Published by MoASBO, September 2011

In 2009 employers across the country heaved a sigh of defeat as the Americans With Disabilities Act Amendment Act (ADAAA) went into effect, undoing nearly a decade of employer-friendly court decisions.  With the ADAAA, Congress intended for courts to interpret the definition of “disability” in a much broader fashion, enabling more employees to receive the protections of the Act.  The ADAAA seeks to accomplish this goal by requiring employers to disregard the ameliorative effects of medication and assistive devices that may have an effect on an impairment, to treat individuals with episodic conditions, or conditions in remission, as still being “disabled” if the condition, when active, would substantially limit a major life activity.  The ADAAA also significantly expanded the definition of “major life activities” to include nearly every physiological function, including functions of the immune, musculoskeletal, neurological, circulatory and reproductive systems.

Congress, in its drafting of the ADAAA, also specifically stated that the Equal Employment Opportunity Commission’s (EEOC) then-current ADA regulations that defined the term “substantially limits” as meaning “significantly restricted” was too high and strict a standard.  Congress directed the EEOC to revise its regulations to be consistent with the intent and standards of the ADAAA.  On March 25, 2011, the EEOC issued its final regulations implementing the ADAAA.  The new regulations went into effect May 24, 2011.

First, the new regulations no longer refer to a “qualified individual with a disability.”  In order to be consistent with the ADAAA, the regulations now refer to simply and “individual with a disability” and a “qualified individual,” as two separate terms.  Discrimination is prohibited “on the basis of disability” rather than “against a qualified individual because of the disability of such individual.”  The EEOC, in answering questions about this change, states that it is intended to shift the focus from an inquiry into whether the individual is “disabled” to whether or not discrimination actually occurred.

Second, under the “regarded as” prong of defining “disability,” employees are no longer required to show that he or she is regarded by the employer as being substantially limited in a “major life activity” – the employee now must only show that he or she has been subjected to an action prohibited by the ADAAA because of an actual or perceived impairment that is not both “transitory and minor”.  If an employee is not seeking a reasonable accommodation, but rather is merely complaining of discrimination, then the case should proceed under the “regarded as” analysis, because an individual who proceeds under this analysis is not entitled to a reasonable accommodation.  In addition, the former definition of “major life activities” as the basic activities that most people can perform “with little or no difficulty” has been deleted, and replaced with a non-exhaustive list of “major life activities.”

Third, there is still no definition of “substantially limits;” however, the regulations set out nine “rules of construction” to determine whether an impairment is substantially limiting:

(1) 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. 

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(8) 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.

(9) The six-month ‘‘transitory’’ part of “transitory and minor” exception to “regarded as” coverage does not apply to the definition of “disability” under the first prong (“actual disability”) or second prong (“record of” a disability).