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.
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