From Andy Imparato, AAPD President and CEO (7/10/09):
It is sad that, after all the bipartisan support
for a broad definition of disability in the ADA Amendments Act, Michael
Peterson and David Fram seem so determined to attack EEOC's proposed
regulations interpreting the ADA Amendments Act before they have even been
released by OMB. David Fram, who
testified against the ADA Restoration Act in front of the House Education and
Labor Committee, is right up there with Jeffrey Sutton in my book as a leading
enemy of the ADA.
From the Daily Labor Report (7/6/09):
Portions of EEOC's Proposed ADA Rule May Conflict With Law's Intent,
Speakers Say
By Kevin P. McGowan
An Equal Employment Opportunity Commission proposed rule implementing
the ADA Amendments Act may be open to challenge as inconsistent with
congressional intent, speakers said during a July 1 teleconference
sponsored by the National Employment Law Institute (NELI).
EEOC's proposal, which revises its existing regulations interpreting
the Americans with Disabilities Act, was approved June 17 by a 2-1
commission vote and is currently being reviewed by the White House
Office of Management and Budget and other federal agencies (115 DLR
AA-1, 6/18/09).
Assuming OMB approves, EEOC's proposed rule will be published in the
Federal Register for public comment. Until then, EEOC is not releasing
the text of its proposal, so speakers at the NELI conference based their
remarks on a presentation that EEOC Assistant Legal Counsel Christopher
Kuczynski made at the June 17 commission meeting.
Much of EEOC's proposal faithfully tracks the ADA Amendments Act, which
overturned U.S. Supreme Court decisions that narrowly construed the ADA
and is intended to broaden the interpretation of “disability,” said
conference speakers David Fram, NELI's director of ADA and EEO Services,
and Michael Peterson, associate general counsel and director of labor
and employment law for the HR Policy Association in Washington, D.C.
However, Fram and Peterson said EEOC also deleted key language from the
test for “substantially limits” a major life activity; unilaterally
changed the test for working as a major life activity; and effectively
designated several health conditions as “per se” disabilities
despite the ADA's requirement for individualized assessments of
disability.
Unless EEOC amends those parts of its proposal before it becomes final,
Peterson predicted courts will not defer to EEOC's interpretation and
instead will look to the ADA Amendments Act's legislative history to
reach their own conclusions.
‘Substantially Limited.'
Under the ADA Amendments Act, Congress overturned Toyota Motor Mfg. of
Ky. Inc. v. Williams, 534 U.S. 184, 12 AD Cases 993 (2002), which had
held that in order to show he is “substantially limited” in
performing a “major life activity,” an ADA plaintiff must prove his
condition “significantly restricts” performance of that activity, as
compared to an average person in the general population.
As instructed by Congress, EEOC's proposed rule deletes the
“significantly restricts” language from its current regulations
defining “substantially limits,” Fram said. He added, however, that
EEOC apparently did not replace “significantly restricts” with any
alternative definition of “substantially limits.” Congress was
silent regarding a new standard and left it up to EEOC, Fram said. But
EEOC “just punted,” Fram said. The proposed rule “just plain does
not address this issue at all,” he said.
Peterson said he has heard EEOC staff tried to come up with a new
definition of “substantially limits” to replace “significantly
restricts” but that it was ultimately rejected and not included in the
proposed rule.
More troubling is EEOC's proposed deletion of language from its
existing regulations that instructs courts to consider the “condition,
manner, and duration” of an impaired individual's performance of a
major life activity compared to the average person to determine if the
individual is “substantially limited,” Peterson said. Congress never
instructed EEOC to touch the “condition, manner, and duration”
language, which is cited with approval in a House committee report and
the Senate managers' report on the ADA Amendments Act, he said.
“EEOC has simply deleted that analytical method from the
deliberation” regarding “substantially limits,” Peterson said. He
asserted it is clear from the act's legislative history that Congress
intended the “condition, manner, or duration” piece to remain in the
“substantially limits” analysis. For employers currently engaged in
ADA litigation, Peterson said he would advise that they cite the
legislative history to persuade courts that the “condition, manner,
and duration” language remains part of the amended act.
Unless EEOC amends parts of its proposal before it becomes final,
Michael Peterson of the HR Policy Association predicted courts will not
defer to EEOC's interpretation.
Unsettled Question of Evidence
As for evidence relevant to the “substantially limits” inquiry,
Fram observed that in Toyota, the Supreme Court said courts should
consider everyday tasks a disability plaintiff can perform as well as
activities a plaintiff cannot do. EEOC held a different view, saying it
was only relevant in deciding whether an individual is “substantially
limited” to consider what the impaired individual cannot do, Fram
said.
Fram suggested it is an open issue whether the ADA Amendments Act
reverses Toyota entirely, or only with respect to the Supreme Court's
discussion of the scope of major life activities and its “severely
restricts” interpretation of substantially limited. Fram contended the
act may not reverse Toyota‘s discussion of the evidence relevant to
“substantially limits” and that employers defending ADA claims
still may introduce evidence regarding what an impaired plaintiff can do
with respect to major life activities.
EEOC's proposed rule takes the opposite view, that under the ADA
Amendments Act, it is only relevant to consider what plaintiffs cannot
do, Fram said. From a plaintiff's perspective, “this is great” if
the evidence is so limited but from an employer's perspective, “it's
terrible,” he said. It will be “very interesting” to see whether
EEOC's interpretation remains in its final rule, and if so, whether
courts will agree, Fram said.
Peterson said that based on the act's legislative history, it is clear
courts should not consider an individual's “attainments” in
determining whether an individual is “substantially limited” in a
major life activity. At the EEOC meeting June 17, Kuczynski provided the
example that an individual alleging a learning disability who graduates
from college may still be disabled under the act, Peterson noted.
Peterson, however, said an individual's “attainments” are distinct
from evidence regarding what plaintiffs can do with respect to major
life activities. He said the latter is “an issue not specifically
addressed” by the ADA Amendments Act and that business negotiators had
fought against bill or report language that said Congress was
overturning every aspect of Toyota.
Peterson said he does not think Congress barred courts from considering
what a plaintiff can do when determining whether an individual is
substantially limited. “This might be an issue to focus on” for
employer representatives submitting comments to EEOC, Fram said.
‘Mitigating Measures.'
The ADA Amendments Act provides that courts generally should not
consider the ameliorative effects of “mitigating measures,” such as
prostheses, drugs, or other means taken to correct or control an
impairment, in determining whether an individual is disabled. But courts
may consider an individual's use of ordinary eyeglasses or contact
lenses “intended to fully correct visual acuity” in deciding whether
the individual is substantially limited in seeing.
Fram said EEOC's proposal that courts look at plaintiffs without regard
to “surgical intervention” raises some troubling questions.
“That's not in the law,” said Fram, adding that if taken
literally, “this is something that really expands” ADA coverage. He
questioned whether an individual who required surgery, no matter how
long ago and regardless of the success of that surgery, has an automatic
“record of” disability claim under EEOC's interpretation.
Fram said Kuczynski's description of the ordinary eyeglass exception to
mitigating measures indicates EEOC's position is that courts should
consider such measures only when the “actual effect” is to
completely correct an individual's vision. Fram said there's a
disconnect between the act's wording-“intended to fully correct” an
individual's vision-and EEOC's formulation that courts should not
consider eyeglasses or contact lenses that are not completely
effective.
EEOC “seems to have adopted an ‘effects' standard,” Peterson
agreed. “As long as EEOC is targeting ‘effect' instead of
‘intent,' ” in its proposal regarding corrective lenses, “they
are in major trouble” on this issue, Peterson said.
Change in ‘Working' Criticized
Fram and Peterson also criticized EEOC's apparent decision to change
the test for whether an individual is substantially limited in the major
life activity of working. Peterson said that since the Rehabilitation
Act was passed in the 1970s, courts have required individuals alleging a
substantial limitation in working to show that their condition impedes
them from performing a class of jobs or broad range of jobs.
Under the ADA Amendments Act and EEOC's proposed rule, an individual
does not have to show he is substantially limited in working if he can
demonstrate a substantial limitation in some other major life activity,
Fram noted. But EEOC's proposal also provides that if a plaintiff
asserts a substantial limitation in working, he must show he is disabled
in a “type of job” rather than in a class of jobs or broad range of
jobs.
Congress never indicated either in the act or in committee reports that
it wanted to discard the “class or broad range of jobs” test,
Peterson said. “This may be EEOC's most problematic point,” Peterson
said. There was “absolutely no discussion” by Congress regarding
definition of the major life activity of working and the “class of
jobs or broad range of jobs” language originated in Rehabilitation Act
case law, which Congress specifically endorsed as the model for ADA
interpretation, Peterson said.
“This new definition from EEOC simply won't stand up,” Peterson
said. He predicted “there either will be some changes” to EEOC's
proposal or, if it adheres to its new test, “courts will disregard
it.”
No ‘Per Se' Disabilities
The speakers said EEOC also overstepped by listing certain conditions
that Kuczynski said will almost always be considered disabilities
without the need for extended analysis by the courts. Among the
conditions that Kuczynski mentioned are cancer, multiple sclerosis,
diabetes, and AIDS, Fram noted.
Fram objected that EEOC's proposed list of what he called “per se
disabilities” is at odds with the ADA's requirement of
“individualized assessments” of a person's particular condition
to determine if it is “substantially limiting” and therefore a
covered disability. Peterson said some language in various committee
reports supports EEOC's approach, as Congress expressed frustration that
courts had thwarted the ADA's original intent by denying coverage to
persons with cancer, diabetes, epilepsy, and other serious ailments.
Peterson, however, said the legislative history “also goes to great
lengths to say ‘you're still dealing with a functional analysis' ”
and that the ADA requires “an individualized assessment” of a
person's condition. The notion of “per se” disabilities “runs
against the grain” of congressional intent, as seen in committee
reports on the original ADA in 1990, Peterson said.
Fram pointed out that a “per se” list of disabilities in the
proposed ADA Restoration Act was scrapped and not included in the ADA
Amendments Act. Peterson, one of the business representatives who
negotiated the bill, said negotiators from both the disability and
employer communities dropped the list in part to avoid creating a
“hierarchy” of disabilities.
No on Retroactivity
Asked whether the ADA Amendments Act is retroactive, Fram said EEOC
Associate Legal Counsel Peggy Mastroianni “carefully” answered that
question at EEOC's June 17 meeting by saying that courts so far are
ruling the new law does not apply to conduct predating its Jan. 1, 2009,
effective date. Peterson concurred that EEOC will take the position the
ADA Amendments Act is not retroactive.
Fram added, however, that he would not be surprised if EEOC asserts
that its regulations, when they do become final, are retroactive to Jan.
1, 2009, because they merely clarified interpretation of the ADA in
light of the new law. He said it might be prudent for employers to start
reviewing their policies now to conform with EEOC's proposal.
As for the timing of a final rule, Fram said the OMB review period is
expected to “take a couple months” and that once EEOC publishes a
proposed rule, there will be at least 60 days for public comment. EEOC
then would have to review those comments and potentially change its
proposal before issuing a final rule.
It seems like folks are focussing on the bark of one tree in the forest... Does it really matter who is determined to have a "legitimate" disability? I thought the most important thing was determining if the actions taken were disability-related. If an employer makes an employment-related decision based on the employees (real or perceived) disability, there are problems.
Posted by: Ric | July 13, 2009 at 11:43 AM