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EEOC Changes Criteria For Disability Discrimination

The ADA Amendments Act (ADAAA) was signed into law by President George W. Bush on September 25, 2008. The Equal Employment Opportunity Commission (EEOC) has now issued final regulations implementing the enforcement of the Act. Check the EEOC's website at www.eeoc.gov for a summary of the provisions.

The final regulations are consistent with Congress' purpose for the ADAAA: to make it clearer and arguably 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 regulation and the revised interpretive guidance are intended to refocus courts on the issues of prohibited conduct and reasonable accommodation.

The primary emphasis is on the "regarded as" prong of the definition of the term "disability" as when an individual claims to having been regarded as disabled by his or her employer. This applies primarily in cases where the individual is seeking a reasonable accommodation.

Many employers and business organizations that submitted comments to the EEOC opposed the inclusions 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 seemed to steer an independent ground by including a non-exhaustive list of examples of conditions that would likely be considered disabilities, but retained the concept of individualized assessment. In other words, addressing each person and situation on its own merits.

The final regulations set forth specific "rules of construction", to include a broader construction for the term "substantially limits" a major life activity and requires an "individualized assessment" when determining whether an impairment limits a major life activity. Also, an episodic/ in remission impairment is a disability if it would substantially limit a major life activity when active. The final regulation 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.

Lawyers including myself are more inclined to take such cases where previously we would be met with nothing but frustration given the lack of clarity and guesswork as to what a Court would consider to be a disability within the meaning of the Act. Finally, the Act is meant to do what it is supposed to do allowing Lawyers to focus not so much on what is or is not a disability but whether the employer's actions were discriminatory.

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