Last week, the Department of Justice came down with their final regulations implementing the amendments to the ADA with respect to title II and title III of the Americans with Disabilities Act. I had previously written on these proposed regulations back in February 2014, and so I thought it would be a good idea to update that entry. The blog entry is divided into the categories of DOJ final rule and takeaways. As such, it doesn’t make a lot of sense to read just one of the categories, but I suppose that it is possible.

I

DOJ Final Rule

  1. The DOJ did add the major life activities of reaching, sitting, and interacting with others. It also added writing to its non-exhaustive list of major life activities. It also, to match the title I implementing regulations of the EEOC, added the following examples of major bodily functions: special sense organs and skin; genitourinary; cardiovascular; hemic; lymphatic; and musculoskeletal systems. The DOJ makes it quite clear that the list of major life activities is illustrative and that it is neither necessary nor possible to list every major life activity.
  2. The DOJ also added the immune system and circulatory system to those that may be affected by physical impairment.
  3. The DOJ did add a reference to dyslexia as an example of learning disabilities. The phrase used in the final rule is, “dyslexia and other specific learning disabilities.”
  4. The DOJ did add ADHD as an example of a physical or mental impairment.
  5. The DOJ did stick with the nine proposed rules of construction, which we discussed in the above-mentioned blog entry.
  6. With respect to the regarded as prong, DOJ and its regulations make clear that the burden is on the covered entity to establish that objectively an impairment is both transitory and minor before that exception applies. That is, it doesn’t matter whether the employer believes that the impairment is transitory and minor, rather it is an objective standard. Further, the transitory and minor exception is a defense to a claim of discrimination and not part of a plaintiff’s prima facie case, a position which aligns with the EEOC.
  7. It added a phrase in the final rule noting that not all diagnosed impairments automatically trigger coverage under the ADA since you still have to show a substantial limitation, which may be true, but it isn’t going to happen very often.
  8. As it said it would do in the proposed rule, whether an activity is a major life activity is not to be determined by reference to whether it is of central importance to daily life (the Toyota Motor standard). Instead, the standard to use is whether the impairment substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population with respect to its condition, manner, or duration.
  9. Clarified that the Department of Justice does not endorse reliance on similarly situated individuals to demonstrate substantial limitations. It gives a couple of examples: whether an elderly person is substantially limited in a major life activity should be compared to the general population and not to similarly situated elderly individuals; someone with ADHD should be compared to most people in the general population.
  10. With respect to testing entities, in the final rule, DOJ clarifies that private entities offering covered examinations need to make sure any request for required documentation is reasonable and limited to the need for the requested modification, accommodation, or auxiliary aid or service. Further, when considering requests for modification, accommodation, or auxiliary aids or services, the entity should give considerable weight to documentation of past modification, accommodation, or auxiliary aids or services received in similar testing situations or provided in response to an IEP or a 504 plan.
  11. The ADA’s prohibition on assessing the ameliorative effects of mitigating measures applies only to the determination of whether an individual meets the definition of disability AND NOT to the requirement to provide reasonable modifications or testing accommodations.
  12. The availability of mitigating measures has no bearing on whether the impairment substantially limits a major life activity.
  13. The origin of the impairment, whether it’s effect can be mitigated, and any ameliorative effects of mitigating measures that are employed may not be considered in determining if the impairment is substantially limiting.
  14. Whether an impairment is both transitory and minor is a question of fact that is dependent upon individual circumstances.
  15. With respect to predictable assessments, impairments not requiring extensive analysis, DOJ added traumatic brain injury, to the list put forth in the proposed rule.
  16. Makes clear that epilepsy, muscular dystrophy, and multiple sclerosis each affect neurological/brain function.
  17. Facts gathered to establish a diagnosis of an impairment may simultaneously satisfy the requirement for demonstrating limitations on condition, manner, or duration sufficient to show that the impairment is a disability.
  18. The ultimate outcome of an individual’s efforts should not undermine a claim of disability, even if the individual ultimately is able to achieve the same or similar results as someone without the impairment.
  19. DOJ states it believes Congress made its intention clear that the ADA’s protections are such that the focus should be on how persons with disabilities engage in major life activities rather than the ultimate outcome of those activities. So, for example, the capacity to quantify testing grades does not make them inherently more valuable with respect to proving or disproving disability.
  20. With respect to the rules of construction, ameliorative effects of mitigating measures are not to be considered when determining whether an impairment substantially limits a major life activity. There is a non-exhaustive list of mitigating measures and those mitigating measures also include “learned behavioral or adaptive neurological modifications (includes strategy developed by an individual to lessen the impact of an impairment),” as well as psychotherapy, behavioral therapy, physical therapy, and reasonable modifications (includes both informal or undocumented accommodations and modifications as well as those provided through a formal process), or auxiliary aids and services.
  21. With respect to mitigating measures, if a person is utilizing a mitigating measure not on the list, that does not mean that the mitigating measure should be factored in. That is, you would still have to assess the situation without that mitigating measure, unless it is eyeglasses.
  22. With respect to the record of disability prong, any evidence that an individual has a past history of an impairment substantially limiting a major life activity is all that is necessary to establish coverage under that prong.

II

Takeaways:

  1. What the Department of Justice has done by these regulations is matchup by and large with the EEOC regulations implementing title I of the ADA. That certainly helps for consistency.
  2. School systems when it comes to dyslexia are now going to have a much more difficult time of insisting that dyslexia is not a disability covered by the ADA and 504.
  3. The transitory and minor exception means transitory AND minor, and it is an objective standard. It is also an affirmative defense. Finally, it is the Department of Justice’s view that whether an impairment is transitory and minor is a question of fact. As such, it may now be easier for plaintiff’s to survive summary judgment if the transitory and minor exception is involved.
  4. Toyota Motor’s definition of a major life activity no longer applies.
  5. Whether a person has a disability has nothing to do with similarly situated individuals.
  6. DOJ has put the brakes on excessive documentation request by testing entities and made establishing a disability for accommodations by testing entities much easier. On the other hand, while mitigating measures are out with respect to whether a disability exists, they are not out with respect to figuring out what modifications work; a very important distinction for both testing entities and places of education.
  7. The origin of the impairment has nothing to do with whether a person has a disability or not. While this final rule does not cover employment situations since that is the province of the EEOC and their implementing regulations, this is a big deal because I have seen light-duty policies vary in terms of their benefits depending upon how the disability originated. So, there may be a carryover here to the employment arena.
  8. The lists of major life activities and mitigating measures are not exhaustive.
  9. A person’s success through mitigating measures, whether they be through equipment or strategies the individual has developed, does not undermine a claim of disability. So, one wonders how this case would have turned out if this final rule was in place at the time of the decision, particularly in light of DOJ’s view that mitigating measures cannot be factored into whether the person has a disability but can be factored into the accommodation ultimately reached.
  10. The DOJ believes that it should be fairly easy to establish a record of a disability should there be such a record.
  11. Whether a substantial limitation on a major life activity exists, depends upon the condition, manner, or duration of the disability.
  12. Occasionally, you run across a few cases that talk about the need to show similarly situated people with respect to disability discrimination, it is clear from these regulations that the DOJ is having none of it.

2 Responses to DOJ Final Rules Implementing Title II and Title III of the ADA

Many thanks for your informative and insightful posts. I am interested in getting your thoughts on #11.

“The ADA’s prohibition on assessing the ameliorative effects of mitigating measures applies only to the determination of whether an individual meets the definition of disability AND NOT to the requirement to provide reasonable modifications or testing accommodations.”

I do note that, as you point out in the post, not all diagnosed impairments will qualify for coverage under the ADA as a substantial limitation must also be shown. However, I am struggling to see how a testing entity could accept that a candidate is deserving of coverage under the ADA, yet alter or deny their accommodations (assuming accommodations are reasonable and considered a normal alteration for the relevant disability).

Given the emphasis on placing considerable weight on documentation provided by medical professionals in the LSAC settlement, it seems that a testing entity would accept proper documentation as suggesting that a disability is substantially limiting and thus receives coverage under the ADA. Once the disability evidence has been accepted, what leeway is there for the testing entity to carry out its own assessment of the effectiveness of ameliorative measures (assuming there is a clear connection between impact of the disability and the accommodation)?

Thank you for raising an excellent question. What this particular paragraph does if carried out is that it could have a huge impact on persons with disabilities who use mitigating measures, such as, for example, a person, like myself, who is deaf but through the use of hearing aids and lip reading functions entirely in the hearing world. What this provision says is that such a person would be covered as a person with a disability under the ADA, but when figuring out the particular accommodation you could factor mitigating measures into the calculus. The critical question would be whether the modifications of the policies, practices, and procedures for this particular person could be done without creating a fundamental alteration to the test. To my mind, figuring that out requires utilizing an interactive process (where reasonable documentation/information can be requested but not excessive documentation/information), though you will not find an interactive process explicitly mentioned in title II or title III of the ADA. While an interactive process is not explicitly mentioned in title II or title III, I simply can’t figure out how fundamental alteration could be determined without using an interactive process. Those persons with disabilities who do not use mitigating measures, I wouldn’t see much of an effect all. Of course, all of this is very fact specific.

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