New regulations seek to clarify ADA’s scope

Sign on a wall, Department of Justice

The Department of Justice published new regulations August 11, implementing a 2008 law that sought to counter a series of Supreme Court decisions that had narrowed the scope of the Americans with Disabilities Act.

“This final rule clarifies Congress’s original mandate that eliminating discrimination against people with disabilities requires an expansive definition of what disability means and who the law covers,” said Vanita Gupta, head of the DOJ’s Civil Rights Division, in a news release.  “The Justice Department’s regulation sets forth clear new rules, new examples and detailed guidance to ensure that courts, covered entities and people with disabilities better understand the ADAAA.”

Under the ADA, passed in 1990, disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”

In 1999, the Supreme Court ruled that courts must consider all mitigating measures, such as insulin pumps, when determining the threshold question of whether a person has a disability.

Three years later, the Supreme Court further limited the ADA’s reach by ruling that the law creates a “demanding standard” for demonstrating that an individual has a qualifying disability. Moreover, it ruled that qualifying disabilities must be “permanent or long-term,” which led to the exclusion of coverage of many people with intermittent disabilities, such as epilepsy.

As such, courts regularly interpreted the ADA to exclude from coverage many people with cancer, diabetes, epilepsy, attention deficit hyperactivity disorder and learning disabilities, among other conditions.

The ADA Amendments Act of 2008, signed into law that September by President Bush, overturned these decisions, significantly expanding the scope of the law.

Although this law has been in effect ever since, the new regulations, which went into effect August 11, provide further clarification. Specifically, the regulations state that the term “substantially limits” be “construed broadly in favor of expansive coverage,” and not require “extensive analysis.”

Further, courts should not consider mitigating measures, or whether the person’s disability is “episodic or in remission” when determining if the individual qualifies for the ADA’s protection.

The DOJ rules also provide further clarification on the scope of the “regarded as” prong of the disability definition and the type of “major life activities” that should be used in the disability definition analysis, among other changes.

“The primary issue in a case brought under the ADA should be whether an entity covered under the ADA has complied with its obligations and whether discrimination has occurred, not the extent to which the individual’s impairment substantially limits a major life activity,” the regulations state.

The new regulations apply to state and local government agencies and public accommodations and commercial facilities. The Equal Employment Opportunity Commission, which oversees employment discrimination complaints, issued implementing regulations back in 2011.