EEOC Releases Final ADA Amendments Act Regulations

Ed Doherty

On March 25, 2011, the United States Equal Employment Opportunity Commission (EEOC) published its final regulations implementing the ADA Amendments Act of 2008 (ADAAA). The regulation explains in greater detail the ADAAA’s new definition of "disabled" for purposes of the Americans with Disabilities Act of 1990 (ADA) and addresses many of the questions and concerns employers had with the ADAAA.

Congress passed the ADAAA regulations to help disabled individuals and the EEOC enforce their rights under the ADA. The ADAAA overrules several Supreme Court decisions that had narrowly construed the term "disabled," so that people whom Congress believes are disabled could not successfully enforce their rights against employers or potential employers for unlawful discrimination.

Ultimately, the ADAAA regulations broaden the definition of disabled, so that a lawsuit focuses on whether the employer has violated the claimant’s ADA rights. Quite straightforwardly, the regulation states, "[t]he question of whether an individual meets the definition of disability under this part should not demand extensive analysis."

Technically speaking, what does the ADAAA regulation do?

The ADAAA and the regulation alter the course of a lawsuit brought under the ADA. Instead of dwelling on the question of whether an employee is disabled, the lawsuit will now mostly turn on whether the employer violated an individual’s rights under the ADA.

When an employee or potential employee believes they have been denied the protections of the Americans with Disabilities Act, the individual must first file their grievance with the EEOC. Next, either the EEOC or the individual, as plaintiff, can sue the employer. To be successful in the suit, the plaintiff must first prove that the individual has a disability; thereafter, the plaintiff must demonstrate that the employer somehow discriminated against the disabled individual in violation of the individual’s rights. The ADAAA and the new regulation make it easier for the plaintiff to prove that the individual has a disability for purposes of the lawsuit.

The regulation expands the definition of disabled to include people with conditions that the Supreme Court of the United States decided were not disabilities, including those with cancer, diabetes, and epilepsy. Whether or not treatments or methods exist to ameliorate the condition does not affect whether the individual is disabled; that is, even though the employee can do something to overcome the disability, this does not mean the employee is not disabled. The regulation exempts normal vision-correcting eyeglasses or contacts.

There are three different ways an employee can be considered disabled for purposes of ADA litigation: an actual disability, a record of disability, and regarding the individual as having a disability. The first is straightforward: the individual presently has a disability and the employer commits discriminatory acts against the disabled employee. "A record of disability" is when the employee either actually once had or erroneously was believed to have a disability, and the employee commits a discriminatory act based on this past belief. "Regarding the individual as having a disability" occurs when the employer commits discriminatory acts based on the individual having an impairment or when the employer merely believes the employee has an impairment; the employer can defend its actions if the employer can prove that the individual’s impairment is "minor and transitory."

The expanded definition of disability makes this step easier for plaintiffs in lawsuits. Consequently, more plaintiffs will succeed in lawsuits against employers, as more cases advance to asking whether the employer violated the plaintiff’s rights against discrimination. In the end, the potential for increasing litigation costs should prompt employers to put more effort into preventing litigation and will hopefully result in fewer instances of potential discrimination against individuals with disabilities.

So what does this mean for employers?

Employers should take note of two of the regulation’s repercussions. First, employers should know the list of specific conditions that "consistently" qualify as disabilities and be ready to accommodate employees and potential employees accordingly. Employees and potential employees with these conditions will present the "easy cases" of ADA discrimination, so employers should take care to avoid incurring liabilities with them. Yet the list of conditions that "consistently" qualify a person as disabled is not exhaustive, so every instance still requires an individual assessment.

Second, employers must bear disabilities in mind even when employees successfully cope with conditions or when an impairment is not constant. Although the employee may be able to take actions to improve functionality with a condition, such as by regularly taking insulin to control diabetes, this does not mean that the employer can discriminate against that employee based on the condition; the employer must not allow the fact that the employee or potential employee has a disability to affect its actions towards the employee. However, an employer may consider an employee’s failure to mitigate his or her condition with regard to that person’s potential fitness for a position.

Conclusion: The Regulation Eases Compliance with the ADAAA

The recently-released regulation resolves a few lingering uncertainties about the ADAAA, but it does not expand "disability" much beyond the changes enacted in the ADAAA. Employers should continue implementing policies that assure compliance with the ADA and that discourage employees from taking actions based on the presence or absence of disability.