Hunton Employment & Labor Perspectives

Disability discrimination claims have long been difficult for employees to pursue in court. Although employers are often grappling with reasonable accommodation and leave issues in the workplace, such issues have typically not spilled into the courtroom. One reason for that has been the difficulty in proving an employee has a “disability.” The final regulations issued by the EEOC in March 2011 could change all of that. The new regulations, interpreting the ADA Amendments Act of 2008 (ADAAA) expand the definition of “disability” and otherwise remove several impediments to pursuing lawsuits under the ADA. This should lead to an increase in ADA litigation.

Generally speaking, the ADAAA will make it easier for individuals to establish ADA protection. The ADA’s three-pronged definition of “disability” remains the same:

• a physical or mental impairment that substantially limits one or more major life activities;
• a record (or past history) of such an impairment; or
• being regarded as having a disability.

However, the new law makes it clear that the definition must be interpreted in favor of broad coverage, extending protection to many individuals who might have been previously denied coverage. 

Some specific highlights include:

• Relaxing the definition of “substantial limitation.” Now, the impairment need not prevent or significantly restrict a major life activity to be considered substantially limiting.
• Expanding the scope of “major life activities” to include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The regulations also state that major bodily functions include the operation of an individual organ within a body system (e.g., the operation of the kidney, liver, or pancreas).
• Specific examples of impairments are listed in the regulations and include deafness, blindness, intellectual disability (formerly termed “mental retardation”), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
• Positive effects from an individual’s use of one or more “mitigating measures” (other than ordinary eyeglasses and contact lenses) must be ignored in determining if an impairment substantially limits a major life activity. However, mitigating affects may still be considered for purposes other than determining whether the impairment is substantially limiting.
• Coverage is extended to impairments that are episodic or in remission (such as cancer and epilepsy), so long as the impairment is substantially limiting when active.

The regulations also make it easier for individuals to establish coverage under the “regarded as” prong of the definition of disability. The focus is on how a person has been treated because of a physical or mental impairment, rather than on what an employer may have believed about the nature of the person’s impairment. The regulations clarify, however, that an individual must be covered under the first or second prongs (actual or record of disability) in order to qualify for a reasonable accommodation.