The Final Regulations to the ADA Amendments Act

Congress enacted the ADAAA, signed into law on Sept. 25, 2008, and effective Jan. 1, 2009, in response to a series of Supreme Court decisions that severely narrowed the definition of a disability under the ADA. Those decisions, generally referred to as the Sutton Trilogy, resulted in the denial of the ADA's protections to many individuals with impairments or who were regarded as having such impairments, without ever reaching the merits of their claims.

The ADA defined “disability” as a condition that consists of a physical or mental impairment that “substantially limits” one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. The requirement that the impairment be substantially limiting was quite demanding and often difficult for plaintiffs to meet. The focus in defining “disability” was on what the employee could or could not do, that is, how the “disability” limited the employee's ability to perform a major life function. Conversely, if plaintiffs were not able to perform a significant function of their job because they were disabled, then they would not be “otherwise qualified” under the Act. Consequently, before the ADAAA, plaintiffs were either too disabled to be protected if they could not perform the essential functions of the job with an accommodation, or they were not impaired (or regarded as impaired) enough to qualify for protection under the statute. As a result of these restrictions, plaintiffs seldom were able to have their cases decided on the merits, even if they had evidence demonstrating that the employer had in fact violated the ADA.

In response to the Supreme Court's decisions reading the 1990 statute narrowly, Congress decided to restore the original intent of the ADA and expand protections for individuals who may have otherwise been without a remedy.

The Final Regulations to the ADAAA

In enacting the ADAAA, Congress did not alter the ADA's literal definition of the term “disability.” Rather, the ADAAA added language that makes significant changes in how those terms should be interpreted. On March 24, 2011, the EEOC issued the final regulations to the ADAAA. The new regulations replace the ADA's prior high level of scrutiny with a standard in favor of broad coverage for individuals seeking protection under the Act.

The most significant changes include:

• An expanded definition of “major life activities,” which now includes two non-exhaustive lists of covered conditions;
• A provision excluding consideration of mitigating measures other than “ordinary eyeglasses or contact lenses” in assessing whether an individual has a disability;
• Clarification that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
• A provision that an individual subjected to an action prohibited by the ADA, because of an actual or perceived impairment, will meet the “regarded as” definition of disability, regardless of whether that impairment is perceived by the employer as “substantially limiting” a “major life activity.”

A. List of Impairments

The regulations list various conditions that, “given their inherent nature,” will meet the definition of disability “in virtually all cases,” notwithstanding the ADA's rejection of the notion of a per se disability. Examples of such conditions include: deafness, blindness, intellectual disability (formerly mental retardation), mobility impairment requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

B. The Analysis of Mitigating Measures Is Significantly Diminished

The ADAAA and the new EEOC regulations make clear that mitigating measures are not to be taken into account in evaluating whether an individual has a disability under the Act. Under the ADA, an individual who mitigated a medical condition so that it no longer impacted a major life function often was not considered disabled. For instance, an individual suffering from diabetes who took insulin, and therefore could not demonstrate that a major life function was affected by the disease, would not be entitled to request a reasonable accommodation under the Act. Under the ADAAA and the new EEOC regulations, diabetes is a “disability” because it significantly impacts the endocrine system. Even if an employee uses insulin and it successfully controls the diabetes, he or she is still most likely “disabled” under the Act. To be sure, mitigating measures are still relevant in determining whether the employer is obligated to provide a reasonable accommodation, an important part of the ADA. If the individual with diabetes successfully controls his or her symptoms, he or she may be “disabled” so as to be able to request a reasonable accommodation, but the employer can still refuse such request if the employee does not actually need an accommodation to perform his or her job. Obviously, an employer cannot discriminate because it has outdated stereotypes about what diabetes means or because it views the employee as somehow less capable.

C. Episodic Conditions and Those with Symptoms in Remission Are Still Disabilities

The ADAAA and the implementing regulations make clear that an individual who experiences episodic symptoms or whose condition is in remission is still disabled. For instance, before the enactment of the ADAAA, a condition such as cancer, when in remission, was frequently determined by courts not to be a disability. Under the new amendments and regulations, it is clear that an individual who has been diagnosed with cancer is disabled, even if the cancer is in remission and/or the individual is demonstrating symptoms on only an episodic basis. Such an individual would still be entitled to the protections of the Act in that an employer could not discriminate against him or her whether or not in a period of remission. The employee would be eligible for reasonable accommodations, however, only when the symptoms were present. In addition, temporary disabilities, if they are severe enough, may be covered under the Act.

D. Definition of 'Regarded As' No Longer Focuses on Substantial Limitation

One of the most significant changes to the regulations affects those covered under the “regarded as” prong of the definition of disability. Under the ADA, the “regarded as” prong of the definition encompassed individuals who did not have a physical or mental impairment that substantially limited a major life activity, but who were erroneously viewed as, or treated by, a covered entity as having such an impairment. Under that statute, an employee could meet the definition of “regarded as” only if the employee had evidence that the employer was: 1) aware of the employee's actual or suspected impairment; and 2) viewed the impairment as “substantially limiting a major life activity.”

The new regulations now make clear that whether the impairment substantially limits a major life activity is not a relevant consideration under the “regarded as” prong, as it is when considering whether an employee has an actual disability. In other words, to prevail on an adverse treatment claim on the basis of being “regarded as” disabled, the employee need only demonstrate that the employer took a prohibited adverse action based on its belief that the employee had an actual or perceived impairment, without regard to whether that condition was perceived as substantially limiting a major life activity. The final regulations make it clear, however, that even if coverage is established under the “regarded as” prong, the individual must still establish the other elements of the claim (i.e., that he is qualified), and the employer may still raise any available defenses. In other words, a finding of “regarded as” is not itself a finding of liability.

The final regulations also instruct that there is no duty to accommodate based on an individual being “regarded as” disabled. Therefore, if an accommodation request is not at issue, the final regulations emphasize that the “regarded as” prong of proving that an individual is disabled under the ADAAA should be utilized. The test is easier than the first prong because the employee does not have to prove that his disability impacts a major life function. While the ADAAA generally expands the group of individuals covered under the statute, Congress also noted an important exception: The “regarded as” prong does not include those impairments that are “transitory and minor.” “Transitory” is defined as those impairments lasting six months or less. The term “minor” is not defined under the Act. However, the EEOC regulations state that the determination should be assessed objectively. Thus, a covered entity may not defeat a claim by asserting that it believed an impairment was transitory and minor when objectively this is not the case. For example, an employer that fires an employee because he has bipolar disorder cannot assert that it believed the impairment was transitory and minor because bipolar disorder is not objectively transitory and minor under the ADAAA.

Conclusion

At the time of its passage, the ADA was hailed as an “emancipation proclamation” for people with disabilities. The ADA passed with overwhelming support in both houses of Congress, facing virtually no opposition. Over the following two decades, however, several federal court decisions significantly limited the scope and effectiveness of the ADA. In enacting the ADAAA, Congress intended to restore the original intent underlying the ADA and explicitly instructed the EEOC to promulgate regulations that explained that the determination of whether an individual has a disability should not demand extensive analysis. The new regulations are crucial in that they not only restored the congressional intent underlying the ADA, but also by effectively redefining what it means to be disabled, more individuals will be able to qualify as disabled and move the inquiry to the merits of their case.

Melissa E. Pierre-Louis is an associate at Outten & Golden LLP, where she represents employees in litigation and negotiation in all areas of employment law, including individual and class discrimination cases and wage and hour class actions.

March 24, 2011 marked a crucial moment in the law of disability discrimination. More than three years after the Americans with Disabilities Act Amendments Act (the ADAAA) was signed into law, on September 25, 2008, the Equal Employment Opportunity Commission (EEOC) issued its much-awaited final regulations interpreting the Act.

The final regulations implementing the ADAAA change much of the existing legal framework interpreting what it means to be disabled under the Americans with Disabilities Act of 1990 (ADA). In redefining what it means to be disabled, the regulations broaden the scope of employees and applicants who fall within the Act's protections, and many more plaintiffs will now be able to reach the merits of their claims.

Americans with Disabilities Act Amendments Act

Congress enacted the ADAAA, signed into law on Sept. 25, 2008, and effective Jan. 1, 2009, in response to a series of Supreme Court decisions that severely narrowed the definition of a disability under the ADA. Those decisions, generally referred to as the Sutton Trilogy, resulted in the denial of the ADA's protections to many individuals with impairments or who were regarded as having such impairments, without ever reaching the merits of their claims.

The ADA defined “disability” as a condition that consists of a physical or mental impairment that “substantially limits” one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. The requirement that the impairment be substantially limiting was quite demanding and often difficult for plaintiffs to meet. The focus in defining “disability” was on what the employee could or could not do, that is, how the “disability” limited the employee's ability to perform a major life function. Conversely, if plaintiffs were not able to perform a significant function of their job because they were disabled, then they would not be “otherwise qualified” under the Act. Consequently, before the ADAAA, plaintiffs were either too disabled to be protected if they could not perform the essential functions of the job with an accommodation, or they were not impaired (or regarded as impaired) enough to qualify for protection under the statute. As a result of these restrictions, plaintiffs seldom were able to have their cases decided on the merits, even if they had evidence demonstrating that the employer had in fact violated the ADA.

In response to the Supreme Court's decisions reading the 1990 statute narrowly, Congress decided to restore the original intent of the ADA and expand protections for individuals who may have otherwise been without a remedy.

The Final Regulations to the ADAAA

In enacting the ADAAA, Congress did not alter the ADA's literal definition of the term “disability.” Rather, the ADAAA added language that makes significant changes in how those terms should be interpreted. On March 24, 2011, the EEOC issued the final regulations to the ADAAA. The new regulations replace the ADA's prior high level of scrutiny with a standard in favor of broad coverage for individuals seeking protection under the Act.

The most significant changes include:

• An expanded definition of “major life activities,” which now includes two non-exhaustive lists of covered conditions;
• A provision excluding consideration of mitigating measures other than “ordinary eyeglasses or contact lenses” in assessing whether an individual has a disability;
• Clarification that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
• A provision that an individual subjected to an action prohibited by the ADA, because of an actual or perceived impairment, will meet the “regarded as” definition of disability, regardless of whether that impairment is perceived by the employer as “substantially limiting” a “major life activity.”

A. List of Impairments

The regulations list various conditions that, “given their inherent nature,” will meet the definition of disability “in virtually all cases,” notwithstanding the ADA's rejection of the notion of a per se disability. Examples of such conditions include: deafness, blindness, intellectual disability (formerly mental retardation), mobility impairment requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

B. The Analysis of Mitigating Measures Is Significantly Diminished

The ADAAA and the new EEOC regulations make clear that mitigating measures are not to be taken into account in evaluating whether an individual has a disability under the Act. Under the ADA, an individual who mitigated a medical condition so that it no longer impacted a major life function often was not considered disabled. For instance, an individual suffering from diabetes who took insulin, and therefore could not demonstrate that a major life function was affected by the disease, would not be entitled to request a reasonable accommodation under the Act. Under the ADAAA and the new EEOC regulations, diabetes is a “disability” because it significantly impacts the endocrine system. Even if an employee uses insulin and it successfully controls the diabetes, he or she is still most likely “disabled” under the Act. To be sure, mitigating measures are still relevant in determining whether the employer is obligated to provide a reasonable accommodation, an important part of the ADA. If the individual with diabetes successfully controls his or her symptoms, he or she may be “disabled” so as to be able to request a reasonable accommodation, but the employer can still refuse such request if the employee does not actually need an accommodation to perform his or her job. Obviously, an employer cannot discriminate because it has outdated stereotypes about what diabetes means or because it views the employee as somehow less capable.

C. Episodic Conditions and Those with Symptoms in Remission Are Still Disabilities

The ADAAA and the implementing regulations make clear that an individual who experiences episodic symptoms or whose condition is in remission is still disabled. For instance, before the enactment of the ADAAA, a condition such as cancer, when in remission, was frequently determined by courts not to be a disability. Under the new amendments and regulations, it is clear that an individual who has been diagnosed with cancer is disabled, even if the cancer is in remission and/or the individual is demonstrating symptoms on only an episodic basis. Such an individual would still be entitled to the protections of the Act in that an employer could not discriminate against him or her whether or not in a period of remission. The employee would be eligible for reasonable accommodations, however, only when the symptoms were present. In addition, temporary disabilities, if they are severe enough, may be covered under the Act.

D. Definition of 'Regarded As' No Longer Focuses on Substantial Limitation

One of the most significant changes to the regulations affects those covered under the “regarded as” prong of the definition of disability. Under the ADA, the “regarded as” prong of the definition encompassed individuals who did not have a physical or mental impairment that substantially limited a major life activity, but who were erroneously viewed as, or treated by, a covered entity as having such an impairment. Under that statute, an employee could meet the definition of “regarded as” only if the employee had evidence that the employer was: 1) aware of the employee's actual or suspected impairment; and 2) viewed the impairment as “substantially limiting a major life activity.”

The new regulations now make clear that whether the impairment substantially limits a major life activity is not a relevant consideration under the “regarded as” prong, as it is when considering whether an employee has an actual disability. In other words, to prevail on an adverse treatment claim on the basis of being “regarded as” disabled, the employee need only demonstrate that the employer took a prohibited adverse action based on its belief that the employee had an actual or perceived impairment, without regard to whether that condition was perceived as substantially limiting a major life activity. The final regulations make it clear, however, that even if coverage is established under the “regarded as” prong, the individual must still establish the other elements of the claim (i.e., that he is qualified), and the employer may still raise any available defenses. In other words, a finding of “regarded as” is not itself a finding of liability.

The final regulations also instruct that there is no duty to accommodate based on an individual being “regarded as” disabled. Therefore, if an accommodation request is not at issue, the final regulations emphasize that the “regarded as” prong of proving that an individual is disabled under the ADAAA should be utilized. The test is easier than the first prong because the employee does not have to prove that his disability impacts a major life function. While the ADAAA generally expands the group of individuals covered under the statute, Congress also noted an important exception: The “regarded as” prong does not include those impairments that are “transitory and minor.” “Transitory” is defined as those impairments lasting six months or less. The term “minor” is not defined under the Act. However, the EEOC regulations state that the determination should be assessed objectively. Thus, a covered entity may not defeat a claim by asserting that it believed an impairment was transitory and minor when objectively this is not the case. For example, an employer that fires an employee because he has bipolar disorder cannot assert that it believed the impairment was transitory and minor because bipolar disorder is not objectively transitory and minor under the ADAAA.

Conclusion

At the time of its passage, the ADA was hailed as an “emancipation proclamation” for people with disabilities. The ADA passed with overwhelming support in both houses of Congress, facing virtually no opposition. Over the following two decades, however, several federal court decisions significantly limited the scope and effectiveness of the ADA. In enacting the ADAAA, Congress intended to restore the original intent underlying the ADA and explicitly instructed the EEOC to promulgate regulations that explained that the determination of whether an individual has a disability should not demand extensive analysis. The new regulations are crucial in that they not only restored the congressional intent underlying the ADA, but also by effectively redefining what it means to be disabled, more individuals will be able to qualify as disabled and move the inquiry to the merits of their case.

Melissa E. Pierre-Louis is an associate at Outten & Golden LLP, where she represents employees in litigation and negotiation in all areas of employment law, including individual and class discrimination cases and wage and hour class actions.