EEOC Taking Action to Bolster ADA

Earlier this month, the Equal Employment Opportunity Commission approved a Notice of Proposed Rulemaking revising its regulations to comport with the recent changes to the Americans with Disabilities Act ("ADA") under the ADA Amendments Act ("ADAAA"). The proposed regulations are consistent with the interpretation of the ADAAA outlined in "The ADA Amendments Act: An Overview of Recent Changes to the Americans with Disabilities Act" and mark a positive evolution in the law - one that reinvigorates the ADA by providing protection for individuals who were not previously covered.

The Americans with Disabilities Act was intended to be a strong and broad civil rights law. Once lauded as a tremendous step forward for the disability community, the Supreme Court not only turned the ADA on its heels but shoved it two steps back. In Toyota v. Williams, the Supreme Court transformed the broad scope of the ADA into a nearly insurmountable demanding standard. In Sutton v. United Airlines, Inc., the Supreme Court required consideration of mitigating measures in determining whether a person is disabled and created a subjective standard for proving a covered entity regarded a person as disabled. These two cases shattered the inclusive standard applied by courts construing the definition of "handicapped individual" under the Rehabilitation Act - a standard Congress expected to be followed under the ADA - and invited courts to deny people seeking protection from discrimination. This contortion of the ADA resulted in lower court determinations that denied people with epilepsy, HIV, muscular dystrophy and cancer, among other disabilities, protection from discrimination.

Despite the past holdings and reasoning, the future of disability law is bright and the end of discrimination against persons with disabilities is near. The ADA Amendments Act, which went into effect on January 1, 2009, is a critical step towards meeting ADA's objective of providing "a clear and comprehensive national mandate for the elimination of discrimination" and "clear, strong, consistent, enforceable standards addressing discrimination' against people with disabilities." 

As the EEOC recognizes, "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." For example, consistent with the provisions of the ADAAA, the EEOC's proposed rules:

• provides that the definition of "disability" shall be interpreted broadly;
• revises the term "substantially limits" by providing that a limitation need not "significantly" or "severely" restrict a major life activity in order to meet the standard, and attempts 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 v. Williams, 534 U.S. 134 (2002)
• expands the definition of "major life activities" through two non-exhaustive lists that are consistent with the ADAAA's legislative history:
o the first list includes 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
o the second list includes 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
• provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• provides that the definition of "regarded as" is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides 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.

Watchdogs for civil rights and liberties are encouraged to learn more about the ADA Amendments Act and participate in the public comment period. For an overview of the ADA Amendments Act, please see my recent ACS Issue brief. To comment on the NPRM or for additional information, visit here.

Together, we will ensure that the rights and dignity of people with disabilities are upheld and where they are not, the ADAAA serves as a powerful condemnation of and protection against discrimination.