The Final Regulations implementing the ADA Amendments Act (ADAAA) signed into law by President George W. Bush on September 25, 2008, were issued by the Equal Employment Opportunity Commission (EEOC) and published in the Federal Register on March 25, 2011. The Final Regulations come after review of more than 600 public comments concerning the Proposed Regulations that were first published in the Federal Register in late 2009. The EEOC also has revised and reissued its Interpretive Guidance on Title I of the ADA to help explain and illustrate the changes in the Regulations.

Consistent with the tone set by Congress when it passed the ADAAA, the Final Regulations make it clear that the primary purpose of the revisions is 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.” This is in keeping with the express intent of Congress that the definition of disability “be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA,” and that the determination of whether an individual has a disability within the protection of the Act “should not demand extensive analysis.” The Final Regulations and the revised Interpretive Guidance are intended to refocus courts on the dual issues of prohibited conduct and reasonable accommodation and away from whether the individual meets the definition of disability.

One way the Regulations and Interpretive Guidance have attempted to accomplish these broad congressional goals is to explain in greater detail how the three prongs of the term “disability” should operate. While the three prongs of the definition (“actual disability,” “record of” and “regarded as”) have remained substantially unchanged, it is the manner in which they should be utilized that has been modified. The Final Regulations place the primary emphasis on the “regarded as” prong of the definition, noting that most claims of discrimination will likely be evaluated solely under the “regarded as” prong with the first two prongs 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 contain other revisions that affect: the “transitory and minor” exception to “regarded as” coverage; the “condition, manner, or duration” of a disability as it relates to a major life activity; and the nine rules of construction for determining whether an impairment substantially limits a major life activity. However, the overriding tenor of the Final Regulations and the revised Interpretive Guidance is to make it clear to all stakeholders that courts should spend less time and effort on determining coverage under the Act and more time determining whether a discriminatory act occurred. The end result of this refined focus in the Final Regulations will be that more ADA cases will go to trial and fewer will be dismissed on summary judgment.

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Ogletree Governmental Affairs, Inc. (OGA), a subsidiary of Ogletree Deakins, is a full service legislative and regulatory affairs consulting firm, dedicated to helping clients solve their problems with the public sector. OGA unites the skills and experience of government relations professionals with the talent of the Firm’s lawyers to provide solutions to regulatory issues outside the courtroom.

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