assumed in our preliminary analysis that these impairments would
occur with the same degree of frequency among employed adults who have
functional disabilities as they do among
[[Page 16989]]
the population of persons with disabilities generally, and so
multiplied 13% times 8,229,000 workers with reported disabilities. We
thus estimated that approximately 1,000,000 workers with disabilities
had impairments that were more likely to be covered as the result of
the ADAAA and the EEOC's regulations.
(2) Comments on Preliminary Analysis
The Commission received a number of public comments from employer
associations arguing that our figures underestimated the increase in
the number of individuals who would now be covered under the ADAAA, as
people with disabilities. One employer association specifically argued
that the Commission's preliminary estimate that 13 percent of the
workers with work-limitation disabilities would consistently meet the
definition of disability under NPRM Sec. 1630.2(j)(5) left out a
number of disabilities listed in that section such as autism, multiple
sclerosis, and muscular dystrophy. This comment cited Centers for
Disease Control (CDC) data that the prevalence rate for autism spectrum
disorder is between 2 and 6 per 1,000 individuals, or 89,000 to 267,000
civilian non-institutionalized adults, as well as National Multiple
Sclerosis Society data estimating that 400,000 Americans have multiple
sclerosis, and Muscular Dystrophy Association statistics that
approximately 250,000 Americans have muscular dystrophy. The commenter
argued that adding these estimates to the 5.8 million non-
institutionalized adults ages 18-64 who have cancer, cerebral palsy,
diabetes, epilepsy, AIDS or AIDS related condition, or a mental or
emotional impairment would increase the percentage of workers who would
consistently meet the definition of disability under proposed section
1630.2(j)(5) to 15.1 percent. The commenter also noted that data from
the Families and Work Institute estimates that 21 percent of workers
are currently receiving treatment for high blood pressure, 7 percent
have diabetes, and 4 percent are being treated for mental health
issues. Finally, this commenter pointed out that a number of
impairments similar to those listed in NPRM Sec. 1630.2(j)(5), but not
explicitly identified in that section, would presumably also meet the
expanded definition of disability. Based on these observations, the
commenter noted that the percentage of workers with covered
disabilities could be 20 to 40 percent.
In contrast, some advocates for people with disabilities urged the
Commission to delete any estimates at all of the numbers of persons who
may meet the definition of ``disability'' as amended by the ADA
Amendments Act or who may request reasonable accommodations. These
groups noted that the broad purposes of the ADA, as compared to the
more limited purposes of most existing data collections and the
different definitions of ``disability'' used in those studies, made
those estimates so uncertain, conjectural, and anecdotal as to be
unhelpful and potentially detrimental to the goals of the ADAAA.
In addition, these advocates disputed the Commission's willingness
in the preliminary analysis to allow that there may be an increase in
requests for accommodation as a result of the ADAAA or the regulations,
and therefore disagreed with the underlying premise of attempting to
estimate the number of individuals with disabilities generally or the
increase in the number of individuals whose coverage under the ADA
would now be clarified. Their argument proceeded as follows: Employers
and employees alike have generally been aware since title I of the ADA
took effect in 1992 that requested accommodations needed by individuals
with disabilities must be provided absent undue hardship, and that
notwithstanding court rulings to the contrary, most employers and
employees have continued to believe that disabilities include
impairments such as those examples set forth in Sec. 1630.2(j)(5) of
the NPRM, e.g., epilepsy, depression, post traumatic stress disorder,
multiple sclerosis, HIV infection, cerebral palsy, intellectual
disabilities, bipolar disorder, missing limbs, and cancer. Therefore,
these advocates argued, it is unlikely that individuals with such
impairments have been refraining from requesting accommodations up
until now, or that their requests for accommodation have been denied
because they did not meet the legal definition of disability. This was
the practical reality, even if improper denials by employers would have
been difficult to remedy in the courts, given the pre-Amendments Act
interpretation of the definition of disability.\6\
---------------------------------------------------------------------------
\6\ These groups also noted that some individuals with covered
disabilities will not seek work. Finally, they disputed the utility
of the attempt to estimate the number of affected workers on the
grounds the ADAAA simply restores the original interpretation of the
definition of ``disability,'' and there is no evidence that state or
local laws with equivalent or broader definitions of disability have
experienced a significant economic impact.
---------------------------------------------------------------------------
(3) Revised Analysis
(a) Number of Individuals Whose Coverage Is Clarified and Who Are
Participating in the Labor Force
The Commission agrees with the comments made by both employer
groups and advocates for people with disabilities that the referenced
survey data regarding the numbers of workers with disabilities or with
specific impairments--which, as noted in the preliminary analysis,
researchers collected for other purposes--has limited relevance to
determining the number of workers whose coverage has been clarified by
the ADAAA. This conclusion qualifies any use of that data in the
preliminary analysis, as well as in this final regulatory impact
analysis.
In light of these limitations, we believe the Commission's
preliminary analysis significantly underestimated the number of workers
with disabilities whose coverage is clarified as a result of the ADAAA
and the final regulations. First, we did not account for several
impairments actually listed in Sec. 1630.2(j)(3)(iii) of the final
regulations, such as autism, multiple sclerosis, and muscular
dystrophy. Second, as was pointed out during inter-agency review of the
final regulations prior to publication, because the CDC analysis of the
Census Data on the number of workers with self-reported disabilities
was not derived in the same way as the ACS data, it would be incorrect
to assume that CDC data on the prevalence of the impairments in Sec.
1630.2(j)(3)(iii) reflects the frequency of those impairments among the
8,229,000 non-institutionalized workers with disabilities aged 18-64
found by the ACS. Moreover, as discussed below, the figures in the CDC
analysis of the Census Data are obviously far lower than reported data
on the incidence of these impairments in the population overall.
Therefore, for purposes of this final analysis, informed by both
the public comments and comments received during the inter-agency
review process under EO 12866, we conclude that the figure of 8.2
million people with disabilities used in the preliminary analysis, and
the calculations made with it, significantly underestimated the number
of workers with impairments that will now be covered as having a
substantially limiting impairment or record thereof under the ADAAA and
the final regulations.
Our revised analysis proceeds as follows. In analyzing the
available data, we are mindful of the fact that the Amendments Act was
designed to make it easier to meet the definition of
[[Page 16990]]
disability under the ADA and to expand the universe of people
considered to have disabilities. Prior to the Amendments Act, the
Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),
used the ADA's finding that approximately 43 million Americans had
disabilities as part of its reason for concluding that the benefits of
mitigating measures (e.g., medication, corrective devices) an
individual used had to be taken into account when determining whether a
person had a substantially limiting impairment. The Amendments Act
rejected this restrictive definition of disability and explicitly
removed this finding from the law. It also provided that the
ameliorative effects of mitigating measures (except ordinary eyeglasses
or contact lenses) were not to be taken into account in determining
whether a person's impairment substantially limited a major life
activity.
Thus, based on the Amendments Act's rejection of Sutton alone--
apart from the many other changes it made to the definition of a
substantial limitation in a major life activity--we know that the
number of people now covered under the ADA as having a substantially
limiting impairment or a record thereof should be significantly more
than 43 million. (The Court surmised that the 43 million number was
derived from a National Council on Disability report, Toward
Independence (Feb. 1986), available at http://www.ncd.gov/newsroom/publications/1986/toward.htm, which in turn was based on Census Bureau
data and other studies that used ``functional limitation'' analyses of
whether individuals were limited in performing selected basic
activities.)
Under the ADA as amended, the definition of an impairment that
substantially limits a major life activity will obviously be broader
than captured by prior measures, since ``substantial'' no longer means
``severe'' or ``significantly restricted,'' major life activities now
include ``major bodily functions,'' the ameliorative effects of
mitigating measures (other than ordinary eyeglasses or contact lenses)
are disregarded, and conditions that are episodic or in remission are
substantially limiting if they would be when active. Based on the
available data, it is impossible to determine with precision how many
individuals have impairments that will meet the current definition of
substantially limiting a major life activity or a record thereof. We do
know, however, that, at a minimum, this group should easily be
concluded to include individuals with the conditions listed in Sec.
1630.2(j)(3)(iii) of the final regulations--including autism, cancer,
cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis,
muscular dystrophy, and a variety of mental impairments.
While it is true that, prior to the Amendments Act, many of these
individuals were assumed to be covered under the law by their
employers, the reality was that large numbers of individuals with these
conditions were considered by the courts not to have disabilities,
based on an individualized assessment of how well the individuals were
managing with their impairments, taking into account mitigating
measures. Thus, for purposes of this regulatory assessment, we consider
individuals with all of these impairments to be individuals whose
coverage has now been clarified by the Amendments Act.
By contrast, we are not counting individuals with certain
conditions also listed in Sec. 1630.2(j)(3)(iii) of the final
regulations--mobility impairments requiring use of a wheelchair,
blindness, deafness, and intellectual disabilities-- as individuals
whose coverage has now been clarified by the Amendments Act since,
notwithstanding some exceptions, courts consistently found such
individuals to be covered under the ADA even prior to the Amendments
Act.
Thus, we use as a starting point the data reported by government
agencies and various organizations on the number of individuals in the
United States with autism, cancer, cerebral palsy, diabetes, epilepsy,
HIV infection, multiple sclerosis, muscular dystrophy, and a variety of
mental impairments.\7\ Adding these admittedly disparate and
potentially overlapping numbers (and acknowledging that some of these
estimates include children and are not restricted by employment
status), we can assume a rough estimate of the number of individuals
with these impairments who would be found substantially limited in a
major life activity as a result of the Amendments Act, as follows:
---------------------------------------------------------------------------
\7\ We note that this approach was used by one of the comments
submitted by an employer association.
--Autism--Approximately 1.5 million individuals in the United States
are affected by autism.\8\
---------------------------------------------------------------------------
\8\ See ``What is Autism?'' http://www.autismspeaks.org/whatisit/index.php (last visited Mar. 1, 2011); see also Centers for
Disease Control, ''Prevalence of the Autism Spectrum Disorders
(ASDs) in Multiple Areas of the United States, 2000 and 2002,''
available at http://www.cdc.gov/ncbddd/autism/documents/AutismCommunityReport.pdf (various studies regarding prevalence in
children).
---------------------------------------------------------------------------
--Multiple Sclerosis--Approximately 400,000 Americans have multiple
sclerosis according to the National Multiple Sclerosis Society.\9\
---------------------------------------------------------------------------
\9\ See ``Who Gets MS?'' http://www.nationalmssociety.org/about-multiple-sclerosis/what-we-know-about-ms/who-gets-ms/index.aspx
(last visited Mar. 1, 2011).
---------------------------------------------------------------------------
--Muscular Dystrophy--Approximately 250,000 Americans have muscular
dystrophy according to the Muscular Dystrophy Association.\10\
---------------------------------------------------------------------------
\10\ See ``Answers to Frequently Asked Questions,'' http://www.mda.org/news/080804telethon_basic_info.html (last visited Mar.
1, 2011).
---------------------------------------------------------------------------
--Cancer--In 2007, approximately 11,714,000 individuals were living
with cancer in the United States.\11\
---------------------------------------------------------------------------
\11\ See ``Cancer Prevalence: How Many People Have Cancer?''
http://www.cancer.org/cancer/cancerbasics/cancer-prevalence (last
visited Mar. 1, 2011).
---------------------------------------------------------------------------
--Diabetes--An estimated 18.8 million adults in the United States have
diabetes according to the CDC.\12\
---------------------------------------------------------------------------
\12\ See ``2011 National Diabetes Fact Sheet'' (released Jan.
26, 2011), http://www.diabetes.org/diabetes-basics/diabetes-statistics/ (last visited Mar. 1, 2011).
---------------------------------------------------------------------------
--Epilepsy--Approximately 3 million Americans \13\ (or subtracting
approximately 326,000 schoolchildren under 15, about 2.6 million people
15 or over) have epilepsy, according to the Epilepsy Foundation
website, and an estimated 2 million people have epilepsy, according to
the CDC.
---------------------------------------------------------------------------
\13\ See ``Epilepsy and Seizure Statistics,'' http://www.epilepsyfoundation.org/about/statistics.cfm (last visited Mar.
1, 2011); CDC, Epilepsy ``Data and Statistics,'' http://www.cdc.gov/Epilepsy/.
---------------------------------------------------------------------------
--Cerebral Palsy--Between 1.5 and 2 million children and adults have
cerebral palsy in the United States according to the United Cerebral
Palsy Research and Educational Foundation.\14\
---------------------------------------------------------------------------
\14\ See ``Cerebral Palsy Fact Sheet,'' http://www.ucp.org/uploads/cp_fact_sheet.pdf (last visited Mar. 1, 2011).
---------------------------------------------------------------------------
--HIV Infection--The CDC estimates that more than 1.1 million Americans
are living with HIV infection.\15\
---------------------------------------------------------------------------
\15\ See ``HIV in the United States,'' http://www.cdc.gov/hiv/topics/surveillance/resources/factsheets/us_overview.htm (last
visited Mar. 1, 2011).
---------------------------------------------------------------------------
--Mental Disabilities--Approximately 21 million individuals (6% or 1 in
17 Americans) have a serious mental illness according to the National
Alliance on Mental Illness website (citing National Institute of Mental
Health reports).\16\
---------------------------------------------------------------------------
\16\ ``What is Mental Illness: Mental Illness Facts,'' http://www.nami.org/template.cfm?section=About_Mental_Illness (last
visited Mar. 1, 2011).
Thus, based on this data, the number of individuals with the
impairments cited in Sec. 1630.2(j)(3(iii) could be at least 60
million. In addition, we know that people with many other
[[Page 16991]]
impairments will virtually always be covered under the amended ADA
definition of an impairment that substantially limits a major life
activity or record thereof.
We recognize that the above figures on the prevalence of Sec.
1630.2(j)(3)(iii) impairments are over-inclusive as a measure of the
potential number of workforce participants with these impairments,
since in some instances they include people of all ages and those who
are not in the labor force. Therefore, we must also identify how many
of these individuals are currently participating in the labor force.
Again, we are faced with significant limitations in the data
available to us. The newest data released in January 2011 by the Bureau
of Labor Statistics (BLS) estimates that 20 percent of people with
disabilities age 16 and older participate in the labor force and, of
those, 13.6 percent are considered to be unemployed.\17\ But the BLS
uses a functional limitation analysis to determine who has a disability
which, as we have explained above, is significantly different from the
definition of disability under the ADA as amended. Hence, we must
assume this percentage is extremely under-inclusive. The BLS data
estimates that the labor force participation rate for all civilian non-
institutionalized people 16 and older (including people with and
without disabilities) is 64 percent. We can thus assume that somewhere
between 20 and 64 percent of individuals with impairments identified in
Sec. 1630.2(j)(3)(iii) will be participating in the labor force.
---------------------------------------------------------------------------
\17\ Participants in the labor force include individuals who
currently have a job or are actively looking for one. U.S.
Department of Labor, Office of Disability Employment Policy,
Disability Employment Statistics Q&A, http://www.dol.gov/odep/categories/research/bls.htm.
---------------------------------------------------------------------------
Using the 60 million figure, if we assume 20% of individuals with
impairments identified in Sec. 1630.2(j)(3)(iii) of the final
regulations are participating in the labor force, then, considering
those impairments alone, approximately 12 million individuals whose
coverage is now clarified under the ADA are in the labor force (20%
times 60 million). If we assume 64% of individuals with these
disabilities are in the labor force, then the number of labor force
participants whose coverage is clarified under the ADA is approximately
38.4 million.
B. Estimated Increase in Reasonable Accommodation Requests and Costs
Attributable to the ADAAA and the Final Regulations
(1) Summary of Preliminary Analysis
As noted above, our preliminary analysis had concluded there would
be an additional one million people with disabilities covered under the
ADA, as amended. The preliminary analysis then attempted to estimate
the subset of these million workers who would actually need reasonable
accommodations, relying on a study by Craig Zwerling et al., Workplace
Accommodations for People with Disabilities: National Health Interview
Survey Disability Supplement, 1994-1995, 45 J. Occupational & Envtl.
Med. 517 (2003). According to the Zwerling et. al study, 16% of
employees with impairments or functional limitations surveyed said they
need one of 17 listed accommodations. We assumed, therefore, using the
16% taken from the Zwerling study, that 16% of the one million workers
whom we identified would also need accommodations, and that the
resulting 160,000 requests would occur over a period of five years.
With regard to the potential costs of accommodations, the
preliminary analysis set forth a review of the data from a series of
studies providing a wide range of estimates of the mean and median
costs of reasonable accommodation. The means cited in the data ranged
from as low as $45 to as high as $1,434, based on a variety of studies
done by academic and private researchers as well as the Job
Accommodation Network (JAN). The $45 mean direct cost of accommodation
was reported in a study (Helen Schartz et al., Workplace
Accommodations: Evidence-Based Outcomes 27 Work 345 (2006)) examining
the costs and benefits of providing reasonable accommodations, using
data from an examination of costs at a major retailer from 1978 to 1997
(P. D. Blanck, The Economics of the Employment Provisions of the
Americans with Disabilities Act: Part I--Workplace Accommodations, 46
DePaul L. Rev. 877 (1997)). The $1,434 mean cost of accommodation cited
in the preliminary analysis was derived from data reviewed in JAN's
January 2009 issue of its periodically updated study entitled
``Workplace Accommodations: Low Cost, High Impact,'' which used 2008
data. The most recent JAN study, issued September 1, 2010, reported a
mean accommodation cost of $1,183, based on 2009 data.
Using estimates of both the mean and median cost of accommodations,
the preliminary analysis estimated that the ADA Amendments Act and
these regulations would result in increased costs of reasonable
accommodation of from $19,000,000 to $38,000,000 annually.
(2) Comments on Preliminary Analysis
The Commission received a number of public comments from employer
associations arguing that because we had underestimated the incremental
increase in the number of individuals with disabilities, we had also
necessarily underestimated the number of additional requests for
accommodation that could be attributable to the Amendments Act and the
final regulations. Thus, one commenter recommended using a figure of
20% rather than 13% to represent the number of individuals with just
those impairments identified in NPRM Sec. 1630.2(j)(5) and then
assumed that the percentage of those individuals who would request an
accommodation would be 49%. That commenter thus concluded that a total
of 576,000 individuals covered under Sec. 1630.2(j)(5) would request a
reasonable accommodation. This commenter also noted that even this
figure would likely be too low because workers may move from job to job
and renew accommodation requests, or a worker might need more than one
accommodation.
The Commission also received comments from employers on the
estimated costs of accommodations attributable to the Amendments Act
and the regulations, primarily contending:
--The specific data on accommodation costs cited by the Commission in
the preliminary analysis was too low (one employer association asserted
that the cost will be at least $305.7 million for the first year, with
administrative costs likely to exceed $101.9 million per year on a
recurring basis; a state government entity commented that the
Commission should take into account additional administrative costs
employers may bear in order to comply, but did not attempt to estimate
these additional costs);
--Each additional accommodation request will affect an employer's
ability to cope with the overall number of requests; and
--The undue hardship defense is insufficient to address the financial
concerns of small employers.
By contrast, disability rights groups asserted that even if the
Commission's estimate of 160,000 additional workers who would request
accommodations as a result of the ADA Amendments Act
[[Page 16992]]
provided an outer estimate of the number of affected workers, it was
too high of a number to gauge the impact of the Amendments Act, in part
because the Amendments Act affected those workers whom Congress had
always intended to be covered by the ADA and because many employers
were treating them as covered.
With regard to the costs of accommodations, a number of comments
from academics and disability and civil rights organizations concurred
with our preliminary conclusion that the cost would be below $100
million and that no economic impact analysis was required or feasible,
and/or argued that the Commission's preliminary analysis had overstated
the potential economic impact. Specifically, they argued that the
Commission's rough estimates of the number and cost of accommodation
requests were speculative and were unnecessary to conclude that the
Act's costs are less than $100 million, since available research
overwhelmingly demonstrates that accommodation costs are modest, and
because neither the Amendments Act nor the proposed regulations change
the basic structure of the original ADA. They also argued that the
Commission's method of interpreting certain reasonable accommodation
data resulted in overestimation of costs; that many accommodations for
specific types of impairments have no or very little cost; and that
over time, ongoing medical and technological advances can be reasonably
expected to reduce both existing and new accommodation costs associated
with the ADA or the Amendments Act.
Professor Peter Blanck of the Burton Blatt Institute at Syracuse
University, a co-author of the 2006 ``Workplace Accommodations:
Evidence-Based Outcomes'' study, filed public comments offering a
number of clarifications specifically regarding citation to his study's
data, and arguing that the Commission had overstated the cost of
accommodations, because the preliminary analysis used a ``mean'' (or
average, calculated by adding all values in a dataset and dividing by
the number of points in the dataset), rather than a ``median'' (the
middle point in a dataset).
Professor Blanck considered the median a better measure of the cost
of accommodations because so many accommodations have no cost. He
pointed out that based on his research, 49.4% of accommodations had
zero direct costs. For the 50.6% of accommodations with a cost greater
than zero, the median cost in the first calendar year was $600.
Professor Blanck further found that for all accommodations, including
those with a zero cost, the median cost of accommodations was found to
be $25.
Of key importance, no public comments contradicted the Commission's
observation in the preliminary analysis that there is a paucity of data
on the costs of providing reasonable accommodation, and that much of
the existing data is obtained either through limited sample surveys or
through surveys that collect limited information. While some employer
groups disputed the Commission's cost estimates, none cited any
research or studies on actual accommodation costs.
(3) Revised Analysis
Our revised analysis of potential costs for additional
accommodations begins with a revised estimate of the number of new
accommodation requests, based on the upward adjustment of the number of
people with disabilities whose coverage is clarified under the
Amendments Act. As we note above, that range is 12 million to 38.4
million people.
(a) Estimated Number of New Accommodation Requests
Estimating the increase in expected requests for reasonable
accommodations attributable to the Amendments Act and the final rule is
difficult because it requires assuming that some number of individuals
with disabilities will now perceive themselves as protected by the law
and hence ask for accommodation, but had not previously assumed they
were covered and therefore had not asked for accommodations. In
reality, individuals with disabilities such as epilepsy, diabetes,
cancer, and HIV infection may have considered themselves, and may have
been treated by their employers as, individuals who could ask for
accommodations such as flexible scheduling or time off. Moreover, in
many cases, such accommodations may have been requested and provided
without anyone in the process even considering such workplace changes
as being required reasonable accommodations under the ADA.
Recognizing that it is impossible to determine with precision the
number of individuals in the labor force whose coverage is now
clarified under the law and who are likely to request and require
reasonable accommodations as a result of that increased clarity, we
have tried to determine the number of such individuals by taking the
estimated number of labor force participants whose coverage has been
clarified and multiplying it by the percentage of employees who report
needing accommodations.
According to the Zwerling et al. study cited in our preliminary
analysis, 16% of employees with impairments or functional limitations
surveyed said they needed one of 17 listed accommodations. Workplace
Accommodations for People with Disabilities: National Health Interview
Survey Disability Supplement, 1994-1995, 45 J. Occupational & Envtl.
Med. 517 (2003)). This 16% figure may be an overestimate of the
percentage of those employees whose coverage has been clarified by the
Amendments Act who will actually need accommodations, since of the 17
accommodations listed in the study, a number of them would more likely
have been needed by individuals whose coverage was not questioned prior
to the Amendments Act. For example, these accommodations include
accessible restrooms, automatic doors, installation of a ramp or other
means of physical access, and the provision of sign language
interpreters or readers. These are types of accommodations that would
apply specifically to individuals who were clearly covered under the
ADA, even prior to the Amendments Act. Only 10.2% of the employees
surveyed asked for accommodations such as break times, reduced hours,
or job redesign, which are the more likely accommodations to be
requested by those individuals whose coverage has now been clarified.
Nevertheless, because the Zwerling study surveyed a limited range of
people with disabilities, we will use the full 16% figure.
Applying the 16% figure to represent the percentage of individuals
whose coverage has been clarified and who would need reasonable
accommodations, the resulting increase in reasonable accommodations
requested and required as a result of the Amendments Act could range
from approximately 2 million (assuming 12 million labor force
participants) to 6.1 million (assuming 38.4 million labor force
participants).
(b) Factors Bearing on Reasonable Accommodation Costs
After fully considering the preliminary analysis and the public
comments, and after further consideration of the issues, the Commission
is persuaded of the following facts concerning the costs of
accommodations:
--Of those reasonable accommodations requested and required, only a
subset will have any costs associated with them. The studies show that
about half of accommodations have zero or no cost, and had findings
regarding
[[Page 16993]]
the mean cost ranging from $45 and $1,183. But most, if not all, of
these studies have included accommodations for people who use
wheelchairs, who are deaf, or who are blind. These tend to be the most
expensive accommodations (e.g., physical access changes such as ramps,
automatic doors, or accessible bathrooms; sign language interpreters
and readers; Braille and/or computer technology for reading). Passage
of the Amendments Act and promulgation of these regulations do not
affect these individuals or render employers newly responsible for
providing such accommodations, since there was never any dispute, even
prior to enactment of the Amendments Act, that people with these kinds
of impairments met the definition of disability. Therefore, any
estimate of newly imposed costs of accommodations should generally
exclude these types of higher-cost accommodations.
--To the extent the calculation of any mean accommodation cost is
derived from data that includes accommodations that are purchased for a
one-time cost but will be used over a period of years once owned by the
employer (either for that employee's tenure or for future employees),
the annual cost is actually much lower than the one-time cost. For
example, physical renovations and accessibility measures, equipment,
furniture, or technology, among other accommodations, may be used over
a period of many years at no additional cost to the employer.
--A small percentage of people whose coverage has been clarified may
need some physical modifications to their workspace--e.g., the person
with mild cerebral palsy who might need voice recognition software for
difficulty with keyboarding, or the person whose multiple sclerosis
affects vision who needs a large computer screen.
--Most of the people who will benefit from the amended law and
regulations are people with conditions like epilepsy, diabetes, cancer,
HIV infection, and a range of mental disabilities. The types of
accommodation these individuals will most commonly need are changes in
schedule (arrival/departure times or break times), swapping of marginal
functions, the ability to telework, policy modifications (e.g.,
altering for an individual with a disability when or how a task is
performed, or making other types of exceptions to generally-applicable
workplace procedures), reassignment to a vacant position for which the
individual is qualified, time off for treatment or recuperation, or
other similar accommodations.
--Many of these accommodations will not require significant financial
outlays. Some accommodations, such as revising start and end times,
allowing employees to make up hours missed from work, and creating
compressed workweek schedules, may result in administrative or other
indirect costs. However, they may also result in cost savings through
increased retention, engagement, and productivity. Other
accommodations, such as providing special equipment needed to work from
home, will have costs, but might also result in cost savings (e.g.,
reduced transportation costs, environmental benefits, etc.).
--Time off, both intermittent and extended, may have attendant costs,
such as temporary replacement costs and potential lost productivity.
But these, too, may be offset by increased retention and decreased
training costs for new employees.
--With respect to those individuals whose coverage has been clarified
and who both request and need accommodation, employers will sometimes
provide whatever is requested based on existing employer policies and
procedures (e.g., use of accrued annual or sick leave or employer
unpaid leave policies, employer short- or long-term disability
benefits, employer flexible schedule options guaranteed by a collective
bargaining agreement, voluntary transfer programs, or ``early return to
work'' programs), or under another statute (e.g., the Family and
Medical Leave Act or workers' compensation laws).
(c) Calculation of Mean Costs of Accommodations Derived From Studies
We disagree with Professor Blanck's observation that the median
cost is the appropriate value for this analysis because this analysis
seeks to estimate the total cost of new accommodations across the
entire economy resulting from the Amendments Act and final rule. Using
the median value in this case would not capture the total cost to the
nation's economy.
For that reason, we will rely on the range of mean costs of
accommodations derived from various studies and will attempt to make a
reasonable estimation of the likely mean cost of accommodation for
those employees whose coverage has been clarified as a result of the
Amendments Act. In so doing, we again recognize that references to this
data must be qualified by (1) the fact that high cost outlier
accommodations are not ones likely to be requested by those whose
coverage has been clarified by the Amendments Act and the final rule,
and (2) the fact that reasonable accommodations are not needed,
requested by, or provided for all individuals with disabilities.
The Job Accommodation Network (JAN) conducts an ongoing evaluation
of employers that includes accommodation costs, using a questionnaire
to collect data from employers who have consulted JAN for advice on
providing reasonable accommodation. As noted above, the most recent JAN
study (Workplace Accommodations: Low Cost, High Impact (JAN 2009 Data
Analysis) (Sept. 1, 2010)) found that the median cost of reasonable
accommodations that had more than a zero cost reported by JAN clients
was $600, and the mean cost was $1,183.\18\ JAN's cumulative data from
2004-2009 shows that employers in their ongoing study report that a
high percentage (56%) of accommodations cost nothing to provide.
---------------------------------------------------------------------------
\18\ Information provided to the EEOC by Beth Loy, Ph.D., Job
Accommodation Network.
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According to JAN,\19\ its calculation of the $1,183 mean cost of
accommodation was derived from a survey of 424 employers. Two of those
employers reported outlying costs of $100,000 each, in both cases for
the design and purchase of information system databases for proprietary
information that would be accessible to employees with vision
impairments. Such employees would have likely been covered by the ADA
prior to the Amendments Act, and the type of higher-cost technological
accommodation at issue is not the type of accommodation that will
likely be needed by most of those whose coverage has been clarified by
virtue of the Amendments Act and final regulations. Moreover, in each
case, the database was being developed for business reasons, and not
specifically as an accommodation.\20\
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\19\ Id.
\20\ Id. The survey data received by JAN did not indicate
whether the $100,000 reported cost was the total cost of the
database or the added cost of accessibility. Significantly, one of
these employers is a federal agency that was required to purchase an
accessible database under section 508 of the Rehabilitation Act of
1973, as amended, so would have had to do so anyway. Therefore, it
is not clear that it would be appropriate to consider this a cost of
accommodating a single employee under section 501 of the
Rehabilitation Act, as amended. The other employer was a federal
contractor, and may therefore have had obligations under its
contract and/or section 503 of the Rehabilitation Act, as amended,
to include accessible features. Id.
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According to JAN, if these two outlier accommodations are deleted
from the
[[Page 16994]]
data set, the mean cost of accommodation based on the remaining 422
reported accommodations in the survey drops to $715.\21\ Even this
figure may overestimate the mean cost of accommodations needed for
those whose coverage has been clarified by the Amendments Act, most of
which we believe will have less significant costs. Nonetheless, we will
use $715 as a starting point for calculating the annual mean cost of
accommodations attributable to the changes in the definition of a
substantially limiting impairment.
---------------------------------------------------------------------------
\21\ Id.
---------------------------------------------------------------------------
The mean cost of $715 represents the average one-time cost of
providing a reasonable accommodation. However, JAN reports that many of
these accommodations reported in the study involved ones that are then
used by the employee (or additional employees) on an ongoing basis, in
many cases presumably for a period of years. These included items such
as software, chairs, desks, stools, headsets, keyboards, computer mice,
sound absorption panels, lifting devices, and carts.\22\ Given the
nature of these items, their useful life, and ever-advancing
technology, we assume for purposes of this analysis a useful life of
five years for these items. If those accommodations that can be used on
an ongoing basis are used for five years, this would reduce the mean
annual cost to one-fifth of $715 (or $143, which we will round to $150
for purposes of this analysis) with respect to those accommodations. In
addition, the mean of $715 includes one-time costs of more expensive
accommodations such as equipment, technology, and physical workplace
accessibility for individuals who were already covered, whereas we
believe the cost of the majority of accommodations associated with
those whose coverage is clarified by the Amendments Act will be lower.
Therefore, any estimate of the mean cost of accommodations overall may
exaggerate the cost of accommodations for such individuals. Thus, for
purposes of considering the annual impact pursuant to EO 12866, we
believe it is appropriate to use the estimated lower mean of $150.
---------------------------------------------------------------------------
\22\ Id.
---------------------------------------------------------------------------
(d) Accommodation Cost Scenarios
Using our estimates above regarding the possible range of the
number of individuals whose coverage is clarified under the definition
of a substantially limiting impairment or record thereof and who are
likely to request and require accommodation, we can project the
following estimates of the likely incremental cost of providing
reasonable accommodation attributable to the Amendments Act and the
final rule, using a $150 mean annual cost of accommodation. Since we
would not expect all of these new accommodation requests to be made in
a single year, we will assume they will be made over a period of five
years, with estimated costs as follows, using the above-discussed
estimate of the incremental increase in reasonable accommodations
requested and required as a result of the Amendments as ranging from 2
million to 6.1 million:
400,000 new accommodations annually (2 million over 5 years) x $150 =
$60 million annually
1.2 million new accommodations annually (6.1 million over 5 years) x
$150 = $183 million annually
Thus, the lower-bound estimated cost of the incremental increase in
accommodations attributable to the Amendments Act and the final
regulations would be $60 million annually, and the higher-bound
estimated cost would be $183 million. The Commission recognizes that
the range of cost estimates is quite large. However, given the lack of
available data and the limitations in existing data, the resultant high
level of uncertainty about the number of individuals whose coverage is
clarified under the Amendments Act, the uncertainty about the number of
such individuals who would be newly asking for accommodations, and the
uncertainty about the actual mean cost of the accommodations that might
be requested by these individuals, we are not able to provide more
precise estimates of the costs of new accommodations attributable to
the ADA Amendments Act and the final rule.
C. Estimated Increase in Administrative and Legal Costs Attributable to
the ADAAA and the Final Regulations
(1) Summary of Preliminary Analysis
In the preliminary analysis, the Commission posited that
administrative costs of complying with the ADA Amendments Act might be
estimated at $681 in a human resource manager's time,\23\ plus the
fees, if any, charged for any training course attended.
---------------------------------------------------------------------------
\23\ Occupational Outlook Handbook, 2008-09 Edition, http://stats.bls.gov/OCO/OCOS021.htm (downloaded September 2, 2009).
---------------------------------------------------------------------------
With respect to training costs, we noted that the EEOC provides a
large number of free outreach presentations for employers, human
resource managers, and their counsel, as well as fee-based training
sessions offered at approximately $350. Therefore, the preliminary
analysis offered a rough estimate of these administrative costs, even
if fee-based training were sought, of $1,031. The preliminary analysis
assumed that these figures will underestimate costs at large firms but
will overestimate costs at small firms and at firms that do not have to
alter their policies. This would have resulted in a one time cost of
approximately $70 million, although the Commission was unable to
identify empirical research to support these very rough estimates. This
figure assumed firms with fewer than 150 employees would incur no
administrative costs from this rule. The preliminary analysis further
assumed that smaller entities are less likely to have detailed
reasonable accommodation procedures containing information relating to
the definition of disability that must be revised or deleted. We
posited in our preliminary analysis that larger firms, such as the
18,000 firms with more than 500 employees, would be more likely to have
formal procedures that may need to be revised.\24\
---------------------------------------------------------------------------
\24\ http://www.sba.gov/advo/research/us_06ss.pdf (downloaded
Sept. 2, 2009).
---------------------------------------------------------------------------
The preliminary analysis also found that while there may be
additional costs associated with processing and adjudicating additional
requests for accommodation, these costs may be offset in part by the
fact that application of the revised definition of ``disability'' will
decrease the time spent processing accommodation requests generally.
There were no findings or assumptions regarding increased or decreased
litigation costs in the preliminary analysis.
(2) Comments on Preliminary Analysis
Various employer groups commented that the definitional changes
will cause confusion and litigation, with associated costs, and that
the Commission's preliminary estimate of training and related costs was
not based on sufficient research. Specifically, they commented that the
Commission had under-estimated the costs that have been or will be
incurred by employers to update internal policies and procedures to
reflect the broader definition of disability and to train personnel to
ensure appropriate compliance with the ADAAA and the final regulations,
and that the Commission should have taken into account not just
salaries but also benefits paid to such individuals to represent the
cost of time spent on such training. They also asserted that there
[[Page 16995]]
would be recurring costs of one-third of first year costs (which they
estimated would be more than $305 million for all employers).
By contrast, other commenters asserted that the Commission's
preliminary analysis overestimated administrative costs because it
failed to account for administrative benefits. They argued that costs
associated with needed updates to employer policies and procedures will
also have the benefit of simplifying and streamlining those policies
and procedures and the coverage determination part of the interactive
process.
(3) Revised Analysis of Administrative Costs
The Commission concludes that it inappropriately assessed the
additional training costs that would be incurred by employers with 150
or more employees. Employers of this size are likely to receive
training on both the ADAAA and the final regulations as part of fee-
based or free periodic update training on EEO topics that they
otherwise regularly attend. Our preliminary analysis did not account
for this fact, but rather assumed that most or all such employers would
attend a training on the regulations, at a cost of $350.00, that they
would not otherwise have attended.
Even if some larger employers decide to attend an EEO training in a
particular year because of the issuance of the final regulations (when
they otherwise would not have attended such a training), information
about the final regulations is likely to account for only a fraction of
the training (typically the EEOC's one- and two-day training sessions
involve multiple topics). Therefore, only a fraction of the $350.00 we
assumed an employer would spend on training can be said to be a cost
resulting from the ADAAA or the final regulations.
The Commission also concludes that it should have accounted for
administrative costs borne by employers with 15 to 149 employees. These
costs are limited, however, by the fact that such businesses generally
tend to lack formal reasonable accommodation policies and usually avail
themselves of free resources (e.g., guidance and technical assistance
documents on the EEOC's Web site) in response to particular issues that
arise, rather than receiving formal training on a regular basis.
Additionally, smaller employers are called upon to process far fewer
reasonable accommodation requests and may more easily be able to
establish undue hardship, even where an accommodation is requested by
someone whose coverage has been clarified under the ADAAA.
We also note that emphasizing the anticipated ``difference'' in
compliance costs between smaller and larger entities may overlook some
specific benefits incurred by smaller entities. For example, the EEOC
makes available more free outreach and training materials to employers
than it does paid trainings. Moreover, as noted above, smaller entities
are less likely to have detailed reasonable accommodation procedures
containing information relating to the definition of disability that
must be revised or deleted. The EEOC expects to issue new or revised
materials for small businesses as part of revisions made to all of our
ADA publications, which include dozens of enforcement guidances and
technical assistance documents, some of which are specifically geared
toward small business (e.g., ``The ADA: A Primer for Small Business,''
http://www.eeoc.gov/ada/adahandbook.html).
Notwithstanding the one-time costs to some employers associated
with making and implementing those revisions to their internal
procedures, the Commission notes that there will be significant time
savings that will be achieved on an ongoing basis once employers begin
utilizing their newly simplified procedures. Additionally, after
initial revision, subsequent updates will not be needed more frequently
than they were prior to the ADAAA and final regulations, and there is
no reason to anticipate recurring costs of any significance.
(4) Analysis of Legal Costs
It is difficult to predict either the increase or decrease in legal
costs as a result of the Amendments Act and the final rule.
We anticipate that the legal fees and litigation costs regarding
whether an individual is a person with a disability within the meaning
of the ADA will significantly decrease in light of the ADAAA and its
mandate that coverage be construed broadly. However, in those cases
where courts would previously have declined to reach the merits of ADA
claims based on a determination that a plaintiff did not have a
disability, legal fees and litigation costs regarding the merits of the
case--e.g., whether an individual was subject to discrimination on the
basis of his or her disability, whether an individual with a disability
is ``otherwise qualified,'' whether an accommodation constitutes an
``undue hardship,'' etc.--might increase as a result of more cases
proceeding to the merits.
In addition, we anticipate that in light of the ADAAA, including
the expanded ``regarded as'' definition of disability contained in the
ADAAA, there will be an increase in the number of EEOC charges and
lawsuits filed. In particular, we anticipate that more individuals with
disabilities might file charges with the Commission. Moreover, we
anticipate that plaintiffs' lawyers, who previously might not have
filed an ADA lawsuit because they believed that an employee would not
be covered under the Supreme Court's cramped reading of the term
``disability,'' will now be more inclined to file lawsuits in cases
where the lawyers believe that discrimination on the basis of
disability--broadly defined--has occurred. As a result, we believe that
there may be additional legal fees and litigation costs associated with
bringing and defending these claims, but we have no basis on which to
estimate what those costs might be.
There will be costs to the Commission primarily for increased
charge workload. The Congressional Budget Office (CBO) estimated these
costs based on H.R. 3195, a prior version of the legislation that
became the ADAAA. The CBO found that the bill would increase this
workload by no more than 10 percent in most years, or roughly 2,000
charges annually. Based on the EEOC staffing levels needed to handle
the agency's current caseload, CBO expected that implementing H.R. 3195
would require 50 to 60 additional employees. CBO estimated that the
costs to hire those new employees would reach $5 million by fiscal year
2010, subject to appropriation of the necessary amounts. (H.R. 3195,
ADA Amendments Act of 2008, Congressional Budget Office, June 23, 2008,
at 2.) Nevertheless, we note that although charge data indicate an
increase in ADA charges over the period of time since the Amendments
Act became effective, this increase may be attributable to factors
unrelated to the change in the ADA definition of disability. For
example, government research has found a higher incidence of
termination of individuals with disabilities than those without
disabilities during economic downturns. Kaye, H. Steven, ``The Impact
of the 2007-09 Recession on Workers with Disabilities,'' Monthly Labor
Review Online (U.S. Dept. of Labor Bureau of Labor Statistics, Oct.
2010, Vol. 133, No. 10), http://www.bls.gov/opub/mlr/2010/10/art2exc.htm (last visited Mar. 1, 2010). We also note that ADA charges
were steadily rising over a period of years even prior to enactment of
the ADA Amendments Act. To the extent that factors other than the
Amendments
[[Page 16996]]
Act explain or partially explain the increase in ADA charges since the
Act took effect, the increase in charges would not be attributable to
the Amendments Act or the final regulations.
In sum, while there might be a potential increase in legal fees
attributable to the ADAAA or the final regulations, we are unable to
attach any dollar figure to what that increase might be.
II. Estimated Benefits Attributable to the ADAAA and the Final
Regulations
A. Benefits of Accommodations Attributable to the ADAAA and the Final
Regulations
(1) Summary of Preliminary Analysis
While the preliminary impact analysis made reference to various
benefits of the rule in the discussion of assumptions and its review of
various projected costs, it did not separately itemize, review, or
quantify these benefits.
(2) Comments on Preliminary Analysis
Commenters said that the EEOC did not adequately account for the
benefits of reasonable accommodation. In particular, Professor Peter
Blanck submitted seven of his studies and argued that ``research shows
accommodations yield measurable benefits with economic value that
should be deducted from the cited costs to yield a net value.'' \25\
---------------------------------------------------------------------------
\25\ Blanck, P.D. (1994), Communicating the Americans with
Disabilities Act: Transcending Compliance--A case report on Sears
Roebuck & Co., The Annenberg Washington Program. (also in J. Burns
(Ed.), Driving Down Health Care Costs, at 209-241, New York, Panel
Publishers; Blanck, P.D. (1996); Communicating the Americans with
Disabilities Act: Transcending Compliance--1996: Follow-up report on
Sears, Roebuck & Co. Washington, D.C.: The Annenberg Washington
Program. (also published as: Blanck, P.D. (1996), Transcending Title
I of the Americans with Disabilities Act: A Case Report on Sears,
Roebuck & Co., Mental & Physical Disability Law Reporter, 20(2),
278-86) (mean cost was $45.20 on 71 accommodations made at Sears
between 1993-1995)); Blanck, P.D. & Steele, P. (1998), The Emerging
Role of the Staffing Industry in the Employment of Persons with
Disabilities--A Case Report on Manpower Inc. Iowa City, IA: Iowa CEO
and Law, Health Policy and Disability Center (data from 10 no-cost
case studies of accommodation by Manpower); Hendricks, D.J.,
Batiste, L., Hirsh, A., Dowler, D. Schartz, H., & Blanck, P. (Fall
2005), Cost and Effectiveness of Accommodations in the Workplace:
Preliminary Results of a Nationwide Study. Disability Studies
Quarterly, Part I, 25(4); Schartz, H., Schartz, K., Hendricks, D.J.,
& Blanck, P. (2006), Workplace Accommodations: Empirical Study of
Current Employees, Mississippi Law Journal, 75, 917-43 (for those
employers providing monetary estimates of benefits of accommodation,
81.3% reported benefits that offset the costs; 61.3% reported
benefits outweighing the cost, 20% reported benefits that equaled
the costs, and the remaining 18.7% reported costs exceeding
benefits); Schartz, H., Hendricks, D.J., & Blanck, P. (2006),
Workplace Accommodations: Evidence-Based Outcomes, Work, 27, 345-354
(addressing ``disability-related direct cost,'' the amount of direct
cost that is more than the employer would have paid for an employee
in same position without a disability); Schur, L., Kruse, D. Blasi,
J, & Blanck, P. (2009), Is Disability Disabling In All Workplaces?:
Disability, Workplace Disparities, and Corporate Culture, Industrial
Relations, 48(3), 381-410, July (finding disability is linked to
lower average pay, job security, training, and participation in
decisions, and to more negative attitudes toward the job and
company, but finding no disability ``attitude gaps'' in workplaces
rated highly by all employees for fairness and responsiveness).
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Professor Blanck states that ``research shows employees who receive
accommodations are more productive and valued members of their
organizations.'' He asserts that the contributions of accommodated
employees with disabilities show measurable economic value for
organizations, and that the analysis of economic impact must therefore
take into account both direct benefits and indirect benefits as a
potential offset to any potential accommodation costs reviewed in the
preliminary analysis or cited by the employer groups. Examples of
direct benefits reported by employers in these research studies include
the ability to retain, hire, and promote qualified personnel; increased
employee attendance (productivity); avoidance of costs associated with
underperformance, injury, and turnover; benefits from savings in
workers' compensation and related insurance; and increased diversity.
The authors also note a number of indirect benefits: Improved
interactions with co-workers; increased company morale, productivity,
and profitability; improved interactions with customers; increased
workplace safety; better overall company attendance; and increased
customer base.
Professor Blanck's statement is that based on the studies he has
reviewed and submitted, the quantified net benefits of providing
accommodations are a significant offset to any cost incurred and,
indeed, result in a net value. For example, he summarized the specific
accommodation benefit data found in the 2006 ``Workplace
Accommodations: Evidence-Based Outcomes'' study, as follows:
--Monetary estimates of direct benefits were provided by 95 respondents
and are a median of $1,000 total when zero benefit estimates are
included. When zero benefit estimates are excluded, the median benefit
is $5,500 (based on 62 respondents). Some respondents were unable to
provide exact estimates, but they could provide estimates within ranges
(of 75 respondents, 66.4% reported direct benefits greater than $1,000,
16.1% reported direct benefits between $500 and $1,000, 10.2% reported
direct benefits between $100 and $500, and the remaining 7.3% reported
direct benefits less than $100).
--Respondents were asked to estimate the value of indirect benefits
(e.g., improved interactions at work, improved morale, and increased
company productivity, safety, attendance, and profitability, etc.). Out
of 77 respondents who were able to do so, 57.1% reported no indirect
benefits, but 33 respondents did report indirect benefits greater than
zero, at a median value of $1,000. An additional 58 respondents were
able to estimate the value of indirect benefits categorically in
ranges. When combined with the 33 who reported exact estimates, 48.4%
reported indirect benefits greater than $1,000, 18.7% reported a value
between $500 and $1,000, 19.8% reported a value between $100 and $500,
and the remaining 13.2% reported a value less than $100.
--This study reports conservative estimates of the Calendar Year Net
Benefit by obtaining the difference between the First Calendar Year
Direct Cost and the Direct Benefit estimates. This comparison was made
for 87 respondents; the mean benefit was $11,335 and the median was
$1,000. For 59.8% the direct benefits associated with providing the
accommodation more than offset the direct costs, and for 21.8% benefits
and costs equaled each other (the remaining 18.4% reported costs that
were greater than benefits).
(3) Conclusions Regarding Benefits of Accommodations Attributable to
the ADAAA and the Final Regulations
We agree with the commenters who noted the existence of surveys
documenting both tangible and intangible benefits through the provision
of reasonable accommodations. For example, in its most recent survey of
employers, the Job Accommodation Network found that the following
percentage of respondents reported the following benefits from
accommodations they had provided to employees with disabilities:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Direct benefits:
Company retained a valued employee....................... 89
Increased the employee's productivity.................... 71
[[Page 16997]]
Eliminated costs associated with training a new employee. 60
Increased the employee's attendance...................... 52
Increased diversity of the company....................... 43
Saved workers' compensation or other insurance costs..... 39
Company hired a qualified person with a disability....... 14
Company promoted an employee............................. 11
Indirect benefits:
Improved interactions with co-workers.................... 68
Increased overall company morale......................... 62
Increased overall company productivity................... 59
Improved interactions with customers..................... 47
Increased workplace safety............................... 44
Increased overall company attendance..................... 38
Increased profitability.................................. 32
Increased customer base.................................. 18
------------------------------------------------------------------------
Job Accommodation Network (Original 2005, Updated 2007, Updated
2009, Updated 2010). Workplace Accommodations: Low Cost, High Impact,
http://AskJAN.org/media/LowCostHighImpact.doc (last visited Mar. 1,
2011).
The JAN study did not attempt to attach numerical figures to the
direct benefits noted in the survey. However, taking one of those
benefits--increased retention of workers--the Commission notes that
employers should experience cost savings by retaining rather than
replacing a worker. According to data from the Society for Human
Resource Management (SHRM), the average cost-per-hire for all
industries in 2009 was $1,978. Society for Human Resource Management,
SHRM 2010 Customized Human Capital Benchmarking Report (All Industries
Survey) at 13 (2010). Such costs increase for knowledge based
industries, such as high-tech where the cost-per-hire was $3,045. Id.;
Society for Human Resource Management, SHRM 2010 Customized Human
Capital Benchmarking Report (High Tech Industries Survey) at 13 (2010).
In addition, the time-to-fill for positions in all industries was an
average of 27 days, but time to fill for high-tech positions increased
to an average of 35 days. Id.; All Industries Survey at 13.
In addition, although limited, the existing data shows that
providing flexible work arrangements such as flexible scheduling and
telecommuting reduces absenteeism, lowers turnover, improves the health
of workers, and increases productivity. See Council of Economic
Advisors, Work-Life Balance and the Economics of Workplace Flexibility
(March 2010) (available at http://www.whitehouse.gov/blog/2010/03/31/economics-workplace-flexibility).
The Commission does not feel there is sufficient data to state
unequivocally, as Professor Blank does, that there is always a net
value to providing accommodations. However, it is apparent from surveys
conducted of both employers and employees that there are significant
direct and indirect benefits to providing accommodations that may
potentially be commensurate with the costs.
The Commission also concludes that there are potential additional
benefits regarding the provision of accommodations made by the ADAAA.
Specifically:
--The changes made by the Amendments Act and the clarity regarding
coverage provided by the Act and the final regulations should make the
reasonable accommodation process simpler for employers. For example, to
the extent employers may have spent time before reviewing medical
records to determine whether a particular individual's diabetes or
epilepsy satisfied the legal definition of a substantially limiting
impairment, there may be a cost savings in terms of reduced time spent
by front-line supervisors, managers, human resources staff, and even
employees who request reasonable accommodation.
--The Amendments Act reverses at least three courts of appeals
decisions that previously permitted individuals who were merely
``regarded as'' individuals with disabilities to be potentially
entitled to reasonable accommodation. The Amendments Act and the
regulations clearly provide that individuals covered only under the
``regarded as'' prong of the definition of disability will not be
entitled to reasonable accommodation. This change benefits employers by
both clarifying and limiting who is entitled to reasonable
accommodations under the ADA.
B. Other Benefits Attributable to the ADAAA and the Final Regulations
Apart from specific benefits regarding the provision of
accommodations, the Commission notes that a number of monetary and non-
monetary benefits may result from the ADAAA and the final regulations,
including but not limited to specifically the following:
(1) Efficiencies in Litigation
--The Amendments Act and final regulations will make it clearer to
employers and employees what their rights and responsibilities are
under the statute, thus decreasing the need for litigation regarding
the definition of disability.
--To the extent that litigation remains unavoidable in certain
circumstances, the Amendments Act and the final regulations reduce the
need for costly experts to address ``disability'' and streamline the
issues requiring judicial attention.
(2) Fuller Employment
--Fuller employment of individuals with disabilities will provide
savings to the federal government and to employers by potentially
moving individuals with disabilities into the workforce who otherwise
are or would be collecting Social Security Disability Insurance (SSDI)
from the government, or collecting short- or long-term disability
payments through employer-sponsored insurance plans.
--Fuller employment of individuals with disabilities will stimulate the
economy to the extent those individuals will have greater disposable
income and enhance the number of taxpayers and resulting government
revenue.
The Commission has not undertaken to quantify these benefits in
monetary terms. However, we assume for purposes of our analysis that
the sum total of these benefits will be significant.
(3) Non-discrimination and Other Intrinsic Benefits
The Commission also concludes that a wide range of qualitative,
dignitary, and related intrinsic benefits must be considered. These
benefits include the values identified in EO 13563, such as equity,
human dignity, and fairness. Specifically, the qualitative benefits
attributable to the ADA Amendments Act and the final rule include but
are not limited to the following:
--Provision of reasonable accommodation to workers who would otherwise
have been denied it benefits workers and potential workers with
disabilities by diminishing discrimination against qualified
individuals and by enabling them to reach their full potential. This
protection against discrimination promotes human dignity and equity by
enabling qualified workers to participate in the workforce.
--Provision of reasonable accommodation to workers who would otherwise
have been denied it
[[Page 16998]]
reduces stigma, exclusion, and humiliation, and promotes self-respect.
--Interpreting and applying the ADA as amended will further integrate
and promote contact with individuals with disabilities, yielding third-
party benefits that include both (1) diminishing stereotypes often held
by individuals without disabilities and (2) promoting design,
availability, and awareness of accommodations that can have general
usage benefits and also attitudinal benefits. See Elizabeth Emens,
Accommodating Integration, 156 U. Pa. L. Rev. 839, 850-59 (2008)
(explaining a wide range of potential third-party benefits that may
arise from workplace accommodations).
--Provision of reasonable accommodation to workers who would otherwise
have been denied it benefits both employers and coworkers in ways that
may not be subject to monetary quantification, including increasing
diversity, understanding, and fairness in the workplace.
--Provision of reasonable accommodation to workers who would otherwise
have been denied it benefits workers in general and society at large by
creating less discriminatory work environments.
Conclusion
In the foregoing final regulatory impact analysis, the Commission
concludes that the approximate costs of reasonable accommodations
attributable to the ADA Amendments Act and these regulations will range
greatly and in some instances would exceed $100 million annually,
depending on assumptions made about the number of individuals in the
labor force whose coverage has been clarified under the ADAAA and the
number of such individuals who will receive reasonable accommodation.
We estimate that the lower bound annual incremental cost of
accommodations would be approximately $60 million, assuming that 16% of
12 million individuals whose coverage has been clarified request
reasonable accommodations over five years at a mean cost of $150. We
also estimate that the upper bound annual incremental cost of
accommodations would be approximately $183 million, assuming that 16%
of 38.4 million individuals whose coverage has been clarified request
reasonable accommodations over five years at a mean cost of $150. We do
not believe that administrative costs will add significantly to the
annual costs resulting from the final regulations, and we believe it is
not possible to accurately estimate any decrease or increase in legal
costs.
The Commission further concludes that the Amendments Act and the
final regulations will have extensive quantitative and qualitative
benefits for employers, government entities, and individuals with and
without disabilities. Regardless of the number of accommodations
provided to additional applicants or employees as a result of the
Amendments Act and these regulations, the Commission believes that the
resulting benefits will be significant and could be in excess of $100
million annually. Therefore, the rule will have a significant economic
impact within the meaning of EO 12866. Consistent with Executive Order
13563, the Commission concludes that the benefits (quantitative and
qualitative) of the rule justify the costs.
Unfunded Mandates Reform Act
The Commission notes that by its terms the Unfunded Mandates Reform
Act does not apply to legislative or regulatory provisions that
establish or enforce any ``statutory rights that prohibit
discrimination on the basis of race, color, religion, sex, national
origin, age, handicap, or disability.'' 2 U.S.C. 658a. Accordingly, it
does not apply to this rulemaking.
Regulatory Flexibility Act
Title I of the ADA applies to all employers with 15 or more
employees, approximately 822,000 of which are small firms (entities
with 15-500 employees) according to data provided by the Small Business
Administration Office of Advocacy. See Firm Size Data at http://sba.gov/advo/research/data.html#us. The rule is expected to apply
uniformly to all such small businesses.
The Commission certifies under 5 U.S.C. 605(b) that this final rule
will not have a significant economic impact on a substantial number of
small entities because it imposes no reporting burdens and because of
the no-cost and low-cost nature of the types of accommodations that
most likely will be requested and required by those whose coverage has
been clarified under the amended ADA's definition of an impairment that
substantially limits a major life activity.\26\
---------------------------------------------------------------------------
\26\ This conclusion is consistent with the Commission's finding
in the final regulatory impact analysis that the costs imposed by
the Amendments Act and the final regulations may, depending on the
data used, impose a cost in excess of $100 million annually for
purposes of EO 12866. Unlike 12866, the Regulatory Flexibility Act
requires a determination of whether a rule will have a ``significant
economic impact on a substantial number of small entities,'' which
is not defined by a specific dollar threshold for purposes of the
Regulatory Flexibility Act. Rather, the Small Business
Administration (SBA) advises that agencies tailor the level, scope,
and complexity of their analysis to the regulated small entity
community at issue in each rule. The SBA advises that agencies
should consider both adverse impacts and beneficial impacts under
the Regulatory Flexibility Act, and can minimize an adverse impact
by including beneficial impacts in the analysis, consistent with the
legislative history of the Act that provided examples of significant
impact to include adverse costs impact that is greater than the
value of the regulatory good. As set forth in our final regulatory
impact analysis, the Commission believes the estimated benefits of
the Amendments Act and these final regulations will be significant.
---------------------------------------------------------------------------
In the public comments on the preliminary assessment, one employer
organization submitted alternative estimates of the number of
individuals who will be affected by the regulations, arguing that a
final regulatory flexibility analysis is warranted, including
alternatives to reduce costs. The organization estimated that 576,000
individuals will newly request reasonable accommodations due to the
Amendments Act. Another employer organization suggested that the
preliminary regulatory impact analysis use of the CPS-ASEC might have
underestimated the number of people that would be considered to have a
disability under these implementing regulations. For the reasons
explained in the final regulatory impact analysis, the Commission has
significantly revised upward its preliminary estimates of the number of
individuals whose coverage has been clarified under the ADAAA and who
may request and require accommodations, accounting for alternative
sources of data cited by commenters and identified through the inter-
agency review process under EO 12866. However, the Commission has also
set forth in the final regulatory impact analysis its rationale for
concluding that this incremental increase in reasonable accommodations
will primarily entail accommodations with no or little costs.
No comments suggested regulatory alternatives that would be more
suitable for small businesses. As described above, portions of the
Commission's ADA regulations were rendered invalid by the changes
Congress made to the ADA in enacting the Amendments Act, and the
Commission therefore had no alternative but to conform its regulations
to the changes Congress made in the statute to the definition of
disability. Therefore, the rationale for this regulatory action is
legislative direction. However, even absent this direction, the adopted
course of action is the most appropriate one, and it is the
Commission's conclusion that the title I
[[Page 16999]]
regulations are likely to have benefits far exceeding costs.
In issuing these final regulations, the Commission has considered
and complied with the provisions of the new EO 13563, in particular
emphasizing public participation and inter-agency coordination. The
Commission's regulations explain and implement Congress's amendments to
the statute, but do not impinge on employer freedom of choice regarding
matters of compliance. To the extent the final regulations and appendix
provide clear explication of the new rules of construction for the
definition of disability and examples of their application, the
regulations provide information to the public in a form that is clear
and intelligible, and promote informed decisionmaking.
Projected Reporting, Recordkeeping, and Other Compliance Requirements
of the Final Rule
The rule does not include reporting requirements and imposes no new
recordkeeping requirements. Compliance costs are expected to stem
primarily from the costs of providing reasonable accommodation for
individuals with substantially limiting impairments who would request
and require accommodations. For all the reasons stated in the foregoing
regulatory impact analysis, it is difficult to quantify how many
additional requests for reasonable accommodation might result from the
ADA Amendments Act and the final regulations. We estimate that the
lower bound annual incremental cost of accommodations would be
approximately $60 million, assuming that 16% of 12 million individuals
whose coverage has been clarified request reasonable accommodations
over five years at a mean cost of $150. We also estimate that the upper
bound annual incremental cost of accommodations would be approximately
$183 million, assuming that 16% of 38.4 million individuals whose
coverage has been clarified request reasonable accommodations over five
years at a mean cost of $150.
As explained in the final regulatory impact analysis, these cost
figures are over-estimations for a multitude of reasons. In particular,
the figures are based on a mean accommodation cost, whereas almost half
of all accommodations impose no costs and the types of accommodations
most likely needed by individuals whose coverage has been clarified as
a result of the Amendments Act would most likely be low and no-cost
accommodations.
We do not believe that administrative costs will add significantly
to the annual costs resulting from the final regulations. We recognize
that covered employers may in some cases need to revise internal
policies and procedures to reflect the broader definition of disability
under the Amendments Act and train personnel to ensure appropriate
compliance with the ADAAA and the revised regulations. In addition,
there will be costs associated with reviewing and analyzing the final
regulations or publications describing their effects and recommended
compliance practices.
Although these types of administrative costs may be particularly
difficult for small businesses that operate with a smaller margin, the
Commission will continue to take steps to reduce that burden. The
Commission is issuing along with the final regulations a user-friendly
question-and-answer guide intended to educate and promote compliance.
The Commission also expects to prepare a small business handbook and to
revise all of its ADA publications, which include dozens of enforcement
guidances and technical assistance documents, some of which are
specifically geared toward small business. Moreover, the Commission
also intends to continue the provision of technical assistance to small
business in its outreach efforts. In fiscal year 2009 alone, compliance
with ADA standards was the main topic at 570 no-cost EEOC outreach
events, reaching more than 35,000 people, many of whom were from small
businesses.
Finally, any estimates of costs do not take into account the
offsetting benefits noted by the research studies submitted by
commenters and reviewed above in the final regulatory impact analysis.
The Commission believes the estimated benefits of the Amendments Act
and these final regulations are significant.
For the foregoing reasons, the Commission concludes that the
regulations will not have a significant economic impact on a
substantial number of small entities.
Relevant Federal Rules That May Duplicate, Overlap or Conflict With the
Proposed Rule
The Commission is unaware of any duplicative, overlapping, or
conflicting federal rules.
Paperwork Reduction Act
These regulations contain no information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act. See 44 U.S.C. 3501, et seq.
Congressional Review Act
To the extent this rule is subject to the Congressional Review Act,
the Commission has complied with its requirements by submitting this
final rule to Congress prior to publication in the Federal Register.
List of Subjects in 29 CFR Part 1630
Equal employment opportunity, Individuals with disabilities.
Dated: March 10, 2011.
For the commission.
Jacqueline A. Berrien,
Chair.
Accordingly, for the reasons set forth in the preamble, the EEOC
amends 29 CFR part 1630 as follows:
PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS
OF THE AMERICANS WITH DISABILITIES ACT
0
1. Revise the authority citation for 29 CFR part 1630 to read as
follows:
Authority: 42 U.S.C. 12116 and 12205a of the Americans with
Disabilities Act, as amended.
0
2. Revise Sec. 1630.1 to read as follows:
Sec. 1630.1 Purpose, applicability, and construction.
(a) Purpose. The purpose of this part is to implement title I of
the Americans with Disabilities Act (ADA), as amended by the ADA
Amendments Act of 2008 (ADAAA or Amendments Act), 42 U.S.C. 12101, et
seq., requiring equal employment opportunities for individuals with
disabilities. The ADA as amended, and these regulations, are intended
to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities,
and to provide clear, strong, consistent, enforceable standards
addressing discrimination.
(b) Applicability. This part applies to ``covered entities'' as
defined at Sec. 1630.2(b).
(c) Construction--(1) In general. Except as otherwise provided in
this part, this part does not apply a lesser standard than the
standards applied under title V of the Rehabilitation Act of 1973 (29
U.S.C. 790-794a, as amended), or the regulations issued by Federal
agencies pursuant to that title.
(2) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures of any Federal law or law of
any State or political subdivision of any State or
[[Page 17000]]
jurisdiction that provides greater or equal protection for the rights
of individuals with disabilities than is afforded by this part.
(3) State workers' compensation laws and disability benefit
programs. Nothing in this part alters the standards for determining
eligibility for benefits under State workers' compensation laws or
under State and Federal disability benefit programs.
(4) Broad coverage. The primary purpose of the ADAAA is to make it
easier for people with disabilities to obtain protection under the ADA.
Consistent with the Amendments Act's purpose of reinstating a broad
scope of protection under the ADA, the definition of ``disability'' in
this part shall be construed broadly in favor of expansive coverage to
the maximum extent permitted by the terms of the ADA. The primary
object of attention in cases brought under the ADA should be whether
covered entities have complied with their obligations and whether
discrimination has occurred, not whether the individual meets the
definition of disability. The question of whether an individual meets
the definition of disability under this part should not demand
extensive analysis.
0
3. Amend Sec. 1630.2 as follows:
0
a. Revise paragraphs (g) through (m).
0
b. In paragraph (o)(1)(ii), remove the words ``a qualified individual
with a disability'' and add, in their place, ``an individual with a
disability who is qualified''.
0
c. In paragraph (o)(3), remove the words ``the qualified individual
with a disability'' and add, in their place, ``the individual with a
disability''.
0
d. Add paragraph (o)(4).
The revisions and additions read as follows:
Sec. 1630.2 Definitions.
* * * * *
(g) Definition of ``disability.''
(1) In general. Disability means, with respect to an individual--
(i) A physical or mental impairment that substantially limits one
or more of the major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment as described in
paragraph (l) of this section. This means that the individual has been
subjected to an action prohibited by the ADA as amended because of an
actual or perceived impairment that is not both ``transitory and
minor.''
(2) An individual may establish coverage under any one or more of
these three prongs of the definition of disability, i.e., paragraphs
(g)(1)(i) (the ``actual disability'' prong), (g)(1)(ii) (the ``record
of'' prong), and/or (g)(1)(iii) (the ``regarded as'' prong) of this
section.
(3) Where an individual is not challenging a covered entity's
failure to make reasonable accommodations and does not require a
reasonable accommodation, it is generally unnecessary to proceed under
the ``actual disability'' or ``record of'' prongs, which require a
showing of an impairment that substantially limits a major life
activity or a record of such an impairment. In these cases, the
evaluation of coverage can be made solely under the ``regarded as''
prong of the definition of disability, which does not require a showing
of an impairment that substantially limits a major life activity or a
record of such an impairment. An individual may choose, however, to
proceed under the ``actual disability'' and/or ``record of'' prong
regardless of whether the individual is challenging a covered entity's
failure to make reasonable accommodations or requires a reasonable
accommodation.
Note to paragraph (g): See Sec. 1630.3 for exceptions to this
definition.
(h) Physical or mental impairment means--
(1) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems,
such as neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(2) Any mental or psychological disorder, such as an intellectual
disability (formerly termed ``mental retardation''), organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.
(i) Major life activities--(1) In general. Major life activities
include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, interacting with others, and working; and
(ii) The operation of a major bodily function, including functions
of the immune system, special sense organs and skin; normal cell
growth; and digestive, genitourinary, bowel, bladder, neurological,
brain, respiratory, circulatory, cardiovascular, endocrine, hemic,
lymphatic, musculoskeletal, and reproductive functions. The operation
of a major bodily function includes the operation of an individual
organ within a body system.
(2) In determining other examples of major life activities, the
term ``major'' shall not be interpreted strictly to create a demanding
standard for disability. ADAAA Section 2(b)(4) (Findings and Purposes).
Whether an activity is a ``major life activity'' is not determined by
reference to whether it is of ``central importance to daily life.''
(j) Substantially limits--
(1) Rules of construction. The following rules of construction
apply when determining whether an impairment substantially limits an
individual in a major life activity:
(i) The term ``substantially limits'' shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the
terms of the ADA. ``Substantially limits'' is not meant to be a
demanding standard.
(ii) An impairment is a disability within the meaning of this
section 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 a major life activity
in order to be considered substantially limiting. Nonetheless, not
every impairment will constitute a disability within the meaning of
this section.
(iii) The primary object of attention in cases brought under the
ADA should be whether covered entities have complied with their
obligations and whether discrimination has occurred, not whether an
individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment
``substantially limits'' a major life activity should not demand
extensive analysis.
(iv) The determination of whether an impairment substantially
limits a major life activity requires an individualized assessment.
However, in making this assessment, the term ``substantially limits''
shall be interpreted and applied to require a degree of functional
limitation that is lower than the standard for ``substantially limits''
applied prior to the ADAAA.
(v) The comparison of an individual's performance of a major life
activity to the performance of the same major life activity by most
people in the general population usually will not require scientific,
medical, or statistical analysis. Nothing in this paragraph is
intended, however, to prohibit the presentation of scientific, medical,
or statistical evidence to make such a comparison where appropriate.
[[Page 17001]]
(vi) The determination of whether an impairment substantially
limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures. However, the ameliorative
effects of ordinary eyeglasses or contact lenses shall be considered in
determining whether an impairment substantially limits a major life
activity.
(vii) An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
active.
(viii) An impairment that substantially limits one major life
activity need not substantially limit other major life activities in
order to be considered a substantially limiting impairment.
(ix) The six-month ``transitory'' part of the ``transitory and
minor'' exception to ``regarded as'' coverage in Sec. 1630.15(f) does
not apply to the definition of ``disability'' under paragraphs
(g)(1)(i) (the ``actual disability'' prong) or (g)(1)(ii) (the ``record
of'' prong) of this section. The effects of an impairment lasting or
expected to last fewer than six months can be substantially limiting
within the meaning of this section.
(2) Non-applicability to the ``regarded as'' prong. Whether an
individual's impairment ``substantially limits'' a major life activity
is not relevant to coverage under paragraph (g)(1)(iii) (the ``regarded
as'' prong) of this section.
(3) Predictable assessments--(i) The principles set forth in
paragraphs (j)(1)(i) through (ix) of this section are intended to
provide for more generous coverage and application of the ADA's
prohibition on discrimination through a framework that is predictable,
consistent, and workable for all individuals and entities with rights
and responsibilities under the ADA as amended.
(ii) Applying the principles set forth in paragraphs (j)(1)(i)
through (ix) of this section, the individualized assessment of some
types of impairments will, in virtually all cases, result in a
determination of coverage under paragraphs (g)(1)(i) (the ``actual
disability'' prong) or (g)(1)(ii) (the ``record of'' prong) of this
section. Given their inherent nature, these types of impairments will,
as a factual matter, virtually always be found to impose a substantial
limitation on a major life activity. Therefore, with respect to these
types of impairments, the necessary individualized assessment should be
particularly simple and straightforward.
(iii) For example, applying the principles set forth in paragraphs
(j)(1)(i) through (ix) of this section, it should easily be concluded
that the following types of impairments will, at a minimum,
substantially limit the major life activities indicated: Deafness
substantially limits hearing; blindness substantially limits seeing; an
intellectual disability (formerly termed mental retardation)
substantially limits brain function; partially or completely missing
limbs or mobility impairments requiring the use of a wheelchair
substantially limit musculoskeletal function; autism substantially
limits brain function; cancer substantially limits normal cell growth;
cerebral palsy substantially limits brain function; diabetes
substantially limits endocrine function; epilepsy substantially limits
neurological function; Human Immunodeficiency Virus (HIV) infection
substantially limits immune function; multiple sclerosis substantially
limits neurological function; muscular dystrophy substantially limits
neurological function; and major depressive disorder, bipolar disorder,
post-traumatic stress disorder, obsessive compulsive disorder, and
schizophrenia substantially limit brain function. The types of
impairments described in this section may substantially limit
additional major life activities not explicitly listed above.
(4) Condition, manner, or duration--
(i) At all times taking into account the principles in paragraphs
(j)(1)(i) through (ix) of this section, in determining whether an
individual is substantially limited in a major life activity, it may be
useful in appropriate cases to consider, as compared to most people in
the general population, the condition under which the individual
performs the major life activity; the manner in which the individual
performs the major life activity; and/or the duration of time it takes
the individual to perform the major life activity, or for which the
individual can perform the major life activity.
(ii) Consideration of facts such as condition, manner, or duration
may include, among other things, consideration of the difficulty,
effort, or time required to perform a major life activity; pain
experienced when performing a major life activity; the length of time a
major life activity can be performed; and/or the way an impairment
affects the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side
effects of medication or burdens associated with following a particular
treatment regimen, may be considered when determining whether an
individual's impairment substantially limits a major life activity.
(iii) In determining whether an individual has a disability under
the ``actual disability'' or ``record of'' prongs of the definition of
disability, the focus is on how a major life activity is substantially
limited, and not on what outcomes an individual can achieve. For
example, someone with a learning disability may achieve a high level of
academic success, but may nevertheless be substantially limited in the
major life activity of learning because of the additional time or
effort he or she must spend to read, write, or learn compared to most
people in the general population.
(iv) Given the rules of construction set forth in paragraphs
(j)(1)(i) through (ix) of this section, it may often be unnecessary to
conduct an analysis involving most or all of these types of facts. This
is particularly true with respect to impairments such as those
described in paragraph (j)(3)(iii) of this section, which by their
inherent nature should be easily found to impose a substantial
limitation on a major life activity, and for which the individualized
assessment should be particularly simple and straightforward.
(5) Examples of mitigating measures--Mitigating measures include,
but are not limited to:
(i) Medication, medical supplies, equipment, or appliances, low-
vision devices (defined as devices that magnify, enhance, or otherwise
augment a visual image, but not including ordinary eyeglasses or
contact lenses), prosthetics including limbs and devices, hearing
aid(s) and cochlear implant(s) or other implantable hearing devices,
mobility devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable accommodations or ``auxiliary aids or services''
(as defined by 42 U.S.C. 12103(1));
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(6) Ordinary eyeglasses or contact lenses--defined. Ordinary
eyeglasses or contact lenses are lenses that are intended to fully
correct visual acuity or to eliminate refractive error.
(k) Has a record of such an impairment--
(1) In general. An individual has a record of a disability if the
individual has a history of, or has been misclassified as having, a
mental or physical impairment that substantially limits one or more
major life activities.
(2) Broad construction. Whether an individual has a record of an
impairment that substantially limited a major life activity shall be
construed
[[Page 17002]]
broadly to the maximum extent permitted by the ADA and should not
demand extensive analysis. An individual will be considered to have a
record of a disability if the individual has a history of an impairment
that substantially limited one or more major life activities when
compared to most people in the general population, or was misclassified
as having had such an impairment. In determining whether an impairment
substantially limited a major life activity, the principles articulated
in paragraph (j) of this section apply.
(3) Reasonable accommodation. An individual with a record of a
substantially limiting impairment may be entitled, absent undue
hardship, to a reasonable accommodation if needed and related to the
past disability. For example, an employee with an impairment that
previously limited, but no longer substantially limits, a major life
activity may need leave or a schedule change to permit him or her to
attend follow-up or ``monitoring'' appointments with a health care
provider.
(l) ``Is regarded as having such an impairment.'' The following
principles apply under the ``regarded as'' prong of the definition of
disability (paragraph (g)(1)(iii) of this section) above:
(1) Except as provided in Sec. 1630.15(f), an individual is
``regarded as having such an impairment'' if the individual is
subjected to a prohibited action because of an actual or perceived
physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major
life activity. Prohibited actions include but are not limited to
refusal to hire, demotion, placement on involuntary leave, termination,
exclusion for failure to meet a qualification standard, harassment, or
denial of any other term, condition, or privilege of employment
(2) Except as provided in Sec. 1630.15(f), an individual is
``regarded as having such an impairment'' any time a covered entity
takes a prohibited action against the individual because of an actual
or perceived impairment, even if the entity asserts, or may or does
ultimately establish, a defense to such action.
(3) Establishing that an individual is ``regarded as having such an
impairment'' does not, by itself, establish liability. Liability is
established under title I of the ADA only when an individual proves
that a covered entity discriminated on the basis of disability within
the meaning of section 102 of the ADA, 42 U.S.C. 12112.
(m) The term ``qualified,'' with respect to an individual with a
disability, means that the individual satisfies the requisite skill,
experience, education and other job-related requirements of the
employment position such individual holds or desires and, with or
without reasonable accommodation, can perform the essential functions
of such position. See Sec. 1630.3 for exceptions to this definition.
(o) * * *
(4) A covered entity is required, absent undue hardship, to provide
a reasonable accommodation to an otherwise qualified individual who
meets the definition of disability under the ``actual disability''
prong (paragraph (g)(1)(i) of this section), or ``record of'' prong
(paragraph (g)(1)(ii) of this section), but is not required to provide
a reasonable accommodation to an individual who meets the definition of
disability solely under the ``regarded as'' prong (paragraph
(g)(1)(iii) of this section).
* * * * *
0
4. Revise Sec. 1630.4 to read as follows:
Sec. 1630.4 Discrimination prohibited.
(a) In general--(1) It is unlawful for a covered entity to
discriminate on the basis of disability against a qualified individual
in regard to:
(i) Recruitment, advertising, and job application procedures;
(ii) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(iii) Rates of pay or any other form of compensation and changes in
compensation;
(iv) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(v) Leaves of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether or
not administered by the covered entity;
(vii) Selection and financial support for training, including:
apprenticeships, professional meetings, conferences and other related
activities, and selection for leaves of absence to pursue training;
(viii) Activities sponsored by a covered entity, including social
and recreational programs; and
(ix) Any other term, condition, or privilege of employment.
(2) The term discrimination includes, but is not limited to, the
acts described in Sec. Sec. 1630.4 through 1630.13 of this part.
(b) Claims of no disability. Nothing in this part shall provide the
basis for a claim that an individual without a disability was subject
to discrimination because of his lack of disability, including a claim
that an individual with a disability was granted an accommodation that
was denied to an individual without a disability.
0
5. Amend Sec. 1630.9 as follows:
0
a. Revise paragraph (c).
0
b. In paragraph (d), in the first sentence, remove the words ``A
qualified individual with a disability'' and add, in their place, the
words ``An individual with a disability''.
0
c. In paragraph (d), in the last sentence, remove the words ``a
qualified individual with a disability'' and add, in their place, the
word ``qualified''.
0
d. Add paragraph (e).
The revisions and additions read as follows:
Sec. 1630.9 Not making reasonable accommodation.
* * * * *
(c) A covered entity shall not be excused from the requirements of
this part because of any failure to receive technical assistance
authorized by section 507 of the ADA, including any failure in the
development or dissemination of any technical assistance manual
authorized by that Act.
* * * * *
(e) A covered entity is required, absent undue hardship, to provide
a reasonable accommodation to an otherwise qualified individual who
meets the definition of disability under the ``actual disability''
prong (Sec. 1630.2(g)(1)(i)), or ``record of'' prong (Sec.
1630.2(g)(1)(ii)), but is not required to provide a reasonable
accommodation to an individual who meets the definition of disability
solely under the ``regarded as'' prong (Sec. 1630.2(g)(1)(iii)).
0
6. Revise Sec. 1630.10 to read as follows:
Sec. 1630.10 Qualification standards, tests, and other selection
criteria.
(a) In general. It is unlawful for a covered entity to use
qualification standards, employment tests or other selection criteria
that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities, on the basis of
disability, unless the standard, test, or other selection criteria, as
used by the covered entity, is shown to be job related for the position
in question and is consistent with business necessity.
(b) Qualification standards and tests related to uncorrected
vision. Notwithstanding Sec. 1630.2(j)(1)(vi) of this part, a covered
entity shall not use qualification standards, employment tests, or
other selection criteria based on an individual's uncorrected vision
unless the standard, test, or other
[[Page 17003]]
selection criterion, as used by the covered entity, is shown to be job
related for the position in question and is consistent with business
necessity. An individual challenging a covered entity's application of
a qualification standard, test, or other criterion based on uncorrected
vision need not be a person with a disability, but must be adversely
affected by the application of the standard, test, or other criterion.
0
7. Amend Sec. 1630.15 by redesignating paragraph (f) as paragraph (g),
and adding new paragraph (f) to read as follows:
Sec. 1630.15 Defenses.
* * * * *
(f) Claims based on transitory and minor impairments under the
``regarded as'' prong. It may be a defense to a charge of
discrimination by an individual claiming coverage under the ``regarded
as'' prong of the definition of disability that the impairment is (in
the case of an actual impairment) or would be (in the case of a
perceived impairment) ``transitory and minor.'' To establish this
defense, a covered entity must demonstrate that the impairment is both
``transitory'' and ``minor.'' Whether the impairment at issue is or
would be ``transitory and minor'' is to be determined objectively. A
covered entity may not defeat ``regarded as'' coverage of an individual
simply by demonstrating that it subjectively believed the impairment
was transitory and minor; rather, the covered entity must demonstrate
that the impairment is (in the case of an actual impairment) or would
be (in the case of a perceived impairment) both transitory and minor.
For purposes of this section, ``transitory'' is defined as lasting or
expected to last six months or less.
* * * * *
0
8. Amend Sec. 1630.16(a) by removing from the last sentence the word
``because'' and adding, in its place, the words ``on the basis''.
* * * * *
0
9. Amend the Appendix to Part 1630 as follows:
0
A. Remove the ``Background.''
0
B. Revise the ``Introduction.''
0
C. Add ``Note on Certain Terminology Used'' after the ``Introduction.''
0
D. Revise Sec. 1630.1.
0
E. Revise Sections 1630.2(a) through (f).
0
F. Revise Sec. 1630.2(g).
0
G. Revise Sec. 1630.2(h).
0
H. Revise Sec. 1630.2(i).
0
I. Revise Sec. 1630.2(j).
0
J. Add Sec. 1630.2(j)(1), 1630.2(j)(3), 1630.2(j)(4), and 1630.2(j)(5)
and (6).
0
K. Revise Sec. 1630.2(k).
0
L. Revise Sec. 1630.2(l).
0
M. Amend Sec. 1630.2(m) by revising the heading and first sentence.
0
N. Amend Sec. 1630.2(o) as follows:
0
i. Remove the first paragraph and add, in its place, three new
paragraphs.
0
ii. Remove the words ``a qualified individual with a disability''
wherever they appear and add, in their place, ``an individual with a
disability''.
0
iii. Remove the words ``the qualified individual with a disability''
wherever they appear and add, in their place, ``the individual with a
disability''.
0
O. Revise Sec. 1630.4.
0
P. Amend Sec. 1630.5 by revising the first paragraph.
0
Q. Amend Sec. 1630.9 as follows:
0
i. Remove the words ``a qualified individual with a disability''
wherever they appear and add, in their place, ``the individual with a
disability''.
0
ii. Remove the words ``the qualified individual with a disability''
wherever they appear and add, in their place, ``the individual with a
disability''.
0
iii. Add new Sec. 1630.9(e) after existing Sec. 1630.9(d).
0
R. Revise Sec. 1630.10.
0
S. Amend Sec. 1630.15 by adding new Sec. 1630.15(f) after existing
Sec. 1630.15(e).
0
T. Amend Sec. 1630.16(a) by removing, in the last sentence, the words
``qualified individuals with disabilities'' and adding, in their place,
``individuals with disabilities who are qualified and''.
0
U. Amend Sec. 1630.16(f) by removing, in the last paragraph, the words
``a qualified individual with a disability'' and adding, in their
place, ``an individual with a disability who is qualified''.
The revisions and additions read as follows:
Appendix to Part 1630--Interpretive Guidance on Title I of the
Americans With Disabilities Act
Introduction
The Americans with Disabilities Act (ADA) is a landmark piece of
civil rights legislation signed into law on July 26, 1990, and
amended effective January 1, 2009. See 42 U.S.C. 12101 et seq., as
amended. In passing the ADA, Congress recognized that
``discrimination against individuals with disabilities continues to
be a serious and pervasive social problem'' and that the
``continuing existence of unfair and unnecessary discrimination and
prejudice denies people with disabilities the opportunity to compete
on an equal basis and to pursue those opportunities for which our
free society is justifiably famous, and costs the United States
billions of dollars in unnecessary expenses resulting from
dependency and nonproductivity.'' 42 U.S.C. 12101(a)(2), (8).
Discrimination on the basis of disability persists in critical areas
such as housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services,
voting, access to public services, and employment. 42 U.S.C.
12101(a)(3). Accordingly, the ADA prohibits discrimination in a wide
range of areas, including employment, public services, and public
accommodations.
Title I of the ADA prohibits disability-based discrimination in
employment. The Equal Employment Opportunity Commission (the
Commission or the EEOC) is responsible for enforcement of title I
(and parts of title V) of the ADA. Pursuant to the ADA as amended,
the EEOC is expressly granted the authority and is expected to amend
these regulations. 42 U.S.C. 12205a. Under title I of the ADA,
covered entities may not discriminate against qualified individuals
on the basis of disability in regard to job application procedures,
the hiring, advancement or discharge of employees, employee
compensation, job training, or other terms, conditions, and
privileges of employment. 42 U.S.C. 12112(a). For these purposes,
``discriminate'' includes (1) limiting, segregating, or classifying
a job applicant or employee in a way that adversely affects the
opportunities or status of the applicant or employee; (2)
participating in a contractual or other arrangement or relationship
that has the effect of subjecting a covered entity's qualified
applicants or employees to discrimination; (3) utilizing standards,
criteria, or other methods of administration that have the effect of
discrimination on the basis of disability; (4) not making reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified individual with a disability, unless the covered
entity can demonstrate that the accommodation would impose an undue
hardship on the operation of the business of the covered entity; (5)
denying employment opportunities to a job applicant or employee who
is otherwise qualified, if such denial is based on the need to make
reasonable accommodation; (6) using qualification standards,
employment tests or other selection criteria that screen out or tend
to screen out an individual with a disability or a class of
individuals with disabilities unless the standard, test or other
selection criterion is shown to be job related for the position in
question and is consistent with business necessity; and (7)
subjecting applicants or employees to prohibited medical inquiries
or examinations. See 42 U.S.C. 12112(b), (d).
As with other civil rights laws, individuals seeking protection
under these anti-discrimination provisions of the ADA generally must
allege and prove that they are members of the ``protected class.''
\1\ Under the
[[Page 17004]]
ADA, this typically means they have to show that they meet the
statutory definition of ``disability.'' 2008 House Judiciary
Committee Report at 5. However, ``Congress did not intend for the
threshold question of disability to be used as a means of excluding
individuals from coverage.'' Id.
---------------------------------------------------------------------------
\1\ Claims of improper disability-related inquiries or medical
examinations, improper disclosure of confidential medical
information, or retaliation may be brought by any applicant or
employee, not just individuals with disabilities. See, e.g.,
Cossette v. Minnesota Power & Light, 188 F.3d 964, 969-70 (8th Cir.
1999); Fredenburg v. Contra Costa County Dep't of Health Servs., 172
F.3d 1176, 1182 (9th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d
591, 594 (10th Cir. 1998). Likewise, a nondisabled applicant or
employee may challenge an employment action that is based on the
disability of an individual with whom the applicant or employee is
known to have a relationship or association. See 42 U.S.C.
12112(b)(4).
---------------------------------------------------------------------------
In the original ADA, Congress defined ``disability'' as (1) a
physical or mental impairment that substantially limits one or more
major life activities of an individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment. 42
U.S.C. 12202(2). Congress patterned these three parts of the
definition of disability--the ``actual,'' ``record of,'' and
``regarded as'' prongs--after the definition of ``handicap'' found
in the Rehabilitation Act of 1973. 2008 House Judiciary Committee
Report at 6. By doing so, Congress intended that the relevant case
law developed under the Rehabilitation Act would be generally
applicable to the term ``disability'' as used in the ADA. H.R. Rep.
No. 485 part 3, 101st Cong., 2d Sess. 27 (1990) (1990 House
Judiciary Report or House Judiciary Report); see also S. Rep. No.
116, 101st Cong., 1st Sess. 21 (1989) (1989 Senate Report or Senate
Report); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 50 (1990)
(1990 House Labor Report or House Labor Report). Congress expected
that the definition of disability and related terms, such as
``substantially limits'' and ``major life activity,'' would be
interpreted under the ADA ``consistently with how courts had applied
the definition of a handicapped individual under the Rehabilitation
Act''--i.e., expansively and in favor of broad coverage. ADA
Amendments Act of 2008 (ADAAA or Amendments Act) at Section 2(a)(1)-
(8) and (b)(1)-(6) (Findings and Purposes); see also Senate
Statement of the Managers to Accompany S. 3406 (2008 Senate
Statement of Managers) at 3 (``When Congress passed the ADA in 1990,
it adopted the functional definition of disability from section 504
of the Rehabilitation Act of 1973, in part, because after 17 years
of development through case law the requirements of the definition
were well understood. Within this framework, with its generous and
inclusive definition of disability, courts treated the determination
of disability as a threshold issue but focused primarily on whether
unlawful discrimination had occurred.''); 2008 House Judiciary
Committee Report at 6 & n.6 (noting that courts had interpreted this
Rehabilitation Act definition ``broadly to include persons with a
wide range of physical and mental impairments'').
That expectation was not fulfilled. ADAAA Section 2(a)(3). The
holdings of several Supreme Court cases sharply narrowed the broad
scope of protection Congress originally intended under the ADA, thus
eliminating protection for many individuals whom Congress intended
to protect. Id. For example, in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999), the Court ruled that whether an impairment
substantially limits a major life activity is to be determined with
reference to the ameliorative effects of mitigating measures. In
Sutton, the Court also adopted a restrictive reading of the meaning
of being ``regarded as'' disabled under the ADA's definition of
disability. Subsequently, in Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184 (2002), the Court held that the terms
``substantially'' and ``major'' in the definition of disability
``need to be interpreted strictly to create a demanding standard for
qualifying as disabled'' under the ADA, and that to be substantially
limited in performing a major life activity under the ADA, ``an
individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of central
importance to most people's daily lives.''
As a result of these Supreme Court decisions, lower courts ruled
in numerous cases that individuals with a range of substantially
limiting impairments were not individuals with disabilities, and
thus not protected by the ADA. See 2008 Senate Statement of Managers
at 3 (``After the Court's decisions in Sutton that impairments must
be considered in their mitigated state and in Toyota that there must
be a demanding standard for qualifying as disabled, lower courts
more often found that an individual's impairment did not constitute
a disability. As a result, in too many cases, courts would never
reach the question whether discrimination had occurred.''). Congress
concluded that these rulings imposed a greater degree of limitation
and expressed a higher standard than it had originally intended, and
coupled with the EEOC's 1991 ADA regulations which had defined the
term ``substantially limits'' as ``significantly restricted,''
unduly precluded many individuals from being covered under the ADA.
Id.--(``[t]hus, some 18 years later we are faced with a situation in
which physical or mental impairments that would previously have been
found to constitute disabilities are not considered disabilities
under the Supreme Court's narrower standard'' and ``[t]he resulting
court decisions contribute to a legal environment in which
individuals must demonstrate an inappropriately high degree of
functional limitation in order to be protected from discrimination
under the ADA'').
Consequently, Congress amended the ADA with the Americans with
Disabilities Act Amendments Act of 2008. The ADAAA was signed into
law on September 25, 2008, and became effective on January 1, 2009.
This legislation is the product of extensive bipartisan efforts, and
the culmination of collaboration and coordination between
legislators and stakeholders, including representatives of the
disability, business, and education communities. See Statement of
Representatives Hoyer and Sensenbrenner, 154 Cong. Rec. H8294-96
(daily ed. Sept. 17, 2008) (Hoyer-Sensenbrenner Congressional Record
Statement); Senate Statement of Managers at 1. The express purposes
of the ADAAA are, among other things:
(1) To carry out the ADA's objectives of providing ``a clear and
comprehensive national mandate for the elimination of
discrimination'' and ``clear, strong, consistent, enforceable
standards addressing discrimination'' by reinstating a broad scope
of protection under the ADA;
(2) To reject the requirement enunciated in Sutton and its
companion cases that whether an impairment substantially limits a
major life activity is to be determined with reference to the
ameliorative effects of mitigating measures;
(3) To reject the Supreme Court's reasoning in Sutton with
regard to coverage under the third prong of the definition of
disability and to reinstate the reasoning of the Supreme Court in
School Board of Nassau County v. Arline, 480 U.S. 273 (1987), which
set forth a broad view of the third prong of the definition of
handicap under the Rehabilitation Act of 1973;
(4) To reject the standards enunciated by the Supreme Court in
Toyota that the terms ``substantially'' and ``major'' in the
definition of disability under the ADA ``need to be interpreted
strictly to create a demanding standard for qualifying as
disabled,'' and that to be substantially limited in performing a
major life activity under the ADA ``an individual must have an
impairment that prevents or severely restricts the individual from
doing activities that are of central importance to most people's
daily lives'';
(5) To convey congressional intent that the standard created by
the Supreme Court in Toyota for ``substantially limits,'' and
applied by lower courts in numerous decisions, has created an
inappropriately high level of limitation necessary to obtain
coverage under the ADA;
(6) To convey that it is the intent of Congress that the primary
object of attention in cases brought under the ADA should be whether
entities covered under the ADA have complied with their obligations,
and to convey that the question of whether an individual's
impairment is a disability under the ADA should not demand extensive
analysis; and
(7) To express Congress' expectation that the EEOC will revise
that portion of its current regulations that defines the term
``substantially limits'' as ``significantly restricted'' to be
consistent with the ADA as amended.
ADAAA Section 2(b). The findings and purposes of the ADAAA
``give[] clear guidance to the courts and * * * [are] intend[ed] to
be applied appropriately and consistently.'' 2008 Senate Statement
of Managers at 5.
The EEOC has amended its regulations to reflect the ADAAA's
findings and purposes. The Commission believes that it is essential
also to amend its appendix to the original regulations at the same
time, and to reissue this interpretive guidance as amended
concurrently with the issuance of the amended regulations. This will
help to ensure that individuals with disabilities understand their
rights, and to facilitate and encourage compliance by covered
entities under this part.
Accordingly, this amended appendix addresses the major
provisions of this part and explains the major concepts related to
disability-based employment discrimination. This appendix represents
the Commission's interpretation of the issues addressed within it,
and the Commission will be guided by this
[[Page 17005]]
appendix when resolving charges of employment discrimination.
Note on Certain Terminology Used
The ADA, the EEOC's ADA regulations, and this appendix use the
term ``disabilities'' rather than the term ``handicaps'' which was
originally used in the Rehabilitation Act of 1973, 29 U.S.C. 701-
796. Substantively, these terms are equivalent. As originally noted
by the House Committee on the Judiciary, ``[t]he use of the term
`disabilities' instead of the term `handicaps' reflects the desire
of the Committee to use the most current terminology. It reflects
the preference of persons with disabilities to use that term rather
than `handicapped' as used in previous laws, such as the
Rehabilitation Act of 1973 * * *.'' 1990 House Judiciary Report at
26-27; see also 1989 Senate Report at 21; 1990 House Labor Report at
50-51.
In addition, consistent with the Amendments Act, revisions have
been made to the regulations and this Appendix to refer to
``individual with a disability'' and ``qualified individual'' as
separate terms, and to change the prohibition on discrimination to
``on the basis of disability'' instead of prohibiting discrimination
against a qualified individual ``with a disability because of the
disability of such individual.'' ``This ensures that the emphasis in
questions of disability discrimination is properly on the critical
inquiry of whether a qualified person has been discriminated against
on the basis of disability, and not unduly focused on the
preliminary question of whether a particular person is a `person
with a disability.' '' 2008 Senate Statement of Managers at 11.
The use of the term ``Americans'' in the title of the ADA, in
the EEOC's regulations, or in this Appendix as amended is not
intended to imply that the ADA only applies to United States
citizens. Rather, the ADA protects all qualified individuals with
disabilities, regardless of their citizenship status or nationality,
from discrimination by a covered entity.
Finally, the terms ``employer'' and ``employer or other covered
entity'' are used interchangeably throughout this Appendix to refer
to all covered entities subject to the employment provisions of the
ADA.
Section 1630.1 Purpose, Applicability and Construction
Section 1630.1(a) Purpose
The express purposes of the ADA as amended are to provide a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities; to provide
clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities; to ensure that
the Federal Government plays a central role in enforcing the
standards articulated in the ADA on behalf of individuals with
disabilities; and to invoke the sweep of congressional authority to
address the major areas of discrimination faced day-to-day by people
with disabilities. 42 U.S.C. 12101(b). The EEOC's ADA regulations
are intended to implement these Congressional purposes in simple and
straightforward terms.
Section 1630.1(b) Applicability
The EEOC's ADA regulations as amended apply to all ``covered
entities'' as defined at Sec. 1630.2(b). The ADA defines ``covered
entities'' to mean an employer, employment agency, labor
organization, or joint labor-management committee. 42 U.S.C.
12111(2). All covered entities are subject to the ADA's rules
prohibiting discrimination. 42 U.S.C. 12112.
Section 1630.1(c) Construction
The ADA must be construed as amended. The primary purpose of the
Amendments Act was to make it easier for people with disabilities to
obtain protection under the ADA. See Joint Hoyer-Sensenbrenner
Statement on the Origins of the ADA Restoration Act of 2008, H.R.
3195 (reviewing provisions of H.R. 3195 as revised following
negotiations between representatives of the disability and business
communities) (Joint Hoyer-Sensenbrenner Statement) at 2.
Accordingly, under the ADA as amended and the EEOC's regulations,
the definition of ``disability'' ``shall be construed in favor of
broad coverage of individuals under [the ADA], to the maximum extent
permitted by the terms of [the ADA].'' 42 U.S.C. 12102(4)(A); see
also 2008 Senate Statement of Managers at 3 (``The ADA Amendments
Act * * * reiterates that Congress intends that the scope of the
[ADA] be broad and inclusive.''). This construction is also intended
to reinforce the general rule that civil rights statutes must be
broadly construed to achieve their remedial purpose. Id. at 2; see
also 2008 House Judiciary Committee Report at 19 (this rule of
construction ``directs courts to construe the definition of
`disability' broadly to advance the ADA's remedial purposes'' and
thus ``brings treatment of the ADA's definition of disability in
line with treatment of other civil rights laws, which should be
construed broadly to effectuate their remedial purposes'').
The ADAAA and the EEOC's regulations also make clear that the
primary object of attention in cases brought under the ADA should be
whether entities covered under the ADA have complied with their
obligations, not--whether the individual meets the definition of
disability. ADAAA Section 2(b)(5). This means, for example,
examining whether an employer has discriminated against an employee,
including whether an employer has fulfilled its obligations with
respect to providing a ``reasonable accommodation'' to an individual
with a disability; or whether an employee has met his or her
responsibilities under the ADA with respect to engaging in the
reasonable accommodation ``interactive process.'' See also 2008
Senate Statement of Managers at 4 (``[L]ower court cases have too
often turned solely on the question of whether the plaintiff is an
individual with a disability rather than the merits of
discrimination claims, such as whether adverse decisions were
impermissibly made by the employer on the basis of disability,
reasonable accommodations were denied, or qualification standards
were unlawfully discriminatory.''); 2008 House Judiciary Committee
Report at 6 (``An individual who does not qualify as disabled * * *
does not meet th[e] threshold question of coverage in the protected
class and is therefore not permitted to attempt to prove his or her
claim of discriminatory treatment.'').
Further, the question of whether an individual has a disability
under this part ``should not demand extensive analysis.'' ADAAA
Section 2(b)(5). See also House Education and Labor Committee Report
at 9 (``The Committee intends that the establishment of coverage
under the ADA should not be overly complex nor difficult. * * *'').
In addition, unless expressly stated otherwise, the standards
applied in the ADA are intended to provide at least as much
protection as the standards applied under the Rehabilitation Act of
1973.
The ADA does not preempt any Federal law, or any State or local
law, that grants to individuals with disabilities protection greater
than or equivalent to that provided by the ADA. This means that the
existence of a lesser standard of protection to individuals with
disabilities under the ADA will not provide a defense to failing to
meet a higher standard under another law. Thus, for example, title I
of the ADA would not be a defense to failing to prepare and maintain
an affirmative action program under section 503 of the
Rehabilitation Act. On the other hand, the existence of a lesser
standard under another law will not provide a defense to failing to
meet a higher standard under the ADA. See 1990 House Labor Report at
135; 1990 House Judiciary Report at 69-70.
This also means that an individual with a disability could
choose to pursue claims under a State discrimination or tort law
that does not confer greater substantive rights, or even confers
fewer substantive rights, if the potential available remedies would
be greater than those available under the ADA and this part. The ADA
does not restrict an individual with a disability from pursuing such
claims in addition to charges brought under this part. 1990 House
Judiciary Report at 69-70.
The ADA does not automatically preempt medical standards or
safety requirements established by Federal law or regulations. It
does not preempt State, county, or local laws, ordinances or
regulations that are consistent with this part and designed to
protect the public health from individuals who pose a direct threat
to the health or safety of others that cannot be eliminated or
reduced by reasonable accommodation. However, the ADA does preempt
inconsistent requirements established by State or local law for
safety or security sensitive positions. See 1989 Senate Report at
27; 1990 House Labor Report at 57.
An employer allegedly in violation of this part cannot
successfully defend its actions by relying on the obligation to
comply with the requirements of any State or local law that imposes
prohibitions or limitations on the eligibility of individuals with
disabilities who are qualified to practice any occupation or
profession. For example, suppose a municipality has an ordinance
that prohibits individuals with tuberculosis from teaching school
children. If an individual with dormant tuberculosis challenges a
private school's refusal to hire him or her on the basis of the
tuberculosis, the private school
[[Page 17006]]
would not be able to rely on the city ordinance as a defense under
the ADA.
Paragraph (c)(3) is consistent with language added to section
501 of the ADA by the ADA Amendments Act. It makes clear that
nothing in this part is intended to alter the determination of
eligibility for benefits under state workers' compensation laws or
Federal and State disability benefit programs. State workers'
compensation laws and Federal disability benefit programs, such as
programs that provide payments to veterans with service-connected
disabilities and the Social Security Disability Insurance program,
have fundamentally different purposes than title I of the ADA.
Section 1630.2 Definitions
Sections 1630.2(a)-(f) Commission, Covered Entity, etc.
The definitions section of part 1630 includes several terms that
are identical, or almost identical, to the terms found in title VII
of the Civil Rights Act of 1964. Among these terms are
``Commission,'' ``Person,'' ``State,'' and ``Employer.'' These terms
are to be given the same meaning under the ADA that they are given
under title VII. In general, the term ``employee'' has the same
meaning that it is given under title VII. However, the ADA's
definition of ``employee'' does not contain an exception, as does
title VII, for elected officials and their personal staffs. It
should further be noted that all State and local governments are
covered by title II of the ADA whether or not they are also covered
by this part. Title II, which is enforced by the Department of
Justice, became effective on January 26, 1992. See 28 CFR part 35.
The term ``covered entity'' is not found in title VII. However,
the title VII definitions of the entities included in the term
``covered entity'' (e.g., employer, employment agency, labor
organization, etc.) are applicable to the ADA.
Section 1630.2(g) Disability
In addition to the term ``covered entity,'' there are several
other terms that are unique to the ADA as amended. The first of
these is the term ``disability.'' ``This definition is of critical
importance because as a threshold issue it determines whether an
individual is covered by the ADA.'' 2008 Senate Statement of
Managers at 6.
In the original ADA, ``Congress sought to protect anyone who
experiences discrimination because of a current, past, or perceived
disability.'' 2008 Senate Statement of Managers at 6. Accordingly,
the definition of the term ``disability'' is divided into three
prongs: An individual is considered to have a ``disability'' if that
individual (1) has a physical or mental impairment that
substantially limits one or more of that person's major life
activities (the ``actual disability'' prong); (2) has a record of
such an impairment (the ``record of'' prong); or (3) is regarded by
the covered entity as an individual with a disability as defined in
Sec. 1630.2(l) (the ``regarded as'' prong). The ADAAA retained the
basic structure and terms of the original definition of disability.
However, the Amendments Act altered the interpretation and
application of this critical statutory term in fundamental ways. See
2008 Senate Statement of Managers at 1 (``The bill maintains the
ADA's inherently functional definition of disability'' but
``clarifies and expands the definition's meaning and
application.'').
As noted above, the primary purpose of the ADAAA is to make it
easier for people with disabilities to obtain protection under the
ADA. See Joint Hoyer-Sensenbrenner Statement at 2. Accordingly, the
ADAAA provides rules of construction regarding the definition of
disability. Consistent with the congressional intent to reinstate a
broad scope of protection under the ADA, the ADAAA's rules of
construction require that the definition of ``disability'' ``shall
be construed in favor of broad coverage of individuals under [the
ADA], to the maximum extent permitted by the terms of [the ADA].''
42 U.S.C. 12102(4)(A). The legislative history of the ADAAA is
replete with references emphasizing this principle. See Joint Hoyer-
Sensenbrenner Statement at 2 (``[The bill] establishes that the
definition of disability must be interpreted broadly to achieve the
remedial purposes of the ADA''); 2008 Senate Statement of Managers
at 1 (the ADAAA's purpose is to ``enhance the protections of the
[ADA]'' by ``expanding the definition, and by rejecting several
opinions of the United States Supreme Court that have had the effect
of restricting the meaning and application of the definition of
disability''); id. (stressing the importance of removing barriers
``to construing and applying the definition of disability more
generously''); id. at 4 (``The managers have introduced the [ADAAA]
to restore the proper balance and application of the ADA by
clarifying and broadening the definition of disability, and to
increase eligibility for the protections of the ADA.''); id. (``It
is our expectation that because the bill makes the definition of
disability more generous, some people who were not covered before
will now be covered.''); id. (warning that ``the definition of
disability should not be unduly used as a tool for excluding
individuals from the ADA's protections''); id. (this principle
``sends a clear signal of our intent that the courts must interpret
the definition of disability broadly rather than stringently'');
2008 House Judiciary Committee Report at 5 (``The purpose of the
bill is to restore protection for the broad range of individuals
with disabilities as originally envisioned by Congress by responding
to the Supreme Court's narrow interpretation of the definition of
disability.'').
Further, as the purposes section of the ADAAA explicitly
cautions, the ``primary object of attention'' in cases brought under
the ADA should be whether entities covered under the ADA have
complied with their obligations. As noted above, this means, for
example, examining whether an employer has discriminated against an
employee, including whether an employer has fulfilled its
obligations with respect to providing a ``reasonable accommodation''
to an individual with a disability; or whether an employee has met
his or her responsibilities under the ADA with respect to engaging
in the reasonable accommodation ``interactive process.'' ADAAA
Section 2(b)(5); see also 2008 Senate Statement of Managers at 4
(``[L]ower court cases have too often turned solely on the question
of whether the plaintiff is an individual with a disability rather
than the merits of discrimination claims, such as whether adverse
decisions were impermissibly made by the employer on the basis of
disability, reasonable accommodations were denied, or qualification
standards were unlawfully discriminatory.''); 2008 House Judiciary
Committee Report (criticizing pre-ADAAA court decisions which
``prevented individuals that Congress unquestionably intended to
cover from ever getting a chance to prove their case'').
Accordingly, the threshold coverage question of whether an
individual's impairment is a disability under the ADA ``should not
demand extensive analysis.'' ADAAA Section 2(b)(5).
Section 1630.2(g)(2) provides that an individual may establish
coverage under any one or more (or all three) of the prongs in the
definition of disability. However, to be an individual with a
disability, an individual is only required to satisfy one prong.
As Sec. 1630.2(g)(3) indicates, in many cases it may be
unnecessary for an individual to resort to coverage under the
``actual disability'' or ``record of'' prongs. Where the need for a
reasonable accommodation is not at issue--for example, where there
is no question that the individual is ``qualified'' without a
reasonable accommodation and is not seeking or has not sought a
reasonable accommodation--it would not be necessary to determine
whether the individual is substantially limited in a major life
activity (under the actual disability prong) or has a record of a
substantially limiting impairment (under the record of prong). Such
claims could be evaluated solely under the ``regarded as'' prong of
the definition. In fact, Congress expected the first and second
prongs of the definition of disability ``to be used only by people
who are affirmatively seeking reasonable accommodations * * *'' and
that ``[a]ny individual who has been discriminated against because
of an impairment--short of being granted a reasonable accommodation
* * *--should be bringing a claim under the third prong of the
definition which will require no showing with regard to the severity
of his or her impairment.'' Joint Hoyer-Sensenbrenner Statement at
4. An individual may choose, however, to proceed under the ``actual
disability'' and/or ``record of'' prong regardless of whether the
individual is challenging a covered entity's failure to make
reasonable accommodation or requires a reasonable accommodation.
To fully understand the meaning of the term ``disability,'' it
is also necessary to understand what is meant by the terms
``physical or mental impairment,'' ``major life activity,''
``substantially limits,'' ``record of,'' and ``regarded as.'' Each
of these terms is discussed below.
Section 1630.2(h) Physical or Mental Impairment
Neither the original ADA nor the ADAAA provides a definition for
the terms ``physical or mental impairment.'' However, the
legislative history of the Amendments Act notes that Congress
``expect[s] that the current regulatory definition of these terms,
[[Page 17007]]
as promulgated by agencies such as the U.S. Equal Employment
Opportunity Commission (EEOC), the Department of Justice (DOJ) and
the Department of Education Office of Civil Rights (DOE OCR) will
not change.'' 2008 Senate Statement of Managers at 6. The definition
of ``physical or mental impairment'' in the EEOC's regulations
remains based on the definition of the term ``physical or mental
impairment'' found in the regulations implementing section 504 of
the Rehabilitation Act at 34 CFR part 104. However, the definition
in EEOC's regulations adds additional body systems to those provided
in the section 504 regulations and makes clear that the list is non-
exhaustive.
It is important to distinguish between conditions that are
impairments and physical, psychological, environmental, cultural,
and economic characteristics that are not impairments. The
definition of the term ``impairment'' does not include physical
characteristics such as eye color, hair color, left-handedness, or
height, weight, or muscle tone that are within ``normal'' range and
are not the result of a physiological disorder. The definition,
likewise, does not include characteristic predisposition to illness
or disease. Other conditions, such as pregnancy, that are not the
result of a physiological disorder are also not impairments.
However, a pregnancy-related impairment that substantially limits a
major life activity is a disability under the first prong of the
definition. Alternatively, a pregnancy-related impairment may
constitute a ``record of'' a substantially limiting impairment,'' or
may be covered under the ``regarded as'' prong if it is the basis
for a prohibited employment action and is not ``transitory and
minor.''
The definition of an impairment also does not include common
personality traits such as poor judgment or a quick temper where
these are not symptoms of a mental or psychological disorder.
Environmental, cultural, or economic disadvantages such as poverty,
lack of education, or a prison record are not impairments. Advanced
age, in and of itself, is also not an impairment. However, various
medical conditions commonly associated with age, such as hearing
loss, osteoporosis, or arthritis would constitute impairments within
the meaning of this part. See 1989 Senate Report at 22-23; 1990
House Labor Report at 51-52; 1990 House Judiciary Report at 28-29.
Section 1630.2(i) Major Life Activities
The ADAAA provided significant new guidance and clarification on
the subject of ``major life activities.'' As the legislative history
of the Amendments Act explains, Congress anticipated that protection
under the ADA would now extend to a wider range of cases, in part as
a result of the expansion of the category of major life activities.
See 2008 Senate Statement of Managers at 8 n.17.
For purposes of clarity, the Amendments Act provides an
illustrative list 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
ADA Amendments expressly made this statutory list of examples of
major life activities non-exhaustive, and the regulations include
sitting, reaching, and interacting with others as additional
examples. Many of these major life activities listed in the ADA
Amendments Act and the regulations already had been included in the
EEOC's 1991 now-superseded regulations implementing title I of the
ADA and in sub-regulatory documents, and already were recognized by
the courts.
The ADA as amended also explicitly defines ``major life
activities'' to include the operation of ``major bodily functions.''
This was an important addition to the statute. This clarification
was needed to ensure that the impact of an impairment on the
operation of a major bodily function would not be overlooked or
wrongly dismissed as falling outside the definition of ``major life
activities'' under the ADA. 2008 House Judiciary Committee Report at
16; see also 2008 Senate Statement of Managers at 8 (``for the first
time [in the ADAAA], the category of `major life activities' is
defined to include the operation of major bodily functions, thus
better addressing chronic impairments that can be substantially
limiting'').
The regulations include all of those major bodily functions
identified in the ADA Amendments Act's non-exhaustive list of
examples and add a number of others that are consistent with the
body systems listed in the regulations' definition of ``impairment''
(at Sec. 1630.2(h)) and with the U.S. Department of Labor's
nondiscrimination and equal employment opportunity regulations
implementing section 188 of the Workforce Investment Act of 1998, 29
U.S.C. 2801, et seq. Thus, special sense organs, skin,
genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal
functions are major bodily functions not included in the statutory
list of examples but included in Sec. 1630.2(i)(1)(ii). The
Commission has added these examples to further illustrate the non-
exhaustive list of major life activities, including major bodily
functions, and to emphasize that the concept of major life
activities is to be interpreted broadly consistent with the
Amendments Act. The regulations also provide that the operation of a
major bodily function may include the operation of an individual
organ within a body system. This would include, for example, the
operation of the kidney, liver, pancreas, or other organs.
The link between particular impairments and various major bodily
functions should not be difficult to identify. Because impairments,
by definition, affect the functioning of body systems, they will
generally affect major bodily functions. For example, cancer affects
an individual's normal cell growth; diabetes affects the operation
of the pancreas and also the function of the endocrine system; and
Human Immunodeficiency Virus (HIV) infection affects the immune
system. Likewise, sickle cell disease affects the functions of the
hemic system, lymphedema affects lymphatic functions, and rheumatoid
arthritis affects musculoskeletal functions.
In the legislative history of the ADAAA, Congress expressed its
expectation that the statutory expansion of ``major life
activities'' to include major bodily functions (along with other
statutory changes) would lead to more expansive coverage. See 2008
Senate Statement of Managers at 8 n.17 (indicating that these
changes will make it easier for individuals to show that they are
eligible for the ADA's protections under the first prong of the
definition of disability). The House Education and Labor Committee
explained that the inclusion of major bodily functions would
``affect cases such as U.S. v. Happy Time Day Care Ctr. in which the
courts struggled to analyze whether the impact of HIV infection
substantially limits various major life activities of a five-year-
old child, and recognizing, among other things, that `there is
something inherently illogical about inquiring whether' a five-year-
old's ability to procreate is substantially limited by his HIV
infection; Furnish v. SVI Sys., Inc, in which the court found that
an individual with cirrhosis of the liver caused by Hepatitis B is
not disabled because liver function--unlike eating, working, or
reproducing--`is not integral to one's daily existence;' and
Pimental v. Dartmouth-Hitchcock Clinic, in which the court concluded
that the plaintiff's stage three breast cancer did not substantially
limit her ability to care for herself, sleep, or concentrate. The
Committee expects that the plaintiffs in each of these cases could
establish a [substantial limitation] on major bodily functions that
would qualify them for protection under the ADA.'' 2008 House
Education and Labor Committee Report at 12.
The examples of major life activities (including major bodily
functions) in the ADAAA and the EEOC's regulations are illustrative
and non-exhaustive, and the absence of a particular life activity or
bodily function from the examples does not create a negative
implication as to whether an omitted activity or function
constitutes a major life activity under the statute. See 2008 Senate
Statement of Managers at 8; see also 2008 House Committee on Educ.
and Labor Report at 11; 2008 House Judiciary Committee Report at 17.
The Commission anticipates that courts will recognize other
major life activities, consistent with the ADA Amendments Act's
mandate to construe the definition of disability broadly. As a
result of the ADA Amendments Act's rejection of the holding in
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002),
whether an activity is a ``major life activity'' is not determined
by reference to whether it is of ``central importance to daily
life.'' See Toyota, 534 U.S. at 197 (defining ``major life
activities'' as activities that are of ``central importance to most
people's daily lives''). Indeed, this holding was at odds with the
earlier Supreme Court decision of Bragdon v. Abbott, 524 U.S. 624
(1998), which held that a major life activity (in that case,
reproduction) does not have to have a ``public, economic or daily
aspect.'' Id. at 639.
Accordingly, the regulations provide that in determining other
examples of major life activities, the term ``major'' shall not be
interpreted strictly to create a demanding standard for disability.
Cf. 2008 Senate Statement of Managers at 7 (indicating that a person
is considered an individual with a disability for purposes of the
first prong when one or more of the individual's
[[Page 17008]]
``important life activities'' are restricted) (citing 1989 Senate
Report at 23). The regulations also reject the notion that to be
substantially limited in performing a major life activity, an
individual must have an impairment that prevents or severely
restricts the individual from doing ``activities that are of central
importance to most people's daily lives.'' Id.; see also 2008 Senate
Statement of Managers at 5 n.12.
Thus, for example, lifting is a major life activity regardless
of whether an individual who claims to be substantially limited in
lifting actually performs activities of central importance to daily
life that require lifting. Similarly, the Commission anticipates
that the major life activity of performing manual tasks (which was
at issue in Toyota) could have many different manifestations, such
as performing tasks involving fine motor coordination, or performing
tasks involving grasping, hand strength, or pressure. Such tasks
need not constitute activities of central importance to most
people's daily lives, nor must an individual show that he or she is
substantially limited in performing all manual tasks.
Section 1630.2(j) Substantially Limits
In any case involving coverage solely under the ``regarded as''
prong of the definition of ``disability'' (e.g., cases where
reasonable accommodation is not at issue), it is not necessary to
determine whether an individual is ``substantially limited'' in any
major life activity. See 2008 Senate Statement of Managers at 10;
id. at 13 (``The functional limitation imposed by an impairment is
irrelevant to the third `regarded as' prong.''). Indeed, Congress
anticipated that the first and second prongs of the definition of
disability would ``be used only by people who are affirmatively
seeking reasonable accommodations * * * '' and that ``[a]ny
individual who has been discriminated against because of an
impairment--short of being granted a reasonable accommodation * *
*--should be bringing a claim under the third prong of the
definition which will require no showing with regard to the severity
of his or her impairment.'' Joint Hoyer-Sensenbrenner Statement at
4. Of course, an individual may choose, however, to proceed under
the ``actual disability'' and/or ``record of'' prong regardless of
whether the individual is challenging a covered entity's failure to
make reasonable accommodations or requires a reasonable
accommodation. The concept of ``substantially limits'' is only
relevant in cases involving coverage under the ``actual disability''
or ``record of'' prong of the definition of disability. Thus, the
information below pertains to these cases only.
Section 1630.2(j)(1) Rules of Construction
It is clear in the text and legislative history of the ADAAA
that Congress concluded the courts had incorrectly construed
``substantially limits,'' and disapproved of the EEOC's now-
superseded 1991 regulation defining the term to mean ``significantly
restricts.'' See 2008 Senate Statement of Managers at 6 (``We do not
believe that the courts have correctly instituted the level of
coverage we intended to establish with the term `substantially
limits' in the ADA'' and ``we believe that the level of limitation,
and the intensity of focus, applied by the Supreme Court in Toyota
goes beyond what we believe is the appropriate standard to create
coverage under this law.''). Congress extensively deliberated over
whether a new term other than ``substantially limits'' should be
adopted to denote the appropriate functional limitation necessary
under the first and second prongs of the definition of disability.
See 2008 Senate Statement of Managers at 6-7. Ultimately, Congress
affirmatively opted to retain this term in the Amendments Act,
rather than replace it. It concluded that ``adopting a new,
undefined term that is subject to widely disparate meanings is not
the best way to achieve the goal of ensuring consistent and
appropriately broad coverage under this Act.'' Id. Instead, Congress
determined ``a better way * * * to express [its] disapproval of
Sutton and Toyota (along with the current EEOC regulation) is to
retain the words `substantially limits,' but clarify that it is not
meant to be a demanding standard.'' Id. at 7. To achieve that goal,
Congress set forth detailed findings and purposes and ``rules of
construction'' to govern the interpretation and application of this
concept going forward. See ADAAA Sections 2-4; 42 U.S.C. 12102(4).
The Commission similarly considered whether to provide a new
definition of ``substantially limits'' in the regulation. Following
Congress's lead, however, the Commission ultimately concluded that a
new definition would inexorably lead to greater focus and intensity
of attention on the threshold issue of coverage than intended by
Congress. Therefore, the regulations simply provide rules of
construction that must be applied in determining whether an
impairment substantially limits (or substantially limited) a major
life activity. These are each discussed in greater detail below.
Section 1630.2(j)(1)(i): Broad Construction; not a Demanding Standard
Section 1630.2(j)(1)(i) states: ``The term `substantially
limits' shall be construed broadly in favor of expansive coverage,
to the maximum extent permitted by the terms of the ADA.
`Substantially limits' is not meant to be a demanding standard.''
Congress stated in the ADA Amendments Act that the definition of
disability ``shall be construed in favor of broad coverage,'' and
that ``the term `substantially limits' shall be interpreted
consistently with the findings and purposes of the ADA Amendments
Act of 2008.'' 42 U.S.C. 12101(4)(A)-(B), as amended. ``This is a
textual provision that will legally guide the agencies and courts in
properly interpreting the term `substantially limits.' '' Hoyer-
Sensenbrenner Congressional Record Statement at H8295. As Congress
noted in the legislative history of the ADAAA, ``[t]o be clear, the
purposes section conveys our intent to clarify not only that
`substantially limits' should be measured by a lower standard than
that used in Toyota, but also that the definition of disability
should not be unduly used as a tool for excluding individuals from
the ADA's protections.'' 2008 Senate Statement of Managers at 5
(also stating that ``[t]his rule of construction, together with the
rule of construction providing that the definition of disability
shall be construed in favor of broad coverage of individuals sends a
clear signal of our intent that the courts must interpret the
definition of disability broadly rather than stringently''). Put
most succinctly, ``substantially limits'' ``is not meant to be a
demanding standard.'' 2008 Senate Statement of Managers at 7.
Section 1630.2(j)(1)(ii): Significant or Severe Restriction Not
Required; Nonetheless, Not Every Impairment Is Substantially Limiting
Section 1630.2(j)(1)(ii) states: ``An impairment is a disability
within the meaning of this section 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 a major life activity in order to be
considered substantially limiting. Nonetheless, not every impairment
will constitute a `disability' within the meaning of this section.''
In keeping with the instruction that the term ``substantially
limits'' is not meant to be a demanding standard, the regulations
provide 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. However, to be
substantially limited in performing a major life activity an
individual need not have an impairment that prevents or
significantly or severely restricts the individual from performing a
major life activity. See 2008 Senate Statement of Managers at 2, 6-8
& n.14; 2008 House Committee on Educ. and Labor Report at 9-10
(``While the limitation imposed by an impairment must be important,
it need not rise to the level of severely restricting or
significantly restricting the ability to perform a major life
activity to qualify as a disability.''); 2008 House Judiciary
Committee Report at 16 (similarly requiring an ``important''
limitation). The level of limitation required is ``substantial'' as
compared to most people in the general population, which does not
require a significant or severe restriction. Multiple impairments
that combine to substantially limit one or more of an individual's
major life activities also constitute a disability. Nonetheless, not
every impairment will constitute a ``disability'' within the meaning
of this section. See 2008 Senate Statement of Managers at 4 (``We
reaffirm that not every individual with a physical or mental
impairment is covered by the first prong of the definition of
disability in the ADA.'')
Section 1630.2(j)(1)(iii): Substantial Limitation Should Not Be Primary
Object of Attention; Extensive Analysis Not Needed
Section 1630.2(j)(1)(iii) states: ``The primary object of
attention in cases brought under the ADA should be whether covered
entities have complied with their obligations, not whether an
individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment
`substantially limits' a major life activity should not demand
extensive analysis.''
[[Page 17009]]
Congress retained the term ``substantially limits'' in part
because it was concerned that adoption of a new phrase--and the
resulting need for further judicial scrutiny and construction--would
not ``help move the focus from the threshold issue of disability to
the primary issue of discrimination.'' 2008 Senate Statement of
Managers at 7.
This was the primary problem Congress sought to solve in
enacting the ADAAA. It recognized that ``clearing the initial
[disability] threshold is critical, as individuals who are excluded
from the definition `never have the opportunity to have their
condition evaluated in light of medical evidence and a determination
made as to whether they [are] `otherwise quali fied.' ' '' 2008
House Judiciary Committee Report at 7; see also id. (expressing
concern that ``[a]n individual who does not qualify as disabled does
not meet th[e] threshold question of coverage in the protected class
and is therefore not permitted to attempt to prove his or her claim
of discriminatory treatment''); 2008 Senate Statement of Managers at
4 (criticizing pre-ADAAA lower court cases that ``too often turned
solely on the question of whether the plaintiff is an individual
with a disability rather than the merits of discrimination claims,
such as whether adverse decisions were impermissibly made by the
employer on the basis of disability, reasonable accommodations were
denied, or qualification standards were unlawfully
discriminatory'').
Accordingly, the Amendments Act and the amended regulations make
plain that the emphasis in ADA cases now should be squarely on the
merits and not on the initial coverage question. The revised
regulations therefore provide 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 and deletes the language to which Congress objected. The
Commission believes that this provides a useful framework in which
to analyze whether an impairment satisfies the definition of
disability. Further, this framework better reflects Congress's
expressed intent in the ADA Amendments Act that the definition of
the term ``disability'' shall be construed broadly, and is
consistent with statements in the Amendments Act's legislative
history. See 2008 Senate Statement of Managers at 7 (stating that
``adopting a new, undefined term'' and the ``resulting need for
further judicial scrutiny and construction will not help move the
focus from the threshold issue of disability to the primary issue of
discrimination,'' and finding that `` `substantially limits' as
construed consistently with the findings and purposes of this
legislation establishes an appropriate functionality test of
determining whether an individual has a disability'' and that
``using the correct standard--one that is lower than the strict or
demanding standard created by the Supreme Court in Toyota--will make
the disability determination an appropriate threshold issue but not
an onerous burden for those seeking accommodations or
modifications'').
Consequently, this rule of construction makes clear that the
question of whether an impairment substantially limits a major life
activity should not demand extensive analysis. As the legislative
history explains, ``[w]e expect that courts interpreting [the ADA]
will not demand such an extensive analysis over whether a person's
physical or mental impairment constitutes a disability.'' Hoyer-
Sensenbrenner Congressional Record Statement at H8295; see id.
(``Our goal throughout this process has been to simplify that
analysis.'')
Section 1630.2(j)(1)(iv): Individualized Assessment Required, But With
Lower Standard Than Previously Applied
Section 1630.2(j)(1)(iv) states: ``The determination of whether
an impairment substantially limits a major life activity requires an
individualized assessment. However, in making this assessment, the
term `substantially limits' shall be interpreted and applied to
require a degree of functional limitation that is lower than the
standard for `substantially limits' applied prior to the ADAAA.''
By retaining the essential elements of the definition of
disability including the key term ``substantially limits,'' Congress
reaffirmed that not every individual with a physical or mental
impairment is covered by the first prong of the definition of
disability in the ADA. See 2008 Senate Statement of Managers at 4.
To be covered under the first prong of the definition, an individual
must establish that an impairment substantially limits a major life
activity. That has not changed--nor will the necessity of making
this determination on an individual basis. Id. However, what the
ADAAA changed is the standard required for making this
determination. Id. at 4-5.
The Amendments Act and the EEOC's regulations explicitly reject
the standard enunciated by the Supreme Court in Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184 (2002), and applied in the lower
courts in numerous cases. See ADAAA Section 2(b)(4). That previous
standard created ``an inappropriately high level of limitation
necessary to obtain coverage under the ADA.'' Id. at Section
2(b)(5). The Amendments Act and the EEOC's regulations reject the
notion that ``substantially limits'' should be interpreted strictly
to create a demanding standard for qualifying as disabled. Id. at
Section 2(b)(4). Instead, the ADAAA and these regulations establish
a degree of functional limitation required for an impairment to
constitute a disability that is consistent with what Congress
originally intended. 2008 Senate Statement of Managers at 7. This
will make the disability determination an appropriate threshold
issue but not an onerous burden for those seeking to prove
discrimination under the ADA. Id.
Section 1630.2(j)(1)(v): Scientific, Medical, or Statistical Analysis
Not Required, But Permissible When Appropriate
Section 1630.2(j)(1)(v) states: ``The comparison of an
individual's performance of a major life activity to the performance
of the same major life activity by most people in the general
population usually will not require scientific, medical, or
statistical analysis. Nothing in this paragraph is intended,
however, to prohibit the presentation of scientific, medical, or
statistical evidence to make such a comparison where appropriate.''
The term ``average person in the general population,'' as the
basis of comparison for determining whether an individual's
impairment substantially limits a major life activity, has been
changed to ``most people in the general population.'' This revision
is not a substantive change in the concept, but rather is intended
to conform the language to the simpler and more straightforward
terminology used in the legislative history to the Amendments Act.
The comparison between the individual and ``most people'' need not
be exacting, and usually will not require scientific, medical, or
statistical analysis. Nothing in this subparagraph is intended,
however, to prohibit the presentation of scientific, medical, or
statistical evidence to make such a comparison where appropriate.
The comparison to most people in the general population
continues to mean a comparison to other people in the general
population, not a comparison to those similarly situated. For
example, the ability of an individual with an amputated limb to
perform a major life activity is compared to other people in the
general population, not to other amputees. This does not mean that
disability cannot be shown where an impairment, such as a learning
disability, is clinically diagnosed based in part on a disparity
between an individual's aptitude and that individual's actual versus
expected achievement, taking into account the person's chronological
age, measured intelligence, and age-appropriate education.
Individuals diagnosed with dyslexia or other learning disabilities
will typically be substantially limited in performing activities
such as learning, reading, and thinking when compared to most people
in the general population, particularly when the ameliorative
effects of mitigating measures, including therapies, learned
behavioral or adaptive neurological modifications, assistive devices
(e.g., audio recordings, screen reading devices, voice activated
software), studying longer, or receiving more time to take a test,
are disregarded as required under the ADA Amendments Act.
Section 1630.2(j)(1)(vi): Mitigating Measures
Section 1630.2(j)(1)(vi) states: ``The determination of whether
an impairment substantially limits a major life activity shall be
made without regard to the ameliorative effects of mitigating
measures. However, the ameliorative effects of ordinary eyeglasses
or contact lenses shall be considered in determining whether an
impairment substantially limits a major life activity.''
The ameliorative effects of mitigating measures shall not be
considered in determining whether an impairment substantially limits
a major life activity. Thus, ``[w]ith the exception of ordinary
eyeglasses and contact lenses, impairments must be examined in their
unmitigated state.'' See 2008 Senate Statement of Managers at 5.
This provision in the ADAAA and the EEOC's regulations ``is
intended to eliminate the catch-22 that exist[ed] * * * where
individuals who are subjected to discrimination on the basis of
their disabilities [we]re frequently unable to
[[Page 17010]]
invoke the ADA's protections because they [we]re not considered
people with disabilities when the effects of their medication,
medical supplies, behavioral adaptations, or other interventions
[we]re considered.'' Joint Hoyer-Sensenbrenner Statement at 2; see
also 2008 Senate Statement of Managers at 9 (``This provision is
intended to eliminate the situation created under [prior] law in
which impairments that are mitigated [did] not constitute
disabilities but [were the basis for discrimination].''). To the
extent cases pre-dating the 2008 Amendments Act reasoned otherwise,
they are contrary to the law as amended. See 2008 House Judiciary
Committee Report at 9 & nn.25, 20-21 (citing, e.g., McClure v.
General Motors Corp., 75 F. App'x 983 (5th Cir. 2003) (court held
that individual with muscular dystrophy who, with the mitigating
measure of ``adapting'' how he performed manual tasks, had
successfully learned to live and work with his disability was
therefore not an individual with a disability); Orr v. Wal-Mart
Stores, Inc., 297 F.3d 720 (8th Cir. 2002) (court held that Sutton
v. United Air Lines, Inc., 527 U.S. 471 (1999), required
consideration of the ameliorative effects of plaintiff's careful
regimen of medicine, exercise and diet, and declined to consider
impact of uncontrolled diabetes on plaintiff's ability to see,
speak, read, and walk); Gonzales v. National Bd. of Med. Examiners,
225 F.3d 620 (6th Cir. 2000) (where the court found that an
individual with a diagnosed learning disability was not
substantially limited after considering the impact of self-
accommodations that allowed him to read and achieve academic
success); McMullin v. Ashcroft, 337 F. Supp. 2d 1281 (D. Wyo. 2004)
(individual fired because of clinical depression not protected
because of the successful management of the condition with
medication for fifteen years); Eckhaus v. Consol. Rail Corp., 2003
WL 23205042 (D.N.J. Dec. 24, 2003) (individual fired because of a
hearing impairment was not protected because a hearing aid helped
correct that impairment); Todd v. Academy Corp., 57 F. Supp. 2d 448,
452 (S.D. Tex. 1999) (court held that because medication reduced the
frequency and intensity of plaintiff's seizures, he was not
disabled)).
An individual who, because of the use of a mitigating measure,
has experienced no limitations, or only minor limitations, related
to the impairment may still be an individual with a disability,
where there is evidence that in the absence of an effective
mitigating measure the individual's impairment would be
substantially limiting. For example, someone who began taking
medication for hypertension before experiencing substantial
limitations related to the impairment would still be an individual
with a disability if, without the medication, he or she would now be
substantially limited in functions of the cardiovascular or
circulatory system.
Evidence showing that an impairment would be substantially
limiting in the absence of the ameliorative effects of mitigating
measures could include evidence of limitations that a person
experienced prior to using a mitigating measure, evidence concerning
the expected course of a particular disorder absent mitigating
measures, or readily available and reliable information of other
types. However, we expect that consistent with the Amendments Act's
command (and the related rules of construction in the regulations)
that the definition of disability ``should not demand extensive
analysis,'' covered entities and courts will in many instances be
able to conclude that a substantial limitation has been shown
without resort to such evidence.
The Amendments Act provides an ``illustrative but non-
comprehensive list of the types of mitigating measures that are not
to be considered.'' See 2008 Senate Statement of Managers at 9.
Section 1630.2(j)(5) of the regulations includes all of those
mitigating measures listed in the ADA Amendments Act's illustrative
list of mitigating measures, including reasonable accommodations (as
applied under title I) or ``auxiliary aids or services'' (as defined
by 42 U.S.C. 12103(1) and applied under titles II and III).
Since it would be impossible to guarantee comprehensiveness in a
finite list, the list of examples of mitigating measures provided in
the ADA and the regulations is non-exhaustive. See 2008 House
Judiciary Committee Report at 20. The absence of any particular
mitigating measure from the list in the regulations should not
convey a negative implication as to whether the measure is a
mitigating measure under the ADA. See 2008 Senate Statement of
Managers at 9.
For example, the fact that mitigating measures include
``reasonable accommodations'' generally makes it unnecessary to
mention specific kinds of accommodations. Nevertheless, the use of a
service animal, job coach, or personal assistant on the job would
certainly be considered types of mitigating measures, as would the
use of any device that could be considered assistive technology, and
whether individuals who use these measures have disabilities would
be determined without reference to their ameliorative effects. See
2008 House Judiciary Committee Report at 20; 2008 House Educ. &
Labor Rep. at 15. Similarly, adaptive strategies that might
mitigate, or even allow an individual to otherwise avoid performing
particular major life activities, are mitigating measures and also
would not be considered in determining whether an impairment is
substantially limiting. Id.
The determination of whether or not an individual's impairment
substantially limits a major life activity is unaffected by whether
the individual chooses to forgo mitigating measures. For individuals
who do not use a mitigating measure (including for example
medication or reasonable accommodation that could alleviate the
effects of an impairment), the availability of such measures has no
bearing on whether the impairment substantially limits a major life
activity. The limitations posed by the impairment on the individual
and any negative (non-ameliorative) effects of mitigating measures
used determine whether an impairment is substantially limiting. The
origin of the impairment, whether its effects can be mitigated, and
any ameliorative effects of mitigating measures in fact used may not
be considered in determining if the impairment is substantially
limiting. However, the use or non-use of mitigating measures, and
any consequences thereof, including any ameliorative and non-
ameliorative effects, may be relevant in determining whether the
individual is qualified or poses a direct threat to safety.
The ADA Amendments Act and the regulations state that ``ordinary
eyeglasses or contact lenses'' shall be considered in determining
whether someone has a disability. This is an exception to the rule
that the ameliorative effects of mitigating measures are not to be
taken into account. ``The rationale behind this exclusion is that
the use of ordinary eyeglasses or contact lenses, without more, is
not significant enough to warrant protection under the ADA.'' Joint
Hoyer-Sensenbrenner Statement at 2. Nevertheless, as discussed in
greater detail below at Sec. 1630.10(b), if an applicant or
employee is faced with a qualification standard that requires
uncorrected vision (as the plaintiffs in the Sutton case were), and
the applicant or employee who is adversely affected by the standard
brings a challenge under the ADA, an employer will be required to
demonstrate that the qualification standard is job related and
consistent with business necessity. 2008 Senate Statement of
Managers at 9.
The ADAAA and the EEOC's regulations both define the term
``ordinary eyeglasses or contact lenses'' as lenses that are
``intended to fully correct visual acuity or eliminate refractive
error.'' So, if an individual with severe myopia uses eyeglasses or
contact lenses that are intended to fully correct visual acuity or
eliminate refractive error, they are ordinary eyeglasses or contact
lenses, and therefore any inquiry into whether such individual is
substantially limited in seeing or reading would be based on how the
individual sees or reads with the benefit of the eyeglasses or
contact lenses. Likewise, if the only visual loss an individual
experiences affects the ability to see well enough to read, and the
individual's ordinary reading glasses are intended to completely
correct for this visual loss, the ameliorative effects of using the
reading glasses must be considered in determining whether the
individual is substantially limited in seeing. Additionally,
eyeglasses or contact lenses that are the wrong prescription or an
outdated prescription may nevertheless be ``ordinary'' eyeglasses or
contact lenses, if a proper prescription would fully correct visual
acuity or eliminate refractive error.
Both the statute and the regulations distinguish ``ordinary
eyeglasses or contact lenses'' from ``low vision devices,'' which
function by magnifying, enhancing, or otherwise augmenting a visual
image, and which are not considered when determining whether someone
has a disability. The regulations do not establish a specific level
of visual acuity (e.g., 20/20) as the basis for determining whether
eyeglasses or contact lenses should be considered ``ordinary''
eyeglasses or contact lenses. Whether lenses fully correct visual
acuity or eliminate refractive error is best determined on a case-
by-case basis, in light of current and objective medical evidence.
Moreover, someone who uses ordinary eyeglasses or contact lenses is
not automatically considered to be outside
[[Page 17011]]
the ADA's protection. Such an individual may demonstrate that, even
with the use of ordinary eyeglasses or contact lenses, his vision is
still substantially limited when compared to most people.
Section 1630.2(j)(1)(vii): Impairments That Are Episodic or in
Remission
Section 1630.2(j)(1)(vii) states: ``An impairment that is
episodic or in remission is a disability if it would substantially
limit a major life activity when active.''
An impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity in its active
state. ``This provision is intended to reject the reasoning of court
decisions concluding that certain individuals with certain
conditions--such as epilepsy or post traumatic stress disorder--were
not protected by the ADA because their conditions were episodic or
intermittent.'' Joint Hoyer-Sensenbrenner Statement at 2-3. The
legislative history provides: ``This * * * rule of construction thus
rejects the reasoning of the courts in cases like Todd v. Academy
Corp. [57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] where the court
found that the plaintiff's epilepsy, which resulted in short
seizures during which the plaintiff was unable to speak and
experienced tremors, was not sufficiently limiting, at least in part
because those seizures occurred episodically. It similarly rejects
the results reached in cases [such as Pimental v. Dartmouth-Hitchock
Clinic, 236 F. Supp. 2d 177, 182-83 (D.N.H. 2002)] where the courts
have discounted the impact of an impairment [such as cancer] that
may be in remission as too short-lived to be substantially limiting.
It is thus expected that individuals with impairments that are
episodic or in remission (e.g., epilepsy, multiple sclerosis,
cancer) will be able to establish coverage if, when active, the
impairment or the manner in which it manifests (e.g., seizures)
substantially limits a major life activity.'' 2008 House Judiciary
Committee Report at 19-20.
Other examples of impairments that may be episodic include, but
are not limited to, hypertension, diabetes, asthma, major depressive
disorder, bipolar disorder, and schizophrenia. See 2008 House
Judiciary Committee Report at 19-20. The fact that the periods
during which an episodic impairment is active and substantially
limits a major life activity may be brief or occur infrequently is
no longer relevant to determining whether the impairment
substantially limits a major life activity. For example, a person
with post-traumatic stress disorder who experiences intermittent
flashbacks to traumatic events is substantially limited in brain
function and thinking.
Section 1630.2(j)(1)(viii): Substantial Limitation in Only One Major
Life Activity Required
Section 1630.2(j)(1)(viii) states: ``An impairment that
substantially limits one major life activity need not substantially
limit other major life activities in order to be considered a
substantially limiting impairment.''
The ADAAA explicitly states that an impairment need only
substantially limit one major life activity to be considered a
disability under the ADA. See ADAAA Section 4(a); 42 U.S.C.
12102(4)(C). ``This responds to and corrects those courts that have
required individuals to show that an impairment substantially limits
more than one life activity.'' 2008 Senate Statement of Managers at
8. In addition, this rule of construction is ``intended to clarify
that the ability to perform one or more particular tasks within a
broad category of activities does not preclude coverage under the
ADA.'' Id. To the extent cases pre-dating the applicability of the
2008 Amendments Act reasoned otherwise, they are contrary to the law
as amended. Id. (citing Holt v. Grand Lake Mental Health Ctr., Inc.,
443 F. 3d 762 (10th Cir. 2006) (holding an individual with cerebral
palsy who could not independently perform certain specified manual
tasks was not substantially limited in her ability to perform a
``broad range'' of manual tasks)); see also 2008 House Judiciary
Committee Report at 19 & n.52 (this legislatively corrects court
decisions that, with regard to the major life activity of performing
manual tasks, ``have offset substantial limitation in the
performance of some tasks with the ability to perform others''
(citing Holt)).
For example, an individual with diabetes is substantially
limited in endocrine function and thus an individual with a
disability under the first prong of the definition. He need not also
show that he is substantially limited in eating to qualify for
coverage under the first prong. An individual whose normal cell
growth is substantially limited due to lung cancer need not also
show that she is substantially limited in breathing or respiratory
function. And an individual with HIV infection is substantially
limited in the function of the immune system, and therefore is an
individual with a disability without regard to whether his or her
HIV infection substantially limits him or her in reproduction.
In addition, an individual whose impairment substantially limits
a major life activity need not additionally demonstrate a resulting
limitation in the ability to perform activities of central
importance to daily life in order to be considered an individual
with a disability under Sec. 1630.2(g)(1)(i) or Sec.
1630.2(g)(1)(ii), as cases relying on the Supreme Court's decision
in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002),
had held prior to the ADA Amendments Act.
Thus, for example, someone with an impairment resulting in a 20-
pound lifting restriction that lasts or is expected to last for
several months is substantially limited in the major life activity
of lifting, and need not also show that he is unable to perform
activities of daily living that require lifting in order to be
considered substantially limited in lifting. Similarly, someone with
monocular vision whose depth perception or field of vision would be
substantially limited, with or without any compensatory strategies
the individual may have developed, need not also show that he is
unable to perform activities of central importance to daily life
that require seeing in order to be substantially limited in seeing.
Section 1630.2(j)(1)(ix): Effects of an Impairment Lasting Fewer Than
Six Months Can Be Substantially Limiting
Section 1630.2(j)(1)(ix) states: ``The six-month `transitory'
part of the `transitory and minor' exception to `regarded as'
coverage in Sec. 1630.2(l) does not apply to the definition of
`disability' under Sec. 1630.2(g)(1)(i) or Sec. 1630.2(g)(1)(ii).
The effects of an impairment lasting or expected to last fewer than
six months can be substantially limiting within the meaning of this
section.''
The regulations include a clear statement that the definition of
an impairment as transitory, that is, ``lasting or expected to last
for six months or less,'' only applies to the ``regarded as''
(third) prong of the definition of ``disability'' as part of the
``transitory and minor'' defense to ``regarded as'' coverage. It
does not apply to the first or second prong of the definition of
disability. See Joint Hoyer-Sensenbrenner Statement at 3 (``[T]here
is no need for the transitory and minor exception under the first
two prongs because it is clear from the statute and the legislative
history that a person can only bring a claim if the impairment
substantially limits one or more major life activities or the
individual has a record of an impairment that substantially limits
one or more major life activities.'').
Therefore, an impairment does not have to last for more than six
months in order to be considered substantially limiting under the
first or the second prong of the definition of disability. For
example, as noted above, if an individual has a back impairment that
results in a 20-pound lifting restriction that lasts for several
months, he is substantially limited in the major life activity of
lifting, and therefore covered under the first prong of the
definition of disability. At the same time, ``[t]he duration of an
impairment is one factor that is relevant in determining whether the
impairment substantially limits a major life activity. Impairments
that last only for a short period of time are typically not covered,
although they may be covered if sufficiently severe.'' Joint Hoyer-
Sensenbrenner Statement at 5.
Section 1630.2(j)(3) Predictable Assessments
As the regulations point out, disability is determined based on
an individualized assessment. There is no ``per se'' disability.
However, as recognized in the regulations, the individualized
assessment of some kinds of impairments will virtually always result
in a determination of disability. The inherent nature of these types
of medical conditions will in virtually all cases give rise to a
substantial limitation of a major life activity. Cf. Heiko v.
Columbo Savings Bank, F.S.B., 434 F.3d 249, 256 (4th Cir. 2006)
(stating, even pre-ADAAA, that ``certain impairments are by their
very nature substantially limiting: the major life activity of
seeing, for example, is always substantially limited by
blindness''). Therefore, with respect to these types of impairments,
the necessary individualized assessment should be particularly
simple and straightforward.
This result is the consequence of the combined effect of the
statutory changes to the definition of disability contained in the
[[Page 17012]]
Amendments Act and flows from application of the rules of
construction set forth in Sec. Sec. 1630.2(j)(1)(i)-(ix) (including
the lower standard for ``substantially limits''; the rule that major
life activities include major bodily functions; the principle that
impairments that are episodic or in remission are disabilities if
they would be substantially limiting when active; and the
requirement that the ameliorative effects of mitigating measures
(other than ordinary eyeglasses or contact lenses) must be
disregarded in assessing whether an individual has a disability).
The regulations at Sec. 1630.2(j)(3)(iii) provide examples of
the types of impairments that should easily be found to
substantially limit a major life activity. The legislative history
states that Congress modeled the ADA definition of disability on the
definition contained in the Rehabilitation Act, and said it wished
to return courts to the way they had construed that definition. See
2008 House Judiciary Committee Report at 6. Describing this goal,
the legislative history states that courts had interpreted the
Rehabilitation Act definition ``broadly to include persons with a
wide range of physical and mental impairments such as epilepsy,
diabetes, multiple sclerosis, and intellectual and developmental
disabilities * * * even where a mitigating measure--like medication
or a hearing aid--might lessen their impact on the individual.''
Id.; see also id. at 9 (referring to individuals with disabilities
that had been covered under the Rehabilitation Act and that Congress
intended to include under the ADA--``people with serious health
conditions like epilepsy, diabetes, cancer, cerebral palsy, multiple
sclerosis, intellectual and developmental disabilities''); id. at
n.6 (citing cases also finding that cerebral palsy, hearing
impairments, mental retardation, heart disease, and vision in only
one eye were disabilities under the Rehabilitation Act); id. at 10
(citing testimony from Rep. Steny H. Hoyer, one of the original lead
sponsors of the ADA in 1990, stating that ``we could not have
fathomed that people with diabetes, epilepsy, heart conditions,
cancer, mental illnesses and other disabilities would have their ADA
claims denied because they would be considered too functional to
meet the definition of disability''); 2008 Senate Statement of
Managers at 3 (explaining that ``we [we]re faced with a situation in
which physical or mental impairments that would previously [under
the Rehabilitation Act] have been found to constitute disabilities
[we]re not considered disabilities'' and citing individuals with
impairments such as amputation, intellectual disabilities, epilepsy,
multiple sclerosis, diabetes, muscular dystrophy, and cancer as
examples).
Of course, the impairments listed in subparagraph
1630.2(j)(3)(iii) may substantially limit a variety of other major
life activities in addition to those listed in the regulation. For
example, mobility impairments requiring the use of a wheelchair
substantially limit the major life activity of walking. Diabetes may
substantially limit major life activities such as eating, sleeping,
and thinking. Major depressive disorder may substantially limit
major life activities such as thinking, concentrating, sleeping, and
interacting with others. Multiple sclerosis may substantially limit
major life activities such as walking, bending, and lifting.
By using the term ``brain function'' to describe the system
affected by various mental impairments, the Commission is expressing
no view on the debate concerning whether mental illnesses are caused
by environmental or biological factors, but rather intends the term
to capture functions such as the ability of the brain to regulate
thought processes and emotions.
Section 1630.2(j)(4) Condition, Manner, or Duration
The regulations provide that facts such as the ``condition,
manner, or duration'' of an individual's performance of a major life
activity may be useful in determining whether an impairment results
in a substantial limitation. In the legislative history of the
ADAAA, Congress reiterated what it had said at the time of the
original ADA: ``A person is considered an individual with a
disability for purposes of the first prong of the definition when
[one or more of] the individual's important life activities are
restricted as to the conditions, manner, or duration under which
they can be performed in comparison to most people.'' 2008 Senate
Statement of Managers at 7 (citing 1989 Senate Report at 23).
According to Congress: ``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. We reiterate that using the correct standard--one that
is lower than the strict or demanding standard created by the
Supreme Court in Toyota--will make the disability determination an
appropriate threshold issue but not an onerous burden for those
seeking accommodations * * *. At the same time, plaintiffs should
not be constrained from offering evidence needed to establish that
their impairment is substantially limiting.'' 2008 Senate Statement
of Managers at 7.
Consistent with the legislative history, an impairment may
substantially limit the ``condition'' or ``manner'' under which a
major life activity can be performed in a number of ways. For
example, the condition or manner under which a major life activity
can be performed may refer to the way an individual performs a major
life activity. Thus, the condition or manner under which a person
with an amputated hand performs manual tasks will likely be more
cumbersome than the way that someone with two hands would perform
the same tasks.
Condition or manner may also describe how performance of a major
life activity affects the individual with an impairment. For
example, an individual whose impairment causes pain or fatigue that
most people would not experience when performing that major life
activity may be substantially limited. Thus, the condition or manner
under which someone with coronary artery disease performs the major
life activity of walking would be substantially limiting if the
individual experiences shortness of breath and fatigue when walking
distances that most people could walk without experiencing such
effects. Similarly, condition or manner may refer to the extent to
which a major life activity, including a major bodily function, can
be performed. For example, the condition or manner under which a
major bodily function can be performed may be substantially limited
when the impairment ``causes the operation [of the bodily function]
to over-produce or under-produce in some harmful fashion.'' See 2008
House Judiciary Committee Report at 17.
``Duration'' refers to the length of time an individual can
perform a major life activity or the length of time it takes an
individual to perform a major life activity, as compared to most
people in the general population. For example, a person whose back
or leg impairment precludes him or her from standing for more than
two hours without significant pain would be substantially limited in
standing, since most people can stand for more than two hours
without significant pain. However, a person who can walk for ten
miles continuously is not substantially limited in walking merely
because on the eleventh mile, he or she begins to experience pain
because most people would not be able to walk eleven miles without
experiencing some discomfort. See 2008 Senate Statement of Managers
at 7 (citing 1989 Senate Report at 23).
The regulations provide that in assessing substantial limitation
and considering facts such as condition, manner, or duration, the
non-ameliorative effects of mitigating measures may be considered.
Such ``non-ameliorative effects'' could include negative side
effects of medicine, burdens associated with following a particular
treatment regimen, and complications that arise from surgery, among
others. Of course, in many instances, it will not be necessary to
assess the negative impact of a mitigating measure in determining
that a particular impairment substantially limits a major life
activity. For example, someone with end-stage renal disease is
substantially limited in kidney function, and it thus is not
necessary to consider the burdens that dialysis treatment imposes.
Condition, manner, or duration may also suggest the amount of
time or effort an individual has to expend when performing a major
life activity because of the effects of an impairment, even if the
individual is able to achieve the same or similar result as someone
without the impairment. For this reason, the regulations include
language which says that the outcome an individual with a disability
is able to achieve is not determinative of whether he or she is
substantially limited in a major life activity.
Thus, someone with a learning disability may achieve a high
level of academic success, but may nevertheless be substantially
limited in the major life activity of learning because of the
additional time or effort he or she must spend to read, write, or
learn compared to most people in the general population. As Congress
emphasized in passing the Amendments Act, ``[w]hen considering the
condition, manner, or duration in which an individual with a
specific learning disability performs a major life activity, it is
critical to reject the assumption that an individual who has
performed well academically cannot be
[[Page 17013]]
substantially limited in activities such as learning, reading,
writing, thinking, or speaking.'' 2008 Senate Statement of Managers
at 8. Congress noted that: ``In particular, some courts have found
that students who have reached a high level of academic achievement
are not to be considered individuals with disabilities under the
ADA, as such individuals may have difficulty demonstrating
substantial limitation in the major life activities of learning or
reading relative to `most people.' When considering the condition,
manner or duration in which an individual with a specific learning
disability performs a major life activity, it is critical to reject
the assumption that an individual who performs well academically or
otherwise cannot be substantially limited in activities such as
learning, reading, writing, thinking, or speaking. As such, the
Committee rejects the findings in Price v. National Board of Medical
Examiners, Gonzales v. National Board of Medical Examiners, and Wong
v. Regents of University of California. The Committee believes that
the comparison of individuals with specific learning disabilities to
`most people' is not problematic unto itself, but requires a careful
analysis of the method and manner in which an individual's
impairment limits a major life activity. For the majority of the
population, the basic mechanics of reading and writing do not pose
extraordinary lifelong challenges; rather, recognizing and forming
letters and words are effortless, unconscious, automatic processes.
Because specific learning disabilities are neurologically-based
impairments, the process of reading for an individual with a reading
disability (e.g. dyslexia) is word-by-word, and otherwise
cumbersome, painful, deliberate and slow--throughout life. The
Committee expects that individuals with specific learning
disabilities that substantially limit a major life activity will be
better protected under the amended Act.'' 2008 House Educ. & Labor
Rep. at 10-11.
It bears emphasizing that while it may be useful in appropriate
cases to consider facts such as condition, manner, or duration, it
is always necessary to consider and apply the rules of construction
in Sec. 1630.2(j)(1)(i)-(ix) that set forth the elements of broad
coverage enacted by Congress. 2008 Senate Statement of Managers at
6. Accordingly, while the Commission's regulations retain the
concept of ``condition, manner, or duration,'' they no longer
include the additional list of ``substantial limitation'' factors
contained in the previous version of the regulations (i.e., the
nature and severity of the impairment, duration or expected duration
of the impairment, and actual or expected permanent or long-term
impact of or resulting from the impairment).
Finally, ``condition, manner, or duration'' are not intended to
be used as a rigid three-part standard that must be met to establish
a substantial limitation. ``Condition, manner, or duration'' are not
required ``factors'' that must be considered as a talismanic test.
Rather, in referring to ``condition, manner, or duration,'' the
regulations make clear that these are merely the types of facts that
may be considered in appropriate cases. To the extent such aspects
of limitation may be useful or relevant to show a substantial
limitation in a particular fact pattern, some or all of them (and
related facts) may be considered, but evidence relating to each of
these facts may not be necessary to establish coverage.
At the same time, individuals seeking coverage under the first
or second prong of the definition of disability should not be
constrained from offering evidence needed to establish that their
impairment is substantially limiting. See 2008 Senate Statement of
Managers at 7. Of course, covered entities may defeat a showing of
``substantial limitation'' by refuting whatever evidence the
individual seeking coverage has offered, or by offering evidence
that shows an impairment does not impose a substantial limitation on
a major life activity. However, a showing of substantial limitation
is not defeated by facts related to ``condition, manner, or
duration'' that are not pertinent to the substantial limitation the
individual has proffered.
Sections 1630.2(j)(5) and (6) Examples of Mitigating Measures; Ordinary
Eyeglasses or Contact Lenses
These provisions of the regulations provide numerous examples of
mitigating measures and the definition of ``ordinary eyeglasses or
contact lenses.'' These definitions have been more fully discussed
in the portions of this interpretive guidance concerning the rules
of construction in Sec. 1630.2(j)(1).
Substantially Limited in Working
The Commission has removed from the text of the regulations a
discussion of the major life activity of working. This is consistent
with the fact that no other major life activity receives special
attention in the regulation, and with the fact that, in light of the
expanded definition of disability established by the Amendments Act,
this major life activity will be used in only very targeted
situations.
In most instances, an individual with a disability will be able
to establish coverage by showing substantial limitation of a major
life activity other than working; impairments that substantially
limit a person's ability to work usually substantially limit one or
more other major life activities. This will be particularly true in
light of the changes made by the ADA Amendments Act. See, e.g.,
Corley v. Dep't of Veterans Affairs ex rel Principi, 218 F. App'x.
727, 738 (10th Cir. 2007) (employee with seizure disorder was not
substantially limited in working because he was not foreclosed from
jobs involving driving, operating machinery, childcare, military
service, and other jobs; employee would now be substantially limited
in neurological function); Olds v. United Parcel Serv., Inc., 127 F.
App'x. 779, 782 (6th Cir. 2005) (employee with bone marrow cancer
was not substantially limited in working due to lifting restrictions
caused by his cancer; employee would now be substantially limited in
normal cell growth); Williams v. Philadelphia Hous. Auth. Police
Dep't, 380 F.3d 751, 763-64 (3d Cir. 2004) (issue of material fact
concerning whether police officer's major depression substantially
limited him in performing a class of jobs due to restrictions on his
ability to carry a firearm; officer would now be substantially
limited in brain function).\2\
---------------------------------------------------------------------------
\2\ In addition, many cases previously analyzed in terms of
whether the plaintiff was ``substantially limited in working'' will
now be analyzed under the ``regarded as'' prong of the definition of
disability as revised by the Amendments Act. See, e.g., Cannon v.
Levi Strauss & Co., 29 F. App'x. 331 (6th Cir. 2002) (factory worker
laid off due to her carpal tunnel syndrome not regarded as
substantially limited in working because her job of sewing machine
operator was not a ``broad class of jobs''; she would now be
protected under the third prong because she was fired because of her
impairment, carpal tunnel syndrome); Bridges v. City of Bossier, 92
F.3d 329 (5th Cir. 1996) (applicant not hired for firefighting job
because of his mild hemophilia not regarded as substantially limited
in working; applicant would now be protected under the third prong
because he was not hired because of his impairment, hemophilia).
---------------------------------------------------------------------------
In the rare cases where an individual has a need to demonstrate
that an impairment substantially limits him or her in working, the
individual can do so by showing that the impairment substantially
limits his or her ability to perform a class of jobs or broad range
of jobs in various classes as compared to most people having
comparable training, skills, and abilities. In keeping with the
findings and purposes of the Amendments Act, the determination of
coverage under the law should not require extensive and elaborate
assessment, and the EEOC and the courts are to apply a lower
standard in determining when an impairment substantially limits a
major life activity, including the major life activity of working,
than they applied prior to the Amendments Act. The Commission
believes that the courts, in applying an overly strict standard with
regard to ``substantially limits'' generally, have reached
conclusions with regard to what is necessary to demonstrate a
substantial limitation in the major life activity of working that
would be inconsistent with the changes now made by the Amendments
Act. Accordingly, as used in this section the terms ``class of
jobs'' and ``broad range of jobs in various classes'' will be
applied in a more straightforward and simple manner than they were
applied by the courts prior to the Amendments Act.\3\
---------------------------------------------------------------------------
\3\ In analyzing working as a major life activity in the past,
some courts have imposed a complex and onerous standard that would
be inappropriate under the Amendments Act. See, e.g., Duncan v.
WMATA, 240 F.3d 1110, 1115 (DC Cir. 2001) (manual laborer whose back
injury prevented him from lifting more than 20 pounds was not
substantially limited in working because he did not present evidence
of the number and types of jobs available to him in the Washington
area; testimony concerning his inquiries and applications for truck
driving jobs that all required heavy lifting was insufficient);
Taylor v. Federal Express Corp., 429 F.3d 461, 463-64 (4th Cir.
2005) (employee's impairment did not substantially limit him in
working because, even though evidence showed that employee's injury
disqualified him from working in numerous jobs in his geographic
region, it also showed that he remained qualified for many other
jobs). Under the Amendments Act, the determination of whether a
person is substantially limited in working is more straightforward
and simple than it was prior to the Act.
---------------------------------------------------------------------------
Demonstrating a substantial limitation in performing the unique
aspects of a single specific job is not sufficient to establish that
[[Page 17014]]
a person is substantially limited in the major life activity of
working.
A class of jobs may be determined by reference to the nature of
the work that an individual is limited in performing (such as
commercial truck driving, assembly line jobs, food service jobs,
clerical jobs, or law enforcement jobs) or by reference to job-
related requirements that an individual is limited in meeting (for
example, jobs requiring repetitive bending, reaching, or manual
tasks, jobs requiring repetitive or heavy lifting, prolonged sitting
or standing, extensive walking, driving, or working under conditions
such as high temperatures or noise levels).
For example, if a person whose job requires heavy lifting
develops a disability that prevents him or her from lifting more
than fifty pounds and, consequently, from performing not only his or
her existing job but also other jobs that would similarly require
heavy lifting, that person would be substantially limited in working
because he or she is substantially limited in performing the class
of jobs that require heavy lifting.
Section 1630.2(k) Record of a Substantially Limiting Impairment
The second prong of the definition of ``disability'' provides
that an individual with a record of an impairment that substantially
limits or limited a major life activity is an individual with a
disability. The intent of this provision, in part, is to ensure that
people are not discriminated against because of a history of
disability. For example, the ``record of'' provision would protect
an individual who was treated for cancer ten years ago but who is
now deemed by a doctor to be free of cancer, from discrimination
based on that prior medical history. This provision also ensures
that individuals are not discriminated against because they have
been misclassified as disabled. For example, individuals
misclassified as having learning disabilities or intellectual
disabilities (formerly termed ``mental retardation'') are protected
from discrimination on the basis of that erroneous classification.
Senate Report at 23; House Labor Report at 52-53; House Judiciary
Report at 29; 2008 House Judiciary Report at 7-8 & n.14. Similarly,
an employee who in the past was misdiagnosed with bipolar disorder
and hospitalized as the result of a temporary reaction to medication
she was taking has a record of a substantially limiting impairment,
even though she did not actually have bipolar disorder.
This part of the definition is satisfied where evidence
establishes that an individual has had a substantially limiting
impairment. The impairment indicated in the record must be an
impairment that would substantially limit one or more of the
individual's major life activities. There are many types of records
that could potentially contain this information, including but not
limited to, education, medical, or employment records.
Such evidence that an individual has a past history of an
impairment that substantially limited a major life activity is all
that is necessary to establish coverage under the second prong. An
individual may have a ``record of'' a substantially limiting
impairment--and thus be protected under the ``record of'' prong of
the statute--even if a covered entity does not specifically know
about the relevant record. Of course, for the covered entity to be
liable for discrimination under title I of the ADA, the individual
with a ``record of'' a substantially limiting impairment must prove
that the covered entity discriminated on the basis of the record of
the disability.
The terms ``substantially limits'' and ``major life activity''
under the second prong of the definition of ``disability'' are to be
construed in accordance with the same principles applicable under
the ``actual disability'' prong, as set forth in Sec. 1630.2(j).
Individuals who are covered under the ``record of'' prong will
often be covered under the first prong of the definition of
disability as well. This is a consequence of the rule of
construction in the ADAAA and the regulations providing that an
individual with an impairment that is episodic or in remission can
be protected under the first prong if the impairment would be
substantially limiting when active. See 42 U.S.C. 12102(4)(D); Sec.
1630.2(j)(1)(vii). Thus, an individual who has cancer that is
currently in remission is an individual with a disability under the
``actual disability'' prong because he has an impairment that would
substantially limit normal cell growth when active. He is also
covered by the ``record of'' prong based on his history of having
had an impairment that substantially limited normal cell growth.
Finally, this section of the EEOC's regulations makes it clear
that an individual with a record of a disability is entitled to a
reasonable accommodation currently needed for limitations resulting
from or relating to the past substantially limiting impairment. This
conclusion, which has been the Commission's long-standing position,
is confirmed by language in the ADA Amendments Act stating that
individuals covered only under the ``regarded as'' prong of the
definition of disability are not entitled to reasonable
accommodation. See 42 U.S.C. 12201(h). By implication, this means
that individuals covered under the first or second prongs are
otherwise eligible for reasonable accommodations. See 2008 House
Judiciary Committee Report at 22 (``This makes clear that the duty
to accommodate . . . arises only when an individual establishes
coverage under the first or second prong of the definition.'').
Thus, as the regulations explain, an employee with an impairment
that previously substantially limited but no longer substantially
limits, a major life activity may need leave or a schedule change to
permit him or her to attend follow-up or ``monitoring'' appointments
from a health care provider.
Section 1630.2(l) Regarded as Substantially Limited in a Major Life
Activity
Coverage under the ``regarded as'' prong of the definition of
disability should not be difficult to establish. See 2008 House
Judiciary Committee Report at 17 (explaining that Congress never
expected or intended it would be a difficult standard to meet).
Under the third prong of the definition of disability, an individual
is ``regarded as having such an impairment'' if the individual is
subjected to an action prohibited by the ADA because of an actual or
perceived impairment that is not ``transitory and minor.''
This third prong of the definition of disability was originally
intended to express Congress's understanding that ``unfounded
concerns, mistaken beliefs, fears, myths, or prejudice about
disabilities are often just as disabling as actual impairments, and
[its] corresponding desire to prohibit discrimination founded on
such perceptions.'' 2008 Senate Statement of Managers at 9; 2008
House Judiciary Committee Report at 17 (same). In passing the
original ADA, Congress relied extensively on the reasoning of School
Board of Nassau County v. Arline \4\ ``that the negative reactions
of others are just as disabling as the actual impact of an
impairment.'' 2008 Senate Statement of Managers at 9. The ADAAA
reiterates Congress's reliance on the broad views enunciated in that
decision, and Congress ``believe[s] that courts should continue to
rely on this standard.'' Id.
---------------------------------------------------------------------------
\4\ 480 U.S. at 282-83.
---------------------------------------------------------------------------
Accordingly, the ADA Amendments Act broadened the application of
the ``regarded as'' prong of the definition of disability. 2008
Senate Statement of Managers at 9-10. In doing so, Congress rejected
court decisions that had required an individual to establish that a
covered entity perceived him or her to have an impairment that
substantially limited a major life activity. This provision is
designed to restore Congress's intent to allow individuals to
establish coverage under the ``regarded as'' prong by showing that
they were treated adversely because of an impairment, without having
to establish the covered entity's beliefs concerning the severity of
the impairment. Joint Hoyer-Sensenbrenner Statement at 3.
Thus it is not necessary, as it was prior to the ADA Amendments
Act, for an individual to demonstrate that a covered entity
perceived him as substantially limited in the ability to perform a
major life activity in order for the individual to establish that he
or she is covered under the ``regarded as'' prong. Nor is it
necessary to demonstrate that the impairment relied on by a covered
entity is (in the case of an actual impairment) or would be (in the
case of a perceived impairment) substantially limiting for an
individual to be ``regarded as having such an impairment.'' In
short, to qualify for coverage under the ``regarded as'' prong, an
individual is not subject to any functional test. See 2008 Senate
Statement of Managers at 13 (``The functional limitation imposed by
an impairment is irrelevant to the third `regarded as' prong.'');
2008 House Judiciary Committee Report at 17 (that is, ``the
individual is not required to show that the perceived impairment
limits performance of a major life activity''). The concepts of
``major life activities'' and ``substantial limitation'' simply are
not relevant in evaluating whether an individual is ``regarded as
having such an impairment.''
To illustrate how straightforward application of the ``regarded
as'' prong is, if an employer refused to hire an applicant because
of skin graft scars, the employer has regarded the applicant as an
individual with a disability. Similarly, if an employer
[[Page 17015]]
terminates an employee because he has cancer, the employer has
regarded the employee as an individual with a disability.
A ``prohibited action'' under the ``regarded as'' prong refers
to an action of the type that would be unlawful under the ADA (but
for any defenses to liability). Such prohibited actions include, but
are not limited to, refusal to hire, demotion, placement on
involuntary leave, termination, exclusion for failure to meet a
qualification standard, harassment, or denial of any other term,
condition, or privilege of employment.
Where an employer bases a prohibited employment action on an
actual or perceived impairment that is not ``transitory and minor,''
the employer regards the individual as disabled, whether or not
myths, fears, or stereotypes about disability motivated the
employer's decision. Establishing that an individual is ``regarded
as having such an impairment'' does not, by itself, establish
liability. Liability is established only if an individual meets the
burden of proving that the covered entity discriminated unlawfully
within the meaning of section 102 of the ADA, 42 U.S.C. 12112.
Whether a covered entity can ultimately establish a defense to
liability is an inquiry separate from, and follows after, a
determination that an individual was regarded as having a
disability. Thus, for example, an employer who terminates an
employee with angina from a manufacturing job that requires the
employee to work around machinery, believing that the employee will
pose a safety risk to himself or others if he were suddenly to lose
consciousness, has regarded the individual as disabled. Whether the
employer has a defense (e.g., that the employee posed a direct
threat to himself or coworkers) is a separate inquiry.
The fact that the ``regarded as'' prong requires proof of
causation in order to show that a person is covered does not mean
that proving a ``regarded as'' claim is complex. While a person must
show, for both coverage under the ``regarded as'' prong and for
ultimate liability, that he or she was subjected to a prohibited
action because of an actual or perceived impairment, this showing
need only be made once. Thus, evidence that a covered entity took a
prohibited action because of an impairment will establish coverage
and will be relevant in establishing liability, although liability
may ultimately turn on whether the covered entity can establish a
defense.
As prescribed in the ADA Amendments Act, the regulations provide
an exception to coverage under the ``regarded as'' prong where the
impairment on which a prohibited action is based is both transitory
(having an actual or expected duration of six months or less) and
minor. The regulations make clear (at Sec. 1630.2(l)(2) and Sec.
1630.15(f)) that this exception is a defense to a claim of
discrimination. ``Providing this exception responds to concerns
raised by employer organizations and is reasonable under the
`regarded as' prong of the definition because individuals seeking
coverage under this prong need not meet the functional limitation
requirement contained in the first two prongs of the definition.''
2008 Senate Statement of Managers at 10; see also 2008 House
Judiciary Committee Report at 18 (explaining that ``absent this
exception, the third prong of the definition would have covered
individuals who are regarded as having common ailments like the cold
or flu, and this exception responds to concerns raised by members of
the business community regarding potential abuse of this provision
and misapplication of resources on individuals with minor ailments
that last only a short period of time''). However, as an exception
to the general rule for broad coverage under the ``regarded as''
prong, this limitation on coverage should be construed narrowly.
2008 House Judiciary Committee Report at 18.
The relevant inquiry is whether the actual or perceived
impairment on which the employer's action was based is objectively
``transitory and minor,'' not whether the employer claims it
subjectively believed the impairment was transitory and minor. For
example, an employer who terminates an employee whom it believes has
bipolar disorder cannot take advantage of this exception by
asserting that it believed the employee's impairment was transitory
and minor, since bipolar disorder is not objectively transitory and
minor. At the same time, an employer that terminated an employee
with an objectively ``transitory and minor'' hand wound, mistakenly
believing it to be symptomatic of HIV infection, will nevertheless
have ``regarded'' the employee as an individual with a disability,
since the covered entity took a prohibited employment action based
on a perceived impairment (HIV infection) that is not ``transitory
and minor.''
An individual covered only under the ``regarded as'' prong is
not entitled to reasonable accommodation. 42 U.S.C. 12201(h). Thus,
in cases where reasonable accommodation is not at issue, the third
prong provides a more straightforward framework for analyzing
whether discrimination occurred. As Congress observed in enacting
the ADAAA: ``[W]e expect [the first] prong of the definition to be
used only by people who are affirmatively seeking reasonable
accommodations or modifications. Any individual who has been
discriminated against because of an impairment--short of being
granted a reasonable accommodation or modification--should be
bringing a claim under the third prong of the definition which will
require no showing with regard to the severity of his or her
impairment.'' Joint Hoyer-Sensenbrenner Statement at 6.
Section 1630.2(m) Qualified Individual
The ADA prohibits discrimination on the basis of disability
against a qualified individual.'' * * *
* * * * *
Section 1630.2(o) Reasonable Accommodation
An individual with a disability is considered ``qualified'' if
the individual can perform the essential functions of the position
held or desired with or without reasonable accommodation. A covered
entity is required, absent undue hardship, to provide reasonable
accommodation to an otherwise qualified individual with a
substantially limiting impairment or a ``record of'' such an
impairment. However, a covered entity is not required to provide an
accommodation to an individual who meets the definition of
disability solely under the ``regarded as'' prong.
The legislative history of the ADAAA makes clear that Congress
included this provision in response to various court decisions that
had held (pre-Amendments Act) that individuals who were covered
solely under the ``regarded as'' prong were eligible for reasonable
accommodations. In those cases, the plaintiffs had been found not to
be covered under the first prong of the definition of disability
``because of the overly stringent manner in which the courts had
been interpreting that prong.'' 2008 Senate Statement of Managers at
11. The legislative history goes on to explain that ``[b]ecause of
[Congress's] strong belief that accommodating individuals with
disabilities is a key goal of the ADA, some members [of Congress]
continue to have reservations about this provision.'' Id. However,
Congress ultimately concluded that clarifying that individuals
covered solely under the ``regarded as'' prong are not entitled to
reasonable accommodations ``is an acceptable compromise given our
strong expectation that such individuals would now be covered under
the first prong of the definition [of disability], properly
applied''). Further, individuals covered only under the third prong
still may bring discrimination claims (other than failure-to-
accommodate claims) under title I of the ADA. 2008 Senate Statement
of Managers at 9-10.
In general, an accommodation is any change in the work
environment or in the way things are customarily done that enables
an individual with a disability to enjoy equal employment
opportunities. There are three categories of reasonable
accommodation. These are (1) accommodations that are required to
ensure equal opportunity in the application process; (2)
accommodations that enable the employer's employees with
disabilities to perform the essential functions of the position held
or desired; and (3) accommodations that enable the employer's
employees with disabilities to enjoy equal benefits and privileges
of employment as are enjoyed by employees without disabilities. It
should be noted that nothing in this part prohibits employers or
other covered entities from providing accommodations beyond those
required by this part.
* * * * *
Section 1630.4 Discrimination Prohibited
Paragraph (a) of this provision prohibits discrimination on the
basis of disability against a qualified individual in all aspects of
the employment relationship. The range of employment decisions
covered by this nondiscrimination mandate is to be construed in a
manner consistent with the regulations implementing section 504 of
the Rehabilitation Act of 1973.
Paragraph (b) makes it clear that the language ``on the basis of
disability'' is not intended to create a cause of action for an
individual without a disability who claims that someone with a
disability was treated more favorably (disparate treatment), or was
[[Page 17016]]
provided a reasonable accommodation that an individual without a
disability was not provided. See 2008 House Judiciary Committee
Report at 21 (this provision ``prohibits reverse discrimination
claims by disallowing claims based on the lack of disability'').
Additionally, the ADA and this part do not affect laws that may
require the affirmative recruitment or hiring of individuals with
disabilities, or any voluntary affirmative action employers may
undertake on behalf of individuals with disabilities. However, part
1630 is not intended to limit the ability of covered entities to
choose and maintain a qualified workforce. Employers can continue to
use criteria that are job related and consistent with business
necessity to select qualified employees, and can continue to hire
employees who can perform the essential functions of the job.
The Amendments Act modified title I's nondiscrimination
provision to replace the prohibition on discrimination ``against a
qualified individual with a disability because of the disability of
such individual'' with a prohibition on discrimination ``against a
qualified individual on the basis of disability.'' As the
legislative history of the ADAAA explains: ``[T]he bill modifies the
ADA to conform to the structure of Title VII and other civil rights
laws by requiring an individual to demonstrate discrimination `on
the basis of disability' rather than discrimination `against an
individual with a disability' because of the individual's
disability. We hope this will be an important signal to both lawyers
and courts to spend less time and energy on the minutia of an
individual's impairment, and more time and energy on the merits of
the case--including whether discrimination occurred because of the
disability, whether an individual was qualified for a job or
eligible for a service, and whether a reasonable accommodation or
modification was called for under the law.'' Joint Hoyer-
Sensenbrenner Statement at 4; see also 2008 House Judiciary Report
at 21 (``This change harmonizes the ADA with other civil rights laws
by focusing on whether a person who has been discriminated against
has proven that the discrimination was based on a personal
characteristic (disability), not on whether he or she has proven
that the characteristic exists.'').
Section 1630.5 Limiting, Segregating and Classifying
This provision and the several provisions that follow describe
various specific forms of discrimination that are included within
the general prohibition of Sec. 1630.4. The capabilities of
qualified individuals must be determined on an individualized, case
by case basis. Covered entities are also prohibited from segregating
qualified employees into separate work areas or into separate lines
of advancement on the basis of their disabilities.
* * * * *
Section 1630.9: Not Making Reasonable Accommodation
* * * * *
Section 1630.9(e)
The purpose of this provision is to incorporate the
clarification made in the ADA Amendments Act of 2008 that an
individual is not entitled to reasonable accommodation under the ADA
if the individual is only covered under the ``regarded as'' prong of
the definition of ``individual with a disability.'' However, if the
individual is covered under both the ``regarded as'' prong and one
or both of the other two prongs of the definition of disability, the
ordinary rules concerning the provision of reasonable accommodation
apply.
Section 1630.10 Qualification Standards, Tests, and Other Selection
Criteria
Section 1630.10(a)--In General
The purpose of this provision is to ensure that individuals with
disabilities are not excluded from job opportunities unless they are
actually unable to do the job. It is to ensure that there is a fit
between job criteria and an applicant's (or employee's) actual
ability to do the job. Accordingly, job criteria that even
unintentionally screen out, or tend to screen out, an individual
with a disability or a class of individuals with disabilities
because of their disability may not be used unless the employer
demonstrates that those criteria, as used by the employer, are job
related for the position to which they are being applied and are
consistent with business necessity. The concept of ``business
necessity'' has the same meaning as the concept of ``business
necessity'' under section 504 of the Rehabilitation Act of 1973.
Selection criteria that exclude, or tend to exclude, an
individual with a disability or a class of individuals with
disabilities because of their disability but do not concern an
essential function of the job would not be consistent with business
necessity.
The use of selection criteria that are related to an essential
function of the job may be consistent with business necessity.
However, selection criteria that are related to an essential
function of the job may not be used to exclude an individual with a
disability if that individual could satisfy the criteria with the
provision of a reasonable accommodation. Experience under a similar
provision of the regulations implementing section 504 of the
Rehabilitation Act indicates that challenges to selection criteria
are, in fact, often resolved by reasonable accommodation.
This provision is applicable to all types of selection criteria,
including safety requirements, vision or hearing requirements,
walking requirements, lifting requirements, and employment tests.
See 1989 Senate Report at 37-39; House Labor Report at 70-72; House
Judiciary Report at 42. As previously noted, however, it is not the
intent of this part to second guess an employer's business judgment
with regard to production standards. See Sec. 1630.2(n) (Essential
Functions). Consequently, production standards will generally not be
subject to a challenge under this provision.
The Uniform Guidelines on Employee Selection Procedures (UGESP)
29 CFR part 1607 do not apply to the Rehabilitation Act and are
similarly inapplicable to this part.
Section 1630.10(b)--Qualification Standards and Tests Related to
Uncorrected Vision
This provision allows challenges to qualification standards
based on uncorrected vision, even where the person excluded by a
standard has fully corrected vision with ordinary eyeglasses or
contact lenses. An individual challenging a covered entity's
application of a qualification standard, test, or other criterion
based on uncorrected vision need not be a person with a disability.
In order to have standing to challenge such a standard, test, or
criterion, however, a person must be adversely affected by such
standard, test or criterion. The Commission also believes that such
individuals will usually be covered under the ``regarded as'' prong
of the definition of disability. Someone who wears eyeglasses or
contact lenses to correct vision will still have an impairment, and
a qualification standard that screens the individual out because of
the impairment by requiring a certain level of uncorrected vision to
perform a job will amount to an action prohibited by the ADA based
on an impairment. (See Sec. 1630.2(l); Appendix to Sec.
1630.2(l).)
In either case, a covered entity may still defend a
qualification standard requiring a certain level of uncorrected
vision by showing that it is job related and consistent with
business necessity. For example, an applicant or employee with
uncorrected vision of 20/100 who wears glasses that fully correct
his vision may challenge a police department's qualification
standard that requires all officers to have uncorrected vision of no
less than 20/40 in one eye and 20/100 in the other, and visual
acuity of 20/20 in both eyes with correction. The department would
then have to establish that the standard is job related and
consistent with business necessity.
Section 1630.15 Defenses
* * * * *
Section 1630.15(f) Claims Based on Transitory and Minor Impairments
Under the ``Regarded As'' Prong
It may be a defense to a charge of discrimination where coverage
would be shown solely under the ``regarded as'' prong of the
definition of disability that the impairment is (in the case of an
actual impairment) or would be (in the case of a perceived
impairment) both transitory and minor. Section 1630.15(f)(1)
explains that an individual cannot be ``regarded as having such an
impairment'' if the impairment is both transitory (defined by the
ADAAA as lasting or expected to last less than six months) and
minor. Section 1630.15(f)(2) explains that the determination of
``transitory and minor'' is made objectively. For example, an
individual who is denied a promotion because he has a minor back
injury would be ``regarded as'' an individual with a disability if
the back impairment lasted or was expected to last more than six
months. Although minor, the impairment is not transitory. Similarly,
if an employer discriminates against an employee based on the
employee's bipolar disorder (an impairment that is not transitory
and minor), the employee is ``regarded as'' having a
[[Page 17017]]
disability even if the employer subjectively believes that the
employee's disorder is transitory and minor.
* * * * *
[FR Doc. 2011-6056 Filed 3-24-11; 8:45 am]
BILLING CODE P