On June 17, 2009, the Equal Employment Opportunity Commission held a public meeting and voted 2-1 to adopt proposed regulations implementing the Americans with Disabilities Act Amendments Act of 2008 (”the Act”).  The Act, which was signed into law by President Bush on September 25, 2008 and took effect January 1, 2009, generally lowers the threshold for establishing that an individual is disabled within the meaning of the statute.  The two Democrats, Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin voted in favor, and the Republican, Commissioner Constance Barker, voted against the proposed regulations.

The Commission announced that it will submit the Notice of Proposed Rulemaking (NPRM) to other federal agencies and the OMB for review and coordination, and then, following that process, publish it in the Federal Register for notice and comment.

Vice Chair Griffin presided over the meeting and explained that the Commission, through its proposed regulations implementing the Act, seeks to reverse past court decisions which narrowly interpreted the ADA and limited the scope of the Act’s protections.

Peggy Mastroianni, Associate Legal Counsel, gave an overview of the work done to fashion the rule. Mastroianni emphasized two driving components in the development of the rule: that the definition of disability should “be construed in favor of broad coverage” and “should not demand extensive analysis.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, summarized the proposed changes to EEOC’s existing regulations. The proposed changes attempt to broaden the existing list of examples to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes.” Kuczynski also noted the Commission believed greater specificity in the regulations would increase court deference to the regulations.  The proposed changes include additional examples to the list of “major life activities,” (adding “reaching,” “sitting” and “interacting with others”), as well as additions to the list of “major bodily functions” (adding functions of the “hemic,” “lymphatic” and “musculoskeletal” systems). 

Kuczynski also addressed proposed changes to the language requiring that a disability “substantially limit” a major life activity. The proposed changes lower the current standards for coverage through five rules of construction. Under these rules, (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.”

Also included within the “substantially limits” standard are episodic disabilities or disabilities in remission, so long as those disabilities, when active, would “substantially limit” major life activities. 

The NPRM identifies a number of impairments that will “consistently meet the definition of ‘disability’ because they “will obviously be substantially limiting.” This list includes some obvious choices, like 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 stressed that the express inclusion of certain conditions should never undermine the “individualized assessment that is the hallmark” of this process. Moreover, 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.  

Griffin touted the proposed changes as a good tool for moving back toward Congress’ intention of eliminating discrimination. She added that, following the implementation of the new rules, “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.” Acting Chairman Ishimaru agreed, stating that the implementation of the new rules will hopefully shift away from the further narrowing of the definitions critical to the Act.

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.”