Final Regulations to the ADA Amendments Act Raise More Questions Than Answers

March 30, 2011

On March 25, 2011, the Equal Employment Opportunity Commission’s (“EEOC”) final revised Americans with Disabilities Act (“ADA”) regulations and accompanying interpretive guidance to implement the ADA Amendments Act of 2008 (“ADAA”) were published in the Federal Registrar. The regulations are effective May 24, 2011.

The ADAA did not change the definition of disability as 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. It did, however, expand the meaning of certain terms contained in the definition of disability arguably making it easier for an individual to establish that he or she is disabled under the ADA.

Major Life Activities

According to the new regulations, major life activities now include the operation of major bodily functions as well as the more traditional list of activities commonly understood as being major life activities. Activities constituting major life activities include 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. The operation of major bodily functions include the 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.

The regulations explain that the examples provided are non-exhaustive. To determine other major life activities not specifically identified, the regulations expressly reject the standard adopted by the Supreme Court in Toyota Motor Mfg.,. Ky., Inc. v. Williams, 534 U.S. 184 (2002) emphasizing that the term “major” is not to be interpreted strictly to create a demanding standard for a disability and whether an activity is of “central importance to daily life” is not indicative of whether it constitutes a major life activity.

Substantially Limits

What does “substantially limits” mean?

The regulations do not define the phrase “substantially limits,” but instead provide guidelines for consideration in determining whether an impairment “substantially limits” a major life activity. Most of this guidance is, however, framed in the negative. In other words, the regulations focus primarily on what “substantially limits” does not mean, rather than on what it means. As with the definition of “major,” the regulations explain that the phrase “substantially limits” is not meant to be a demanding standard and reject the Supreme Court’s definition of “substantially limits” described in Toyota as “prevents or severely restricts.” The regulations provide that an impairment need not prevent or significantly or severely restrict an individual from performing a major life activity to be considered substantially limiting. “Substantially limits” is to be applied to require a degree of functional limitation that is lower than the standard applied prior to the ADAA.

The regulations gloss over the “substantially limits” requirement commenting that whether an impairment “substantially limits” a major life activity is a threshold issue and should not demand extensive analysis. Instead, they explain that the primary object of a case brought under the ADA should be whether an employer has complied with its obligations and whether discrimination has occurred, not whether an individual’s impairment “substantially limits” a major life activity.

The regulations provide limited affirmative guidance regarding the definition of “substantially limits.” They do, however, explain that an individual who falls within the parameters of the ADA is substantially limited in his or her performance of a major life activity as compared to the performance of the same major life activity by most people in the general population. The regulations note that scientific, medical or statistical analysis is generally not required, but may be used where appropriate. The regulations instruct employers to consider the condition under which the individual performs the major life activity, the manner in which the individual performs the major life activity, and/or the duration of time it takes the individual to perform the major life activity or the duration for which the individual can perform the major life activity. Consideration of facts such as condition, manner or duration may include, among other things, consideration of the difficulty, effort or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function. Negative side effects of medication or burdens associated with following a particular treatment regime may also be considered.

Predicable assessments — What impairments will in virtually all cases result in a determination that an employee is disabled?

Although emphasizing that whether an individual is disabled requires individual, factual inquiry, the regulations provide a list of types of impairments that will, at minimum, substantially limit the major life activities indicated: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheel chair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia substantially limits brain function.

The consideration of mitigating measures and episodic conditions

With respect to mitigating measures, the regulations reject the United States Supreme Court’s decision in Sutton v. United Air Lines¸ Inc., 527 U.S. 471 (1991) explaining that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an impairment substantially limits a major life activity. The regulations also provide that qualification standards, employment tests or other selection criteria, based on an individual’s uncorrected vision may not be used unless shown to be job-related for the position in question and consistent with business necessity.

The regulations note that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Regarded As

The definition of “regarded as” has changed under the regulations so that the concepts of “substantially limits” and “major life activity” are no longer relevant. An employee will meet the “regarded as” prong of the definition of disability under the new regulations if he or she is subjected to a prohibited action (not hired, fired, promoted, etc.) because of a perceived physical or mental impairment alone.

While the definition of “regarded as” may make it easier for employees to state “regarded as” discrimination claims, the new regulations also provide a defense to such claims and also for claims based on actual impairments, namely that the impairment was transitory and minor. To establish this defense, an employer must demonstrate that the impairment is objectively both transitory, defined as lasting or expected to last six months or less, and minor. An employer may not argue that it subjectively believed the impairment was transitory and minor. For example, an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of the “transitory and minor” defense since bipolar is not objectively transitory or minor. However, an employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will have “regarded” the employee as an individual with a disability, because the employer took prohibited action based on a perceived impairment that is not “transitory and minor.”

The regulations also clarify that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodations.

Reverse Disability Claims

The regulations have also been amended to specifically state that individuals without disabilities may not claim discrimination because of a lack of disability including claiming that an individual with a disability was granted an accommodation that was denied to an individual without a disability.

Regulations That Have Not Changed

The EEOC did not make revisions to the regulations relating to the exceptions to the definition of disability; the direct threat defense; association with an individual with a disability; the obligations of employers and individuals during the interactive process following a request for a reasonable obligation, health insurance, disability and other benefit programs; and the interaction of the ADA, the Family and Medical Leave Act, and workers’ compensation laws.

Significance for Employers

The new regulations will certainly provide fodder for disability discrimination litigation. The EEOC has already seen an increase in disability discrimination claims having received 25,165 claims in 2010, the largest number of disability claims since the ADA went into effect in 1992.

Unfortunately, the regulations have dodged the hard questions leaving employers to wait for court decisions to see how they are applied in everyday situations. As to the definition of “major life activity,” it remains to be seen what else other than the examples listed in the regulations will be considered “major life activities” now that the EEOC has explained that the term “major” is not to meant to be a demanding standard or relate to whether an activity is of “central importance to daily life.”

With respect to the term “substantially limits” both Congress in drafting the ADAA and the EEOC in drafting the regulations considered whether a new term other than “substantially limits” should be adopted to denote the appropriate level of functional limitation. Both, however, rejected doing so concluding that adopting a new term was not the best way to show disapproval of Sutton and Toyota. They reasoned that retaining the term, clarifying that it is not meant to be a demanding standard and providing guidance regarding its interpretation would help move the focus from the threshold of disability to the primary issue of discrimination. While the EEOC has explained that the question of whether an impairment substantively limits a major life activity should not demand extensive analysis, the question remains as to whether any analysis is necessary or if employers are safest to assume that an impairment that simply “limits” a major life activity satisfies the lower standard.

In light of the regulations, employers should review their disability discrimination policies and practices paying careful attention to the use of the phrases “major life activities,” “substantially limits,” “regarded as” and “mitigating measures.” In particular, they should make sure that medical certification forms for employees’ healthcare practitioners do not provide outdated standards for consideration in determining whether their patients are disabled.

Finally, while the regulations bring the ADA closer to many state laws which broadly define the term disability, employers should remain mindful that they have an obligation to consider the definition of disability, whether state or federal, which is most favorable to the employee.

For more information on this alert, please contact any of the lawyers listed below:

John Adkins,, 617.951.8551
Jenny Cooper,, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group,, 617.951.8340

Los Angeles/Orange County 
Jacqueline Cookerly Aguilera, <, 213.229.8439
Debra Fischer,, 213.680.6418

San Francisco
James Severson,, 415.393.2242

New York
Douglas Schwarz,, 212.705.7437

Mie Fujimoto,, 81.3.6721.3138

This article was originally published by Bingham McCutchen LLP.