By a 2-1 vote on June 17th, the Equal Employment Opportunity Commission approved a draft Notice of Proposed Rulemaking implementing the Americans with Disabilities Amendments Act of 2008. The draft NPRM now goes to the Office of Management and Budget for review. Under Executive Order 12866, OMB is required to circulate the draft notice to agencies for comment.

With only three current Commissioners, the draft NPRM drew the approval of Acting Chair Stuart J. Ishimaru and Acting Vice Chair Christine M. Griffin. Commissioner Constance Barker voted against its issuance contending the proposed regulations go beyond the changes envisioned by Congress in passing the ADAAA.

In opening remarks, Griffin, a former Executive Director of the Disability Law Center in Boston, said: Since 1990, we have watched the courts chip away at what it means to be a person with a disability. Instead of focusing on whether an employer’s actions were illegally motivated by the fact that their employee had a disability, the courts have spent the last 19 years forcing people with disabilities like epilepsy and diabetes, or psychiatric disabilities to prove that they are, in fact, disabled or disabled enough to be covered by the ADA.

This long fight for civil rights for people with disabilities has now reached another milestone. Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken. The purpose of the ADA Amendments Act is clear and straightforward and these regulations reflect that.

Although the draft NPRM is not yet public, a presentation to the Commission by Assistant Legal Counsel Christopher J. Kuczynski at last Wednesday’s meeting gave the first insight into how the Commission will interpret and implement the ADA amendments. Often the Commission supplements its regulations through Enforcement Guidance memoranda that include specific examples of how the Commission intends its regulations to be applied. According to Kuczynski, the proposed ADA proposed regulations depart from that approach and specifically include examples to be “more helpful to individuals protected by the law, employers required to comply with it, and courts called upon to resolve disputes.”

One of the most significant changes brought about by the ADAAA was to definition of what it means to be “substantially limited” in a major life activity. The ADAAA specifically rejected both Supreme Court and EEOC definitions requiring that an individual demonstrate that he or she was “significantly” or “severely” restricted in the performance of a major life activity as compared to the average person in the general population as creating too high of a threshold for coverage under the ADA. Congress explicitly instructed the EEOC to revise its regulation defining substantial limitation.

From Kuczynski’s remarks, it does not appear the draft regulations contain a precise definition of “substantially limited,” instead focusing on “rules of  construction” designed to assist in determining whether an individual has a disability under the ADA. Those rules of construction, according to Kuzczinski, include:

Rule No. 1: “[T]he definition of ‘substantially limited’ should be construed broadly to the maximum extent allowable under the ADA; and the determination of whether someone has a disability should generally not demand extensive analysis.”

The rule is merely a restatement of the language of the ADAAA and provides only general guidance. Yet, the rule is significant in that it specifically overrules the holdings of the Supreme Court in Sutton v. United Air Lines, 527 U.S.471 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002) that the ADA definition of an individual with a disability needed to be narrowly construed.

Rule No. 2: “[A]n individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform “activities of central importance to daily life.’”

The second rule is, again, largely a restatement of the language of the ADAAA overruling Toyota. However, the draft regulation does include some examples as to how the rule would be applied:

For example, someone with a twenty-pound lifting restriction of more than short duration does not have to show that he is substantially limited in performing activities of central importance to daily life requiring lifting. Someone who is substantially limited in seeing as the result of monocular vision (e.g., because of a limited visual field and/or lack of depth perception) need not demonstrate how the monocular vision substantially limits activities of central importance to daily life that require seeing.

Rule No. 3: “[A]n impairment that substantially limits one major life activity need not limit other major life activities to be substantially limiting.”

While the third rule also is a restatement of what the ADAAA says, the draft regulations again contain clarifying examples:

Someone with diabetes whose endocrine function (i.e.ability to produce insulin) is substantially limited need not also show that he is substantially limited in eating or any other major life activity. An individual whose normal cell growth is substantially limited due to cancer need not also show that she is substantially limited in working or any other major life activity.

Rule No. 4: The “comparison of an individual’s limitation to that of most people in the general population often may be made using a common-sense analysis without resorting to scientific or medical evidence.”

The fourth construction rule may be the one to generate the most controversy because it appears to create categories of per se disabilities that would seem to contradict the ADA’s original intent, and one not abandoned in the ADAAA, that the determination of whether an individual has a disability is matter for an “individualized inquiry.”

The reality, however, is that such categories have always existed. For example, no “individualized inquiry” was necessary under the original ADA for an individual who has been totally and permanently blind or deaf since birth. Common sense dictates that such individuals are individuals with disabilities. The rule, instead, reflects congressional intent to both lower the threshold of what it means to be substantially limited and expand the definition of major life activities.

Examples of the application of the fourth rule include:

For example, someone with epilepsy will meet the definition of disability because he is substantially limited in major life activities such as functions of the brain or, during a seizure, functions such as seeing, hearing, speaking, walking, or thinking. Someone with diabetes will meet the definition of disability because he is substantially limited in functions of the endocrine system.

The fourth rule of construction shows up again in a proposed amendment to 29 CFR 1630.2(j)(5) that identifies “certain impairments that will obviously be substantially limiting—impairments that because of certain characteristics associated with them, will consistently meet the definition of ‘disability.’”

According to Kuczinski:

In addition to examples such as blindness, deafness, intellectual disabilities (formerly called mental retardation), partially or completely missing limbs, and mobility impairments requiring the use of a wheelchair, the proposed rule includes: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, and major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia.

It is important to note three points about subsection (j)(5). The ADA Amendments Act’s legislative history lends support to the view that impairments like those in subsection (j)(5) consistently will meet the definition of “disability.” The Amendments Act Report of the House Committee on the Judiciary, at page 6, states that Congress modeled the ADA definition of disability on the definition contained in the Rehabilitation Act, and said it wished to return courts to the way they had construed that definition. Describing this goal, the Committee report states that courts had interpreted the Rehabilitation Act definition “broadly to include persons with a wide range of physical and mental impairments such as epilepsy, diabetes, multiple sclerosis, and intellectual and developmental disabilities,” even where a mitigating measure lessened their impact.

Second, the approach taken to the listed impairments does not undermine the importance of the “individualized assessment” that is the hallmark of ADA analysis not only for judges and lawyers, but for managers, supervisors, and human resource professionals committed to voluntary compliance with the law. However, the impairments listed in subparagraph (j)(5) are ones that should be found to be substantially limiting each time the individualized analysis is applied to them. For example, just as application of the individualized assessment to someone who is blind or deaf will consistently establish that the individual is substantially limited in seeing or hearing, application of the individualized assessment to someone with cancer will consistently reveal that the individual is substantially limited in normal cell growth. Application of the individualized assessment to someone who has diabetes will consistently reveal a substantial limitation in endocrine function. An individualized assessment of someone with multiple sclerosis or muscular dystrophy will consistently reveal substantial limitations in major life activities including neurological functions, walking, performing manual tasks, seeing, speaking, or thinking.

Third, the fact that the impairments listed in subsection (j)(5) will consistently meet the definition of “disability,” does not automatically mean that individuals with those impairments will prevail in litigation or will be entitled to any accommodations they might request. An individualized assessment will still be necessary to determine issues such as whether an accommodation is needed, whether an individual with a disability is qualified, whether an accommodation would pose an undue hardship, whether a covered individual would pose a direct threat, and, in an intentional discrimination case, whether an employer took a prohibited action on the basis of a disability.

Rule No. 5: “[T]he fifth rule of construction . . . makes it clear that impairments that last for fewer than six months may still be substantially limiting.”

The rule, according to Kuczinski, is intended to address possible confusion created by the ADAAA provision that redefines the so-called “third prong” of the definition of an individual with a disability, or the “regarded as” prong. The ADAAA provides that when an employment action is based on an impairment, the impairment need not be regarded as substantially limiting for an individual to be “regarded as” having a disability. The provision exempts impairments of six months or less.

Although Kuczinski characterized the rule as not being a departure from existing policy under the ADA, that’s a matter of interpretation. Indeed, prior Commission case law has generally held that impairments of six months or less are not substantially limiting.

The draft regulations also address the ADAAA changes regarding how the ameliorative effects of mitigating measures should not be considered in determining if an impairment is substantially limiting and a new definition of the major life activity of working.

For a complete text of Kuczinski’s remarks on the draft ADAAA regulations go to the Commission’s website

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