Last week, the Department of Justice proposed rules implementing title II and title III of the ADA in light of the amendments to the ADA. I’m not going to go into depth here, but I thought I’d go over some particularly significant items in the proposed rule. Of course, what follows is not comprehensive and is not meant to be a substitute for thoroughly reading the rules yourself.

1. What DOJ essentially did was adopt the EEOC regulations implementing title I of the ADA. That includes adding the major life activities added by the EEOC of reaching, sitting, and interacting with others. In particular, the major life activity of interacting with others could have a huge impact on students with disabilities at all levels of education. There are many disabilities which would limit the ability of a person to interact with others, such as: anxiety, autism, possibly ADHD, etc.

2. With respect to physical and mental impairment, DOJ is proposing to add the immune system and circulatory system to those that may be affected by physical impairment.

3. Also, with respect to physical and mental impairment, DOJ is proposing to add a reference to dyslexia as an example of a specific learning disability falling within the phrase, “physical or mental impairment.” The reasoning is that they have become aware that some entities mistakenly believe that dyslexia is not a clinically diagnosable impairment. In fact, the Atlanta Journal-Constitution (to read the full article, unless you are a subscriber to the Atlanta Journal-Constitution, which I am, you will have to jump through some additional hoops to read it), just within the last couple of weeks, had a big article about how school systems are simply refusing to modify their programs and activities and/or offer special services under IDEA on the belief that dyslexia is not a disability (keep in mind that IDEA’s view of a disability is quite a bit different than the view of § 504 of the Rehabilitation Act and the ADA). That said, K-12 schools have to comply with § 504 of the Rehabilitation Act and title II or title III of the ADA as well. Using the phrase, “such as dyslexia” means that there is room for other learning disabilities besides dyslexia that may fall within the definition of specific learning disability. In fact, DOJ fully expects compliance costs to go up with respect to making modifications to accommodate students with learning disabilities.

4. DOJ is proposing to add several rules of construction with regards to determining whether an impairment substantially limits an individual in a major life activity. These rules of construction appear in virtually identical separate sections of the regulations, one devoted to title II and another devoted to title III. Those rules of construction are:

A. The term “substantially limits,” is to be construed broadly in favor of expansive coverage to the maximum extent permitted by the ADA. “Substantially limits” is not meant to be a demanding standard. By saying “substantially limits,” is not meant to be a demanding standard, that is likely to have a huge impact on colleges and universities , K-12, and on testing entities in two respects. First, many students that come into colleges and universities from the IDEA world have to submit new and independent documentation to their colleges and universities in order to receive accommodations from their colleges and universities for their disabilities. Now colleges and universities are going to have to be more careful as to just how much documentation they insist upon. Also, if the IDEA documentation is current or relatively new, one wonders about the viability of insisting upon new independent documentation with respect to the disability in light of these regulations.

Second, many testing entities, such as the LSAT, medical licensing examiners, etc. require extensive documentation before they will accommodate a student with a disability on their exams. That practice of requiring extensive documentation before a student will be accommodated on their exams is now called into question. That said, the testing entities are still under no obligation to fundamentally alter the nature of the test, but it should become much easier now for a person with a learning disability and/or MH issue to receive accommodations on these tests.

B. An impairment is 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. That is, an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. This is an identical position taken by the EEOC in their implementing regulations of the amendments act. See also paragraph D below.

C. The primary object of attention in cases under title II or Title III of the ADA should be whether the title II or title III entity has complied with their obligations and whether discrimination has occurred and not on the extent to which an individual’s impairment substantially limits a major life activity. Therefore, the threshold issue of whether the impairment substantially limits a major life activity should not demand extensive analysis. Again, this echoes the EEOC view. See also paragraph A above.

D. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, that assessment shall be interpreted and applied to require a degree of functional limitation the lower than the standard for substantially limits that applied prior to the ADA amendments act. This particular paragraph is referring to how the ADA amendments act overruled the case of Toyota Motor, Kentucky v. Williams, 534 U.S. 184 (2002), where the United States Supreme Court held that for a person to be substantially limited in the major life activity of performing manual tasks, that person has to be severely restricted or prevented from performing that major life activity. That standard was then being applied across all disabilities by a variety of cases.

E. The comparison of an individual’s performance of the major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence, though such scientific, medical, or statistical evidence can be used where appropriate. This echoes the EEOC position. Also, see paragraph A above.

F. The determination of whether the impairment substantially limits a major life activity has to be made without regards to mitigating measures. The only exception being, ordinary eyeglasses or contact lenses are considered in whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses intended to fully correct visual acuity or to eliminate refractive error. This is a provision actually demanded by the amendments to the ADA. As I point out in the fourth edition of my book, the provision makes sense because with the exception of ordinary eyeglasses or contact lenses, everything else that ameliorates a disability doesn’t cure a disability at all, rather it just compensates for it.

G. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Again, this echoes the EEOC, and it’s a change required by the amendments to the ADA, which specifically contains this mandate.

H. An impairment that substantially limits a single major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment. Again, echoing the EEOC, and making the statement that case law holding otherwise is not correct.

I. The six-month transitory part of the transitory and minor exception that deals with a person being regarded as having a disability does not apply to the, “actual disability” or “record of,” prongs of the definition of disability. That is, the effects of an impairment expected to last less than six months can be substantially limiting within the meaning of this section with respect to a person alleging an actual disability or having a record of a disability. This also echoes the EEOC and gets behind the recent Fourth Circuit case of Summers v. Altarum Institute, Corporation. I would expect that this particular rule of construction would also be a game changer because, especially when it comes to students, they frequently injure themselves and over time can recover quite nicely. Some of those injuries can be quite serious.

In short, I encourage everyone to thoroughly read the proposed regulations and if you so desire, comment on them as well. The time for commenting ends March 31, 2014. In many ways, these regulations are expected because it is important for the EEOC and the DOJ to be on the same page, but since the context is different between DOJ, which has jurisdiction over title II and title III of the ADA, and the EEOC, which has jurisdiction over title I of the ADA, they impact things differently.

2 Responses to DOJ regulations implementing title II and title III of the ADA amendments act: where’s the impact?

In a related matter, the Department of Justice just published a final rule increasing the civil monetary penalties for violations of title III of the ADA. The increase is due to inflation. Therefore, the civil monetary penalty for a first violation of title III of the ADA will be not to exceed $75,000 for a violation occurring after April 28, 2014 and not to exceed $150,000 for any subsequent violation occurring after April 28, 2014. This is up from $55,000 and $110,000 respectively. The final rule can be found at
http://www.ada.gov/fed-reg-monetary-penalties.htm

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