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New EEOC Regulations Expand ADA's Definition of "Disability"

Written by Calfee, Halter & Griswold LLP Sunday, 15 November 2009 21:00

On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published in the Federal Register a long-awaited Notice of Proposed Rulemaking (NPRM) regarding the ADA Amendments Act of 2008 (ADAAA). The ADAAA, effective since January 1, 2009, expands the definition of "disability"

under the Americans with Disabilities Act (ADA), overrules several previous EEOC regulations and United States Supreme Court decisions regarding the ADA which proponents of the ADAAA said unreasonably restricted the ADA's coverage. The EEOC's NPRM sets forth proposed regulations and interpretive guidance regarding the ADAAA, and also allows the public a 60-day period within which comments regarding the proposed regulations can be submitted to the EEOC.

It is clear that the EEOC has embraced the concept that the ADA should be construed in favor of broad coverage “to the maximum extent permitted. To that end, the newly-issued proposed regulations greatly expand the definition of “disability” under the ADAAA and the original ADA, in order to make it easier for an individual to establish that he or she has a disability. According to the EEOC, a case brought under the ADA should not focus on whether the individual has a disability, but whether the individual has suffered any discrimination.

Under the proposed regulations, the scope of a "disability" is expanded substantially. For instance, the definition of a "major life activity" is broadened to include "major bodily functions," such as breathing, immune system function, cell reproduction, sensing functions, and digestive and bowel functions. Moreover, the proposed regulations make it easier for an individual to establish that he or she is “substantially limited” in such a “major life activity.” An impairment will now be considered a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population. Importantly, in order to be considered a “disability,” an impairment does not need to prevent or even significantly restrict the individual from performing a major life activity in order to be considered a disability.

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