EEOC Proposes Rules for ADA Amendments Act Of 2008

The U.S. Equal Employment Opportunity Commission met June 17 and voted to approve a Notice of Proposed Rulemaking (NPRM) to conform its ADA regulations to the ADA Amendments Act Of 2008. The proposed NPRM is now sent for comment by other federal agencies pursuant to Executive Order 12067 and for approval by the Office of Management and Budget. When this process is completed, the Commission will publish its NPRM for public comment. Read more.

EEOC circulated the following email summarizing the rulemaking:

EEOC Proposed Rule Making addressing the ADA Amendments Act of 2008

On June 17, 2009, the Equal Employment Opportunity Commission voted to adopt proposed regulations implementing the Americans with Disabilities Act Amendments Act of 2008  which became law January 1, 2009.  The amended ADA lowers the high threshold for establishing that an individual is disabled set by the Supreme Court in Toyota v. Williams, Sutton v. United Airlines, Murphy v. United Parcel Service and Albertsons v. Kirkenburg  The Commission will submit the Notice of Proposed Rulemaking  and  publish the proposed regulatory changes in the Federal Register for notice and comment.

EEOC Vice Chair Griffin explained that the proposed regulations implementing the Act are intended to follow Congress’ direction to reverse the court decisions which narrowed the ADA’s s protections. Stating that the proposed changes provide a good tool for moving back toward Congress’ intention of eliminating discrimination; “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, characterized the proposed changes as an attempt to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes”.   He went on to discuss that the changes utilized  five rules of construction or principles to carry out the Congress’ intent in amending the ADA:

1. Courts should focus on determining whether discrimination actually occurred, rather than on proving the existence of a disability;

2.  An individual need not demonstrate limitedness in “activities of central importance to daily life”;

3.  An impairment that substantially limits one life activity need not limit others to be “substantially limiting”;

4.  The comparison of an individual’s limits to those of most people in the general population may often be made through common-sense analogy, without citing to scientific analysis; and

5.  Impairments lasting less than six months may still be considered “substantially limiting”  including episodic conditions and those in remission.

He noted that the NPRM will identify a number of impairments that will consistently meet the definition of ‘disability’ because they will obviously be substantially limiting.  This list includes expected conditions such as blindness, deafness, and missing limbs, but also includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Kuczynski emphasized that the explicit inclusion of certain conditions should never undermine the interactive and individualized nature of  that is central to the accommodation process.  The NPRM also identifies a number of impairments that may be substantially limiting depending on individual circumstances, such as asthma, high blood pressure, carpal tunnel syndrome, and panic disorder.

Commissioner Barker dissented, because she viewed the proposed changes as exceeding EEOC’s authority under the Act. While she agreed the ADA needed amending, she believed the existing ADA Amendments Act embodied the extent of the changes Congress intended to make, and that as non-legislators, EEOC is “confined to making those changes…that correctly reflect Congressional intent,” and that they do not have the power to insert or remove concepts of their own volition without authority. She further asserted that Congress had developed the Act after much bipartisan negotiation and compromise, arriving at a solution that represented the “careful balancing of interests.” Commissioner Barker said Congress did not intend “to throw out the ADA and start afresh.”