Debate about ADA Amendment's Implementation

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.

Comments

[Ric]

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.