DOJ’s Disability Rules Amended 21:25, August 14, 2016

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DOJ’s Disability Rules Amended

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On August 11, 2016, the US Department of Justice (DOJ) issued a final rule amending the Americans with Disabilities Act (ADA) regulations to incorporate changes made by the ADA Amendments Act of 2008 (ADAAA). The DOJ regulations prohibit discrimination based on disability in state and local government programs and activities, while similar EEOC regulations prohibit job discrimination by employers with 15 or more employees.

According to the US Department of Labor, Congress enacted the ADAAA to overturn a series of US Supreme Court decisions that interpreted the ADA “in a way that made it difficult to prove that an impairment is a ‘disability.'”

History of the ADA

In enacting the ADA in 1990, Congress defined “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities” of a person.

Over the years, the US Supreme Court narrowed the ADA’s scope, particularly in the area of employment law. In 1999 the Court said that a disability must be evaluated in its “corrected” or “mitigated” state, holding that people are not disabled if they can perform major life activities when using a mitigating measure (Sutton v. United Airlines, Inc. and its companion cases). In 2002 the Court held that the main inquiry is whether a person is unable to perform the variety of tasks central to most people’s daily lives, not whether he or she is unable to perform tasks associated with a specific job (Toyota Motor Manufacturing, Kentucky, Inc. v Williams).

The Toyota Motor Manufacturing case concerned whether “work” qualified as a major life activity for the determination of whether someone was disabled under the ADA. The case was brought by an assembly line worker who had carpal tunnel syndrome. She couldn’t perform the requirements of her job, but she could perform tasks at home, such as taking care of herself. At oral argument Toyota’s lawyer, John Roberts (now the current US Supreme Court Chief Justice), said that the employee couldn’t claim to be disabled because her impairment “was only a problem at work” and that even the EEOC and courts recognized that “there are all sorts of problems when you recognize work as a major life activity.”

In addition, according to the Los Angeles Times, Justice Sandra Day O’Connor speculated that the ADA was meant to protect “people who are wheelchair-bound,” and Justice Antonin Scalia said that the ADA was not intended to cover someone who “lost an arm.”

Although Toyota had conceded that work was a “major life activity” under the ADA, Justice O’Connor expressed doubt about that in her opinion, saying that “there may be some conceptual difficulty in defining ‘major life activities’ to include work.”

Enactment of the ADAAA

It was against this backdrop that Congress enacted the ADAAA in 2008. The ADAAA’s Findings and Purposes stated that “while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of handicap under the Rehabilitation Act of 1973, that expectation has not been fulfilled.”

Congress went on to say that the US Supreme Court had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.”

When it enacted the ADAAA, Congress rejected the Sutton “mitigation” requirement and said that the determination of whether an impairment substantially limits a major life activity must be made without regard to mitigating measures such as medication, prosthetics, hearing aids, etc. (however, the mitigating effects of ordinary eyeglasses or contact lenses can be considered).

Congress also rejected the Toyota Motor Manufacturing requirements that (1) the words “substantially” and “major” must be interpreted strictly to create a demanding standard for qualification as disabled and (2) a major life activity limitation must be “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” In rejecting that argument, Congress chose to define “major life activities” in the ADAAA to include “working.”

“To achieve the remedial purposes of this Act,” said Congress in the ADAAA, “the definition of ‘disability’ . . . shall be construed broadly.”

Amendments to the ADA Regulations

The DOJ published proposed regulations in 2014 to incorporate changes made by the ADAAA. After the notice and comment period, the DOJ made changes to the proposed rules to (1) add Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment, (2) add “writing” as an example of a major life activity, (3) clarify that a covered entity has the burden of establishing that an impairment is “transitory and minor” and therefore not covered by the ADA, and (4) revise and add provisions so that the regulations would conform more closely to the EEOC regulations.

Implications for Organizations

Congress has demonstrated its commitment to defining “disability” in broad terms so that everyone has access to public accommodations, employment, transportation, state and local government services, and telecommunications. Organizations should make sure that their employees and customers have equal access to jobs and services.

In addition, some states, like California, have discrimination laws that offer more protection than the ADA does.

Many people have the impression that the ADA is used mostly to require employers to make expensive job accommodations for new hires. But according to a Job Accommodation Network study that took place between 2008 and 2015, the cost of workplace accommodations isn’t usually high. Employers reported that in 58% of cases the accommodations cost them nothing, while the rest of the time, accommodations cost around $500. And on average, even factoring in new hires, the average employee requesting accommodations has worked with the employer for seven years.

People with disabilities have a great deal to offer employers. Fostering a culture of purpose can help organizations avoid disability discrimination lawsuits and get the most out of their employees. If you’re unsure about how to do this, a case study on Namely, an HR-compliance startup that combined growth and culture with training, provides an inside look.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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