The ADA Amendments Act (ADAAA) was signed into law by President George W. Bush on September 25, 2008. On March 25, 2011, and after review of over 600 public comments, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the enforcement of that Act. Check the EEOC’s website at www.eeoc.gov for a summary of the provisions of those regs (Fact Sheet on the EEOC’s Final Regulations).
The Final Regulations are consistent with Congress’ purpose of the ADAAA: to "make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA." The Final Regulations and the revised Interpretive Guidance are intended to refocus courts on the issues of prohibited conduct and reasonable accommodation; the question of whether an individual meets the definition of disability is going to be a lower hurdle when determined in accordance with the new regulations.
The primary emphasis of the Final Regulations is on the "regarded as" prong of the definition of the term “disability.” Most claims of discrimination now will likely be evaluated under the "regarded as" prong with the first two prongs (“actual disability” and “record of a disability”) applying primarily in cases where the individual is seeking a reasonable accommodation. As noted by the EEOC in the revised Interpretive Guidance, Congress expected the first and second prongs of the definition of disability to be used "only by people who are affirmatively seeking reasonable accommodations" and that "[a]ny individual who has been discriminated against because of an impairment – short of being granted a reasonable accommodation or modification – should be bringing a claim under the third prong of the definition."
According to Thomas Bright, a shareholder in Ogletree Deakins’ Greenville, South Carolina office: "The EEOC, in revising the Final Regulations, was attempting to take into consideration the often competing interests of various stakeholders. Many employers and business organizations that submitted comments to the EEOC opposed the inclusion of a per se list of conditions that would always be considered disabilities. Employees and various advocacy groups wanted to see an expansion in the list of per se disabilities. The EEOC steered a middle ground by including a nonexhaustive list of examples of conditions that would likely be considered disabilities, but retained the concept of individualized assessment."
The Final Regulations set forth specific “rules of construction” derived from the ADAAA and its legislative history, and which will be used by courts as guidelines when making determinations regarding disability discrimination cases. Those rules include: a broader construction for the term “substantially limits”; requirement of an “individualized assessment” when determining whether an impairment limits a major life activity; and a statement that an episodic/in remission impairment is a disability if it would substantially limit a major life activity when active. The Final Regulations and the revised Interpretive Guidance make it clear that courts will now spend less time determining coverage under the Act (that is, whether an impairment is actually a disability), and more time determining whether a discriminatory act occurred. The anticipated end result of this refined focus is that more disability discrimination cases will go to trial and fewer will be dismissed on summary judgment.