[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Rules and Regulations]
[Pages 16977-17017]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6056]



[[Page 16977]]

Vol. 76

Friday,

No. 58

March 25, 2011

Part III





Equal Employment Opportunity Commission





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29 CFR Part 1630



Regulations To Implement the Equal Employment Provisions of the 
Americans With Disabilities Act, as Amended; Final Rule

Federal Register / Vol. 76 , No. 58 / Friday, March 25, 2011 / Rules 
and Regulations

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1630

RIN 3046-AA85


Regulations To Implement the Equal Employment Provisions of the 
Americans With Disabilities Act, as Amended

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Final Rule.

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SUMMARY: The Equal Employment Opportunity Commission (the Commission or 
the EEOC) issues its final revised Americans with Disabilities Act 
(ADA) regulations and accompanying interpretive guidance in order to 
implement the ADA Amendments Act of 2008. The Commission is responsible 
for enforcement of title I of the ADA, as amended, which prohibits 
employment discrimination on the basis of disability. Pursuant to the 
ADA Amendments Act of 2008, the EEOC is expressly granted the authority 
to amend these regulations, and is expected to do so.

DATES: Effective Date: These final regulations will become effective on 
May 24, 2011.

FOR FURTHER INFORMATION CONTACT: Christopher J. Kuczynski, Assistant 
Legal Counsel, or Jeanne Goldberg, Senior Attorney Advisor, Office of 
Legal Counsel, U.S. Equal Employment Opportunity Commission at (202) 
663-4638 (voice) or (202) 663-7026 (TTY). These are not toll-free-
telephone numbers. This document is also available in the following 
formats: Large print, Braille, audio tape, and electronic file on 
computer disk. Requests for this document in an alternative format 
should be made to the Office of Communications and Legislative Affairs 
at (202) 663-4191 (voice) or (202) 663-4494 (TTY) or to the 
Publications Information Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION:

Introduction

    The ADA Amendments Act of 2008 (the Amendments Act) was signed into 
law by President George W. Bush on September 25, 2008, with a statutory 
effective date of January 1, 2009. Pursuant to the Amendments Act, the 
definition of disability under the ADA, 42 U.S.C. 12101, et seq., shall 
be construed in favor of broad coverage to the maximum extent permitted 
by the terms of the ADA as amended, and the determination of whether an 
individual has a disability should not demand extensive analysis. The 
Amendments Act makes important changes to the definition of the term 
``disability'' by rejecting the holdings in several Supreme Court 
decisions and portions of the EEOC's ADA regulations. The effect of 
these changes 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. Statement of the Managers to Accompany S. 3406, The 
Americans with Disabilities Act Amendments Act of 2008 (2008 Senate 
Statement of Managers); Committee on Education and Labor Report 
together with Minority Views (to accompany H.R. 3195), H.R. Rep. No. 
110-730 part 1, 110th Cong., 2d Sess. (June 23, 2008) (2008 House Comm. 
on Educ. and Labor Report); Committee on the Judiciary Report together 
with Additional Views (to accompany H.R. 3195), H.R. Rep. No. 110-730 
part 2, 110th Cong., 2d Sess. (June 23, 2008) (2008 House Judiciary 
Committee Report).
    The Amendments Act retains the ADA's basic definition of 
``disability'' as an impairment that substantially limits one or more 
major life activities, a record of such an impairment, or being 
regarded as having such an impairment. However, it changes the way that 
these statutory terms should be interpreted in several ways, therefore 
necessitating revision of the prior regulations and interpretive 
guidance contained in the accompanying ``Appendix to Part 1630--
Interpretive Guidance on Title I of the Americans with Disabilities 
Act,'' which are published at 29 CFR part 1630 (the appendix).
    Consistent with the provisions of the Amendments Act and Congress's 
expressed expectation therein, the Commission drafted a Notice of 
Proposed Rulemaking (NPRM) that was circulated to the Office of 
Management and Budget for review (pursuant to Executive Order 12866) 
and to federal executive branch agencies for comment (pursuant to 
Executive Order 12067). The NPRM was subsequently published in the 
Federal Register on September 23, 2009 (74 FR 48431), for a sixty-day 
public comment period. The NPRM sought comment on the proposed 
regulations, which:

--Provided that the definition of ``disability'' shall be interpreted 
broadly;
--Revised that portion of the regulations defining the term 
``substantially limits'' as directed in the Amendments Act by providing 
that a limitation need not ``significantly'' or ``severely'' restrict a 
major life activity in order to meet the standard, and by deleting 
reference to the terms ``condition, manner, or duration'' under which a 
major life activity is performed, in order to effectuate Congress's 
clear instruction that ``substantially limits'' is not to be 
misconstrued to require the ``level of limitation, and the intensity of 
focus'' applied by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. 
Williams, 534 U.S. 184 (2002) (2008 Senate Statement of Managers at 6);
--Expanded the definition of ``major life activities'' through two non-
exhaustive lists:
--The first list included activities such as caring for oneself, 
performing manual tasks, seeing, hearing, eating, sleeping, walking, 
standing, sitting, reaching, lifting, bending, speaking, breathing, 
learning, reading, concentrating, thinking, communicating, interacting 
with others, and working, some of which the EEOC previously identified 
in regulations and sub-regulatory guidance, and some of which Congress 
additionally included in the Amendments Act;
--The second list included major bodily functions, such as functions of 
the immune system, special sense organs, and skin; normal cell growth; 
and digestive, genitourinary, bowel, bladder, neurological, brain, 
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive functions, many of which were 
included by Congress in the Amendments Act, and some of which were 
added by the Commission as further illustrative examples;
--Provided that mitigating measures other than ``ordinary eyeglasses or 
contact lenses'' shall not be considered in assessing whether an 
individual has a ``disability'';
--Provided that an impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active;
--Provided that the definition of ``regarded as'' be changed so that it 
would no longer require a showing that an employer perceived the 
individual to be substantially limited in a major life activity, and so 
that an applicant or employee who is subjected to an action prohibited 
by the ADA (e.g., failure to hire, denial of promotion, or termination) 
because of an actual or perceived impairment will meet the ``regarded 
as'' definition of disability, unless the impairment is both 
``transitory and minor'';
--Provided that actions based on an impairment include actions based on

[[Page 16979]]

symptoms of, or mitigating measures used for, an impairment;
--Provided that individuals covered only under the ``regarded as'' 
prong are not entitled to reasonable accommodation; and,
--Provided that qualification standards, employment tests, or other 
selection criteria based on an individual's uncorrected vision shall 
not be used unless shown to be job related for the position in question 
and consistent with business necessity.

    To effectuate these changes, the NPRM proposed revisions to the 
following sections of 29 CFR part 1630 and the accompanying provisions 
of the appendix: Sec.  1630.1 (added (c)(3) and (4)); Sec.  
1630.2(g)(3) (added cross-reference to 1630.2(l)); Sec.  1630.2 (h) 
(replaced the term ``mental retardation'' with the term ``intellectual 
disability''); Sec.  1630.2(i) (revised definition of ``major life 
activities'' and provided examples); Sec.  1630.2(j) (revised 
definition of ``substantially limits'' and provided examples); Sec.  
1630.2(k) (provided examples of ``record of'' a disability); Sec.  
1630.2(l) (revised definition of ``regarded as'' having a disability 
and provided examples); Sec.  1630.2(m) (revised terminology); Sec.  
1630.2(o) (added (o)(4) stating that reasonable accommodations are not 
available to individuals who are only ``regarded as'' individuals with 
disabilities); Sec.  1630.4 (renumbered section and added Sec.  
1630.4(b) regarding ``claims of no disability''); Sec.  1630.9 (revised 
terminology in Sec.  1630.9(c) and added Sec.  1630.9(e) stating that 
an individual covered only under the ``regarded as'' definition of 
disability is not entitled to reasonable accommodation); Sec.  1630.10 
(revised to add provision on qualification standards and tests related 
to uncorrected vision); and Sec.  1630.16(a) (revised terminology).
    These regulatory revisions were explained in the proposed revised 
part 1630 appendix containing the interpretive guidance. The Commission 
originally issued the interpretive guidance concurrent with the 
original part 1630 ADA regulations in order to ensure that individuals 
with disabilities understand their rights under these regulations and 
to facilitate and encourage compliance by covered entities. The 
appendix addresses the major provisions of the regulations and explains 
the major concepts. The appendix as revised will be issued and 
published in the Code of Federal Regulations with the final 
regulations. It will continue to represent the Commission's 
interpretation of the issues discussed in the regulations, and the 
Commission will be guided by it when resolving charges of employment 
discrimination under the ADA.

Summary and Response to Comments

    The Commission received well over 600 public comments on the NPRM, 
including, among others: 5 comments from federal agencies that had not 
previously commented during the inter-agency review process under E.O. 
12067 or the Office of Management and Budget review process under E.O. 
12866; 61 comments from civil rights groups, disability rights groups, 
health care provider groups, and attorneys, attorney associations, and 
law firms on their behalf; 48 comments from employer associations and 
industry groups, as well as attorneys, attorney associations, and law 
firms on their behalf; 4 comments from state governments, agencies, or 
commissions, including one from a state legislator; and 536 comments 
from individuals, including individuals with disabilities and their 
family members or other advocates. Each of these comments was reviewed 
and considered in the preparation of this final rule. The Commission 
exercised its discretion to consider untimely comments that were 
received by December 15, 2009, three weeks following the close of the 
comment period, and these tallies include 8 such comments that were 
received. The comments from individuals included 454 comments that 
contained similar or identical content filed by or on behalf of 
individuals with learning disabilities and/or attention-deficit/
hyperactivity disorder (AD/HD), although many of these comments also 
included an additional discussion of individual experiences.
    Consistent with EO 13563, this rule was developed through a process 
that involved public participation. The proposed regulations, including 
the preliminary regulatory impact and regulatory flexibility analyses, 
were available on the Internet for a 60-day public-comment period, and 
during that time the Commission also held a series of forums in order 
to promote the open exchange of information. Specifically, the EEOC and 
the U.S. Department of Justice Civil Rights Division also held four 
``Town Hall Listening Sessions'' in Oakland, California on October 26, 
2009; in Philadelphia, Pennsylvania on October 30, 2009, in Chicago, 
Illinois on November 17, 2009, and in New Orleans, Louisiana on 
November 20, 2009. During these sessions, Commissioners heard in-person 
and telephonic comments on the NPRM from members of the public on both 
a pre-registration and walk-in basis. More than 60 individuals and 
representatives of the business/employer community and the disability 
advocacy community from across the country offered comments at these 
four sessions, a number of whom additionally submitted written 
comments.
    All of the comments on the NPRM received electronically or in hard 
copy during the public comment period, including comments from the Town 
Hall Listening Sessions, may be reviewed at the United States 
Government's electronic docket system, http://www.regulations.gov, 
under docket number EEOC-2009-0012. In most instances, this preamble 
addresses the comments by issue rather than by referring to specific 
commenters or comments by name.
    In general, informed by questions raised in the public comments, 
the Commission throughout the final regulations has refined language 
used in the NPRM to clarify its intended meaning, and has also 
streamlined the organization of the regulation to make it simpler to 
understand. As part of these revisions, many examples were moved to the 
appendix from the regulations, and NPRM language repeatedly stating 
that no negative implications should be drawn from the citation to 
particular impairments in the regulations and appendix was deleted as 
superfluous, given that the language used makes clear that impairments 
are referenced merely as examples. More significant or specific 
substantive revisions are reviewed below, by provision.
    The Commission declines to make changes requested by some 
commenters to portions of the regulations and the appendix that we 
consider to be unaffected by the ADA Amendments Act of 2008, such as to 
29 CFR 630.3 (exceptions to definitions), 29 CFR 1630.2(r) (concerning 
the ``direct threat'' defense), 29 CFR 1630.8 (association with an 
individual with a disability), and portions of the appendix that 
discuss the obligations of employers and individuals during the 
interactive process following a request for reasonable accommodation. 
The Commission has also declined to make revisions requested by 
commenters relating to health insurance, disability and other benefit 
programs, and the interaction of the ADA, the Family and Medical Leave 
Act (FMLA), and workers' compensation laws. The Commission believes the 
proposed regulatory language was clear with respect to any application 
it may have to these issues.

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Terminology

    The Commission has made changes to some of the terminology used in 
the final regulations and the appendix. For example, an organization 
that represents individuals who have HIV and AIDS asked that the 
regulations refer to ``HIV infection,'' instead of ``HIV and AIDS.'' An 
organization representing persons with epilepsy sought deletion or 
clarification of references to ``seizure disorders'' and ``seizure 
disorders other than epilepsy,'' noting that ``people who have chronic 
seizures have epilepsy, unless the seizure is due to [another 
underlying impairment].'' This revision was not necessary since 
revisions to the regulations resulted in deletion of NPRM Sec.  
1630.2(j)(5)(iii) in which the reference to ``seizure disorder'' 
appeared. In addition, the Commission made further revisions to conform 
the regulations and appendix to the statutory deletion of the term 
``qualified individual with a disability'' throughout most of title I 
of the ADA. The Commission did not make all changes in terminology 
suggested by commenters, for example declining to substitute the term 
``challenges'' for the terms ``disability'' and ``impairment,'' because 
this would have been contrary to the well-established terminology that 
Congress deliberately used in the ADA Amendments Act.

Section 1630.2(g): Disability

    This section of the regulations includes the basic three-part 
definition of the term ``disability'' that was preserved but redefined 
in the ADA Amendments Act. For clarity, the Commission has referred to 
the first prong as ``actual disability,'' to distinguish it from the 
second prong (``record of'') and the third prong (``regarded as''). The 
term ``actual disability'' is used as short-hand terminology to refer 
to an impairment that substantially limits a major life activity within 
the meaning of the first prong of the definition of disability. The 
terminology selected is for ease of reference and is not intended to 
suggest that individuals with a disability under the first prong 
otherwise have any greater rights under the ADA than individuals whose 
impairments are covered under the ``record of'' or ``regarded as'' 
prongs, other than the restriction created by the Amendments Act that 
individuals covered only under the ``regarded as'' prong are not 
entitled to reasonable accommodation.
    Although an individual may be covered under one or more of these 
three prongs of the definition, it appeared from comments that the NPRM 
did not make explicit enough that the ``regarded as'' prong should be 
the primary means of establishing coverage in ADA cases that do not 
involve reasonable accommodation, and that consideration of coverage 
under the first and second prongs will generally not be necessary 
except in situations where an individual needs a reasonable 
accommodation. Accordingly, in the final regulations, Sec.  1630.2(g) 
and (j) and their accompanying interpretive guidance specifically state 
that cases in which an applicant or employee does not require 
reasonable accommodation can be evaluated solely under the ``regarded 
as'' prong of the definition of ``disability.''

 Section 1630.2(h): Impairment

    Some comments pointed out that the list of body systems in the 
definition of ``impairment'' in Sec.  1630.2(h) of the NPRM was not 
consistent with the description of ``major bodily functions'' in Sec.  
1630.2(i)(1)(ii) that was added due to the inclusion in the Amendments 
Act of ``major bodily functions'' as major life activities. In 
response, the Commission has added references to the immune system and 
the circulatory system to Sec.  1630.2(h), because both are mentioned 
in the definition of ``major bodily functions'' in Sec.  
1630.2(i)(1)(ii). Other apparent discrepancies between the definition 
of ``impairment'' and the list of ``major bodily functions'' can be 
accounted for by the fact that major bodily functions are sometimes 
defined in terms of the operation of an organ within a body system. For 
example, functions of the brain (identified in Sec.  1630.2(i)) are 
part of the neurological system and may affect other body systems as 
well. The bladder, which is part of the genitourinary system, is 
already referenced in Sec.  1630.2(h). In response to comments, the 
Commission has also made clear that the list of body systems in Sec.  
1630.2(h)(1) is non-exhaustive, just as the list of mental impairments 
in Sec.  1630.2(h)(2) has always made clear with respect to its 
examples. The Commission has also amended the final appendix to Sec.  
1630.2(h) to conform to these revisions.
    The Commission received several comments seeking explanation of 
whether pregnancy-related impairments may be disabilities. To respond 
to these inquiries, the final appendix states that although pregnancy 
itself is not an impairment, and therefore is not a disability, a 
pregnancy-related impairment that substantially limits a major life 
activity is a disability under the first prong of the definition. 
Alternatively, a pregnancy-related impairment may constitute a ``record 
of'' a substantially limiting impairment, or may be covered under the 
``regarded as'' prong if it is the basis for a prohibited employment 
action and is not ``transitory and minor.''

Section 1630.2(i): Major Life Activities

    A number of comments, mostly on behalf of individuals with 
disabilities, suggested that the Commission add more examples of major 
life activities, particularly to the first non-exhaustive list, 
including but not limited to typing, keyboarding, writing, driving, 
engaging in sexual relations, and applying fine motor coordination. 
Other suggestions ranged widely, including everything from squatting 
and getting around inside the home to activities such as farming, 
ranching, composting, operating water craft, and maintaining an 
independent septic tank.
    The Commission does not believe that it is necessary to decide 
whether each of the many other suggested examples is in fact a major 
life activity, but we emphasize again that the statutory and regulatory 
examples are non-exhaustive. We also note that some of the activities 
that commenters asked to be added may be part of listed major life 
activities, or may be unnecessary to establishing that someone is an 
individual with a disability in light of other changes to the 
definition of ``disability'' resulting from the Amendments Act.
    Some employer groups suggested that major life activities other 
than those specifically listed in the statute be deleted, claiming that 
the EEOC had exceeded its authority by including additional ones. 
Specific concerns were raised about the inclusion of ``interacting with 
others'' on behalf of employers who believed that recognizing this 
major life activity would limit the ability to discipline employees for 
misconduct.
    Congress expressly provided that the two lists of examples of major 
life activities are non-exhaustive, and the Commission is authorized to 
recognize additional examples of major life activities. The final 
regulations retain ``interacting with others'' as an example of a major 
life activity, consistent with the Commission's long-standing position 
in existing enforcement guidance.
    One disability rights group also asked the Commission to delete the 
long-standing definition of major life activities as those basic 
activities that most people in the general population ``can perform 
with little or no difficulty'' and substitute a lower standard. Upon 
consideration, we think that, while the ability of most people to 
perform the

[[Page 16981]]

activity is relevant when evaluating whether an individual is 
substantially limited, it is not relevant to whether the activity in 
question is a major life activity. Consequently, the final rule, like 
the statute itself, simply provides examples of activities that qualify 
as ``major life activities'' because of their relative importance.
    Finally, some commenters asked that the final rule state explicitly 
that the standard from Toyota Motor Mfg., Ky., Inc. v. Williams, 534 
U.S. 184 (2002), for determining whether an activity qualifies as a 
major life activity--that it be of ``central importance to most 
people's daily lives''--no longer applies after the ADA Amendments Act. 
The Commission agrees and has added language to this effect in the 
final regulations.
    We have provided this clarification in the regulations, and, in the 
appendix, we explain what this means with respect to, for example, 
activities such as lifting and performing manual tasks. The final 
regulations also state that in determining other examples of major life 
activities, the term ``major'' shall not be interpreted strictly to 
create a demanding standard for disability, and provide that whether an 
activity is a ``major life activity'' is not determined by reference to 
whether it is of ``central importance to daily life.''

Section 1630.2(j): Substantially Limits

Overview
    Although much of Sec.  1630.2(j) of the final regulations is 
substantively the same as Sec.  1630.2(j) of the NPRM, the structure of 
the section is somewhat different. Many of the examples that were in 
the text of the proposed rule have been relocated to the appendix. 
Section 1630.2(j)(1) in the final regulations lists nine ``rules of 
construction'' that are based on the statute itself and are essentially 
consistent with the content of Sec. Sec.  1630.2(j)(1) through (4) of 
the NPRM. Section 1630.2(j)(2) in the final regulations makes clear 
that the question of whether an individual is substantially limited in 
a major life activity is not relevant to coverage under the ``regarded 
as'' prong. Section 1630.2(j)(3)(ii) in the final regulations notes 
that some impairments will, given their inherent nature, virtually 
always be found to impose a substantial limitation on a major life 
activity. Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward. In addition, Sec.  1630.2(j)(3)(iii) includes examples 
of impairments that should easily be found to substantially limit a 
major life activity. These are the same impairments that were included 
as examples in Sec.  1630.2(j)(5) of the NPRM. In response to comments 
(discussed below), Sec.  1630.2(j)(4) discusses the concepts of 
``condition, manner, or duration'' that may be useful in evaluating 
whether an individual is substantially limited in a major life activity 
in some cases. Section 1630.2(j)(5) in the final regulations offers 
examples of mitigating measures, and Sec.  1630.2(j)(6) contains the 
definition of ``ordinary eyeglasses or contact lenses.'' The discussion 
of how to determine whether someone is substantially limited in working 
in those rare cases where this may be at issue now appears in the 
appendix rather than the regulations, and has been revised as explained 
below. Finally, NPRM Sec.  1630.2(j)(6), describing certain impairments 
that may or may not meet the definition of ``substantially limits,'' 
and NPRM Sec.  1630.2(j)(8), describing certain impairments that 
usually will not meet the definition of ``substantially limits,'' have 
been deleted in favor of an affirmative statement in both the final 
regulations and the appendix that not every impairment will constitute 
a disability within the meaning of Sec.  1630.2(j) (defining 
``substantially limits'').
Meaning of ``Substantially Limits''
    Many commenters asked that the Commission more affirmatively define 
``substantially limits.'' Suggestions for further definitions of 
``substantial'' included, among others, ``ample,'' ``considerable,'' 
``more than moderately restricts,'' ``discernable degree of 
difficulty,'' ``makes achievement of the activity difficult,'' and 
``causes a material difference from the ordinary processes by which 
most people in the general population perform the major life 
activity.'' The Commission has not added terms to quantify 
``substantially limits'' in the final regulations. We believe this is 
consistent with Congress's express rejection of such an approach in the 
statute, which instead simply indicates that ``substantially limits'' 
is a lower threshold than ``prevents'' or ``severely or significantly 
restricts,'' as prior Supreme Court decisions and the EEOC regulations 
had defined the term. The Commission ultimately concluded that a new 
definition would inexorably lead to greater focus and intensity of 
attention on the threshold issue of coverage than intended by Congress. 
Therefore, following Congress's approach, the final regulations provide 
greater clarity and guidance by providing nine rules of construction 
that must be applied in determining whether an impairment substantially 
limits (or substantially limited) a major life activity. These rules 
are based on the provisions in the Amendments Act, and will guide 
interpretation of the term ``substantially limits.''
Comparison to ``Most People''
    The regulations say that in determining whether an individual has a 
substantially limiting impairment, the individual's ability to perform 
a major life activity should be compared to that of ``most people in 
the general population.'' Both employer groups and organizations 
writing on behalf of individuals with disabilities said that the 
concept of ``intra-individual'' differences (disparities between an 
individual's aptitude and expected achievement versus the individual's 
actual achievement) that appears in the discussion of learning 
disabilities in the NPRM's appendix is inconsistent with the rule that 
comparison of an individual's limitations is always made by reference 
to most people. However, the Commission also received some comments 
from disability groups requesting that, in the assessment of whether an 
individual is substantially limited, the regulations allow for 
comparisons between an individual's experiences with and without an 
impairment, and comparisons between an individual and her peers--in 
addition to comparisons of the individual to ``most people.''
    The Commission agrees that the reference to ``intra-individual'' 
differences, without further explanation, may be misconstrued as at 
odds with the agency's view that comparisons are always made between an 
individual and most people. Therefore, the Commission has added 
language to the discussion of learning disabilities in the appendix, in 
Sec.  1630.2(j)(1)(v), clarifying that although learning disabilities 
may be diagnosed in terms of the difference between an individual's 
aptitude and actual versus expected achievement, a comparison to ``most 
people'' can nevertheless be made. Moreover, the appendix provides 
examples of ameliorative effects of mitigating measures that will be 
disregarded in making this comparison, and notes legislative history 
rejecting the assumption that an individual who has performed well 
academically cannot be substantially limited in activities such as 
learning, reading, writing, thinking, or speaking.

[[Page 16982]]

Relevance of Duration of an Impairment's Limitations in Assessing 
``Substantially Limits''

    Many commenters expressed their view that the NPRM failed to 
clarify, or created confusion regarding, how long an impairment's 
limitation(s) must last in order for the impairment to be considered 
substantially limiting. Some thought the Commission was saying that 
impairments that are ``transitory and minor'' under the third prong can 
nevertheless be covered under the first or second prong of the 
definition of ``disability.'' A few comments suggested that the 
Commission adopt a minimum duration of six months for an impairment to 
be considered substantially limiting, but more commenters simply wanted 
the Commission to specify whether, and if so what, duration is 
necessary to establish a substantial limitation.
    In enacting the ADA Amendments Act, Congress statutorily defined 
``transitory'' for purposes of the ``transitory and minor'' exception 
to newly-defined ``regarded as'' coverage as ``an impairment with an 
actual or expected duration of 6 months or less,'' but did not include 
that limitation with respect to the first or second prong in the 
statute. 42 U.S.C. 12102(3)(B). Moreover, prior to the Amendments Act, 
it had been the Commission's long-standing position that if an 
impairment substantially limits, is expected to substantially limit, or 
previously substantially limited a major life activity for at least 
several months, it could be a disability under Sec.  1630.2(g)(1) or a 
record of a disability under Sec.  1630.2(g)(2). See, e.g., EEOC 
Compliance Manual Section 902, ``Definition of the Term Disability,'' 
Sec.  902(4)(d) (originally issued in 1995), http://www.eeoc.gov/policy/docs/902cm.html; EEOC Enforcement Guidance on the Americans with 
Disabilities Act and Psychiatric Disabilities (1997), http://www.eeoc.gov/policy/docs/psych.html. A six-month durational requirement 
would represent a more stringent standard than the EEOC had previously 
required, not the lower standard Congress sought to bring about through 
enactment of the ADA Amendments Act. Therefore, the Commission declines 
to provide for a six-month durational minimum for showing disability 
under the first prong or past history of a disability under the second 
prong.
    Additionally, the Commission has not in the final regulations 
specified any specific minimum duration that an impairment's effects 
must last in order to be deemed substantially limiting. This accurately 
reflects the intent of the ADA Amendments Act, as conveyed in the joint 
statement submitted by co-sponsors Hoyer and Sensenbrenner. That 
statement explains that the duration of an impairment is only one 
factor in determining whether the impairment substantially limits a 
major life activity, and impairments that last only a short period of 
time may be covered if sufficiently severe. See Joint Hoyer-
Sensenbrenner Statement on the Origins of the ADA Restoration Act of 
2008, H.R. 3195 at 5.

Mitigating Measures

    The final regulations retain, as one of the nine rules of 
construction, the statutory requirement that mitigating measures, other 
than ordinary eyeglasses or contact lenses, must not be considered in 
determining whether an individual has a disability. Several 
organizations representing persons with disabilities suggested adding 
more examples of mitigating measures, including: job coaches, service 
animals, personal assistants, psychotherapy and other ``human-
mediated'' treatments, and some specific devices used by persons who 
have hearing and/or vision impairments.
    In the final regulations, the Commission has added psychotherapy, 
behavioral therapy, and physical therapy. In the appendix, the 
Commission has explained why other suggested examples were not 
included, noting first that the list is non-exhaustive. Some suggested 
additional examples of mitigating measures are also forms of reasonable 
accommodation, such as the right to use a service animal or job coach 
in the workplace. The Commission emphasizes that its decision not to 
list certain mitigating measures does not create any inference that 
individuals who use these measures would not meet the definition of 
``disability.'' For example, as the appendix points out, someone who 
uses a service animal will still be able to demonstrate a substantial 
limitation in major life activities such as seeing, hearing, walking, 
or performing manual tasks (depending on the reason the service animal 
is used).
    Several employer groups asked the Commission to identify legal 
consequences that follow from an individual's failure to use mitigating 
measures that would alleviate the effects of an impairment. For 
example, some commenters suggested that such individuals would not be 
entitled to reasonable accommodation. The Commission has included a 
statement in the appendix pointing out that the determination of 
whether or not an individual's impairment substantially limits a major 
life activity is unaffected by whether the individual chooses to forgo 
mitigating measures. For individuals who do not use a mitigating 
measure (including, for example, medication or reasonable accommodation 
that could alleviate the effects of an impairment), the availability of 
such measures has no bearing on whether the impairment substantially 
limits a major life activity. The limitations imposed by the impairment 
on the individual, and any negative (non-ameliorative) effects of 
mitigating measures used, determine whether an impairment is 
substantially limiting. The origin of the impairment, whether its 
effects can be mitigated, and any ameliorative effects of mitigating 
measures in fact used may not be considered in determining if the 
impairment is substantially limiting. However, the use or non-use of 
mitigating measures, and any consequences thereof, including any 
ameliorative and non-ameliorative effects, may be relevant in 
determining whether the individual is qualified or poses a direct 
threat to safety.
    Commenters also asked for a clear statement regarding whether the 
non-ameliorative effects of mitigating measures may be considered in 
determining whether an impairment is substantially limiting. Some also 
asked for guidance regarding whether the positive and negative effects 
of mitigating measures can be taken into account when determining 
whether an individual needs a reasonable accommodation.
    The final regulations affirmatively state that non-ameliorative 
effects may be considered in determining whether an impairment is 
substantially limiting. The appendix clarifies, however, that in many 
instances it will not be necessary to consider the non-ameliorative 
effects of mitigating measures to determine that an impairment is 
substantially limiting. For example, whether diabetes is substantially 
limiting will most often be analyzed by considering its effects on 
endocrine functions in the absence of mitigating measures such as 
medications or insulin, rather than by considering the measures someone 
must undertake to keep the condition under control (such as frequent 
blood sugar and insulin monitoring and rigid adherence to dietary 
restrictions). Likewise, whether someone with kidney disease has a 
disability will generally be assessed by considering limitations on 
kidney and bladder functions that would occur without dialysis rather 
than by reference to the burdens that dialysis treatment imposes. The

[[Page 16983]]

appendix also states that both the ameliorative and non-ameliorative 
effects of mitigating measures may be relevant in deciding non-coverage 
issues, such as whether someone is qualified, needs a reasonable 
accommodation, or poses a direct threat.
    Some commenters also asked for a more precise definition than the 
statutory definition of the term ``ordinary eyeglasses or contact 
lenses.'' For example, one commenter proposed that ``fully corrected'' 
means visual acuity of 20/20. Another commenter representing human 
resources professionals from large employers suggested a rule that any 
glasses that can be obtained from a ``walk-in retail eye clinic'' would 
be considered ordinary eyeglasses or contact lenses, including bi-focal 
and multi-focal lenses. An organization representing individuals who 
are blind or have vision impairments wanted us to say that glasses that 
enhance or augment a visual image but that may resemble ordinary 
eyeglasses should not be considered when determining whether someone is 
substantially limited in seeing.
    The final regulations do not adopt any of these approaches. The 
Commission believes that the NPRM was clear that the distinction 
between ``ordinary eyeglasses or contact lenses'' on the one hand and 
``low vision devices'' on the other is how they function, not how they 
look or where they were purchased. Whether lenses fully correct visual 
acuity or eliminate refractive error is best determined on the basis of 
current and objective medical evidence. The Commission emphasizes, 
however, that even if such evidence indicates that visual acuity is 
fully corrected or that refractive error is eliminated, this means only 
that the effect of the eyeglasses or contact lenses shall be considered 
in determining whether the individual is substantially limited in 
seeing, not that the individual is automatically excluded from the 
law's protection.
    Numerous comments were made on the proposed inclusion of surgical 
interventions as mitigating measures. Many asked the Commission to 
delete the reference to surgical interventions entirely; others wanted 
us to delete the qualification that surgical interventions that 
permanently eliminate an impairment are not considered mitigating 
measures. Some comments proposed language that would exclude from 
mitigating measures those surgical interventions that ``substantially 
correct'' an impairment. Some comments endorsed the definition as 
written, but suggested we provide examples of surgical interventions 
that would permanently eliminate an impairment.
    The Commission has eliminated ``surgical interventions, except for 
those that permanently eliminate an impairment'' as an example of a 
mitigating measure in the regulation, given the confusion evidenced in 
the comments about how this example would apply. Determinations about 
whether surgical interventions should be taken into consideration when 
assessing whether an individual has a disability are better assessed on 
a case-by-case basis.
    Finally, some commenters asked the Commission to address generally 
what type of evidence would be sufficient to establish whether an 
impairment would be substantially limiting without the ameliorative 
effects of a mitigating measure that the individual uses. In response 
to such comments, the Commission has added to the appendix a statement 
that such evidence could include evidence of limitations that a person 
experienced prior to using a mitigating measure, evidence concerning 
the expected course of a particular disorder absent mitigating 
measures, or readily available and reliable information of other types.

Impairments That Are Episodic or in Remission

    One commenter suggested that the regulatory provision on 
impairments that are ``episodic or in remission'' should be clarified 
to eliminate from coverage progressive impairments such as Parkinson's 
Disease on the ground that they would not be disabilities in the 
``early stages.'' The Commission declines to make this revision, 
recognizing that because ``major bodily functions'' are themselves 
``major life activities,'' Parkinson's Disease even in the ``early 
stages'' can substantially limit major life activities, such as brain 
or neurological functions. Some employer groups also asked the 
Commission to provide further guidance on distinguishing between 
episodic conditions and those that may, but do not necessarily, become 
episodic, as indicated by subsequent ``flare ups.'' As the Commission 
has indicated in the regulations and appendix provisions on mitigating 
measures, these questions may in some cases be resolved by looking at 
evidence such as limitations experienced prior to the use of the 
mitigating measure or the expected course of a disorder absent 
mitigating measures. However, recognizing that there may be various 
ways that an impairment may be shown to be episodic, we decline to 
address such evidentiary issues with any greater specificity in the 
rulemaking.

Predictable Assessments

    Section 1630.2(j)(5) of the NPRM provided examples of impairments 
that would ``consistently meet the definition of disability'' in light 
of the statutory changes to the definition of ``substantially limits.'' 
Arguing that Sec.  1630.2(j)(5) of the NPRM created a ``per se list'' 
of disabilities, many commenters, particularly representatives of 
employers and employer organizations, asked for the section's deletion, 
so that all impairments would be subject to the same individualized 
assessment. Equally strong support for this section was expressed by 
organizations representing individuals with disabilities, some of whom 
suggested that impairments such as learning disabilities, AD/HD, panic 
and anxiety disorder, hearing impairments requiring use of a hearing 
aid or cochlear implant, mobility impairments requiring the use of 
canes, crutches, or walkers, and multiple chemical sensitivity be added 
to the list of examples in NPRM Sec.  1630.2(j)(5). Many of the 
commenters who expressed support for this section also asked that NPRM 
Sec.  1630.2(j)(6) (concerning impairments that may be substantially 
limiting for some individuals but not for others) be deleted, as it 
seemed to suggest that these impairments were of lesser significance 
than those in NPRM Sec.  (j)(5).
    In response to these concerns, the Commission has revised this 
portion of the regulations to make clear that the analysis of whether 
the types of impairments discussed in this section (now Sec.  
1630.2(j)(3)) substantially limit a major life activity does not depart 
from the hallmark individualized assessment. Rather, applying the 
various principles and rules of construction concerning the definition 
of disability, the individualized assessment of some types of 
impairments will, in virtually all cases, result in a finding that the 
impairment substantially limits a major life activity, and thus the 
necessary individualized assessment of these types of impairments 
should be particularly simple and straightforward. The regulations also 
provide examples of impairments that should easily be found to 
substantially limit a major life activity.
    The Commission has also deleted Sec.  1630.2(j)(6) that appeared in 
the NPRM. However, the Commission did not agree with those commenters 
who thought it was necessary to include in Sec.  1630.2(j)(3) of the 
final regulations all the impairments that were the subject of

[[Page 16984]]

examples in NPRM Sec.  1630.2(j)(6), or that other impairments not 
previously mentioned in either section should be included in (j)(3). 
The Commission has therefore declined to list additional impairments in 
Sec.  1630.2(j)(3) of the final regulations. The regulations as written 
permit courts to conclude that any of the impairments mentioned in 
Sec.  1630.2(j)(6) of the NPRM or other impairments ``substantially 
limit'' a major life activity.
    Section 1630.2(j)(8) of the NPRM provided examples of impairments 
that ``are usually not disabilities.'' Some commenters asked for 
clarity concerning whether, and under what circumstances, any of the 
impairments included in the examples might constitute disabilities 
under the first or second prong, or asked that the section title be 
revised by replacing ``usually'' with ``consistently.'' Other 
commenters asked whether the listed impairments would be considered 
``transitory and minor'' for purposes of the ``regarded as'' 
definition, or wanted clarification that the listed impairments were 
not necessarily ``transitory and minor'' in all instances. A few 
organizations recommended deletion of certain impairments from the list 
of examples, such as a broken bone that is expected to heal completely 
and a sprained joint. In the final regulations, the Commission deleted 
this section, again due to the confusion it presented.

Condition, Manner, or Duration

    Comments from both employers and groups writing on behalf of 
individuals with disabilities proposed that the Commission continue to 
use the terms ``condition, manner, or duration,'' found in the appendix 
accompanying EEOC's 1991 ADA regulations, as part of the definition of 
``substantially limits.'' Many employer groups seemed to think the 
concepts were relevant in all cases; disability groups generally 
thought they could be relevant in some cases, but do not need to be 
considered rigidly in all instances.
    In response, the Commission has inserted the terms ``condition, 
manner, or duration'' as concepts that may be relevant in certain cases 
to show how an individual is substantially limited, although the 
concepts may often be unnecessary to conduct the analysis of whether an 
impairment ``substantially limits'' a major life activity. The 
Commission has also included language to illustrate what these terms 
mean, borrowing from the examples in Sec.  1630.2(j)(6) of the NPRM, 
which has been deleted from the final regulations. For example, 
``condition, manner, or duration'' might mean the difficulty or effort 
required to perform a major life activity, pain experienced when 
performing a major life activity, the length of time a major life 
activity can be performed, or the way that an impairment affects the 
operation of a major bodily function.

Substantially Limited in Working

    The proposed rule had replaced the concepts of a ``class'' or 
``broad range'' of jobs from the 1991 regulations defining substantial 
limitation in working with the concept of a ``type of work.'' A number 
of commenters asked the Commission to restore the concepts of a class 
or broad range of jobs. Many other comments supported the ``type of 
work'' approach taken in the NPRM. Some supporters of the ``type of 
work'' approach sought additional examples of types of work (e.g., jobs 
requiring working around chemical fumes and dust, or jobs that require 
keyboarding or typing), and requested that certain statements in the 
appendix be moved into the regulations.
    In issuing the final regulations, the Commission has moved the 
discussion of how to analyze the major life activity of working to the 
appendix, since no other major life activity is singled out in the 
regulations for elaboration. Rather than attempting to articulate a new 
``type of work'' standard that may cause unnecessary confusion, the 
Commission has retained the original part 1630 ``class or broad range 
of jobs'' formulation in the appendix, although we explain how this 
standard must be applied differently than it was prior to the 
Amendments Act. We also provide a more streamlined discussion and 
examples of the standard to comply with Congress's exhortation in the 
Amendments Act to favor broad coverage and disfavor extensive analysis 
(Section 2(b)(5) (Findings and Purposes)).

Section 1630.2(k): Record of a Disability

    Some commenters asked the Commission to revise this section to 
state that a ``record'' simply means a past history of a substantially 
limiting impairment, not necessarily that the past history has to be 
established by a specific document. Although some commenters sought 
deletion of the statement (in Sec. Sec.  1630.2(o) and 1630.9) that 
individuals covered under the ``record of'' prong may get reasonable 
accommodations, others agreed that the language of the Amendments Act 
is consistent with the Commission's long-held position and wanted 
examples of when someone with a history of a substantially limiting 
impairment would need accommodation. Some comments recommended that the 
Commission make the point that a person with cancer (identified in one 
of the NPRM examples) could also be covered under the first prong.
    The final regulations streamline this section by moving the 
examples of ``record of'' disabilities to the appendix. The Commission 
has also added a paragraph to this section to make clear that 
reasonable accommodations may be required for individuals with a record 
of an impairment that substantially limits a major life activity, and 
has provided an example of when a reasonable accommodation may be 
required. The Commission has not added language to state explicitly 
that the past history of an impairment need not be reflected in a 
specific document; we believe that this is clear in current law, and 
this point is reflected in the appendix.

Section 1630.2(l): Regarded As

    Many comments revealed confusion as to both the new statutory and 
proposed regulatory definition of the ``regarded as'' prong in general, 
and the ``transitory and minor'' exception in particular. Other 
comments simply requested clarification of the ``transitory and minor'' 
exception. The final regulations provide further clarification and 
explanation of the scope of ``regarded as'' coverage.
    The final regulations and appendix make clear that even if coverage 
is established under the ``regarded as'' prong, the individual must 
still establish the other elements of the claim (e.g., that he or she 
is qualified) and the employer may raise any available defenses. In 
other words, a finding of ``regarded as'' coverage is not itself a 
finding of liability.
    The final regulations and appendix also explain that the fact that 
the ``regarded as'' prong requires proof of causation in order to show 
that a person is covered does not mean that proving a claim based on 
``regarded as'' coverage is complex. As noted in the appendix, while a 
person must show, both for coverage under the ``regarded as'' prong and 
for ultimate liability, that he or she was subjected to a prohibited 
action because of an actual or perceived impairment, this showing need 
only be made once. Thus, a person proceeding under the ``regarded as'' 
prong may demonstrate a violation of the ADA by meeting the burden of 
proving that: (1) He or she has an impairment or was perceived by a 
covered entity to have an impairment, and (2) the covered entity 
discriminated against him or her because of the impairment in violation 
of the statute. Finally, the final regulations make clear that an 
employer

[[Page 16985]]

may show that an impairment is ``transitory and minor'' as a defense to 
``regarded as'' coverage. 29 CFR 1630.15(f).
    The final regulations and appendix, at Sec.  1630.2(j), also make 
clear that the concepts of ``major life activities'' and 
``substantially limits'' (relevant when evaluating coverage under the 
first or second prong of the definition of ``disability'') are not 
relevant in evaluating coverage under the ``regarded as'' prong. Thus, 
in order to have regarded an individual as having a disability, a 
covered entity need not have considered whether a major life activity 
was substantially limited, and an individual claiming to have been 
regarded as disabled need not demonstrate that he or she is 
substantially limited in a major life activity.
    Concerning specific issues with which commenters disagreed, some 
criticized examples of impairments that the Commission said would be 
considered transitory and minor--specifically, a broken leg that heals 
normally and a sprained wrist that limits someone's ability to type for 
three weeks. These commenters claimed that these impairments, though 
transitory, are not minor. Consistent with its effort to streamline the 
text of the final rule, the Commission has deleted examples that 
appeared in the NPRM, illustrating how the ``transitory and minor'' 
exception applies. However, the appendix to Sec.  1630.2(l) as well as 
the defense as set forth in Sec.  1630.15(f) include examples involving 
an employer that takes a prohibited action against an employee with 
bipolar disorder that the employer claims it believed was transitory 
and minor, and an employer that takes a prohibited action against an 
individual with a transitory and minor hand wound that the employer 
believes is symptomatic of HIV infection. These examples are intended 
to illustrate the point that whether an actual or perceived impairment 
is transitory and minor is to be assessed objectively.
    In response to a specific request in the preamble to the NPRM, the 
Commission received many comments about the position in the proposed 
rule that actions taken because of an impairment's symptoms or because 
of the use of mitigating measures constitute actions taken because of 
an impairment under the ``regarded as'' prong. Individuals with 
disabilities and organizations representing them for the most part 
endorsed the position, noting that the symptoms of, and mitigating 
measures used for, an impairment are part and parcel of the impairment 
itself, and that this provision is necessary to prevent employers from 
evading ``regarded as'' coverage by asserting that the challenged 
employment action was taken because of the symptom or medication, not 
the impairment, even when it knew of the connection between the two. 
Others asked the Commission to clarify that this interpretation applied 
even where the employer had no knowledge of the connection between the 
impairment and the symptom or mitigating measure. However, employers 
and organizations representing employers asked that this language be 
deleted in its entirety. They were particularly concerned that an 
employer could be held liable under the ADA for disciplining an 
employee for violating a workplace rule, where the violation resulted 
from an underlying impairment of which the employer was unaware.
    In light of the complexity of this issue, the Commission believes 
that it requires a more comprehensive treatment than is possible in 
this regulation. Therefore, the final regulations do not explicitly 
address the issue of discrimination based on symptoms or mitigating 
measures under the ``regarded as'' prong. No negative inference 
concerning the merits of this issue should be drawn from this deletion. 
The Commission's existing position, as expressed in its policy 
guidance, court filings, and other regulatory and sub-regulatory 
documents, remains unchanged.
    Finally, because the new law makes clear that an employer regards 
an individual as disabled if it takes a prohibited action against the 
individual because of an actual or perceived impairment that was not 
``transitory and minor,'' whether or not myths, fears, or stereotypes 
about disability motivated the employer's decision, the Commission has 
deleted certain language about myths, fears, and stereotypes from the 
1991 version of this section of the appendix that might otherwise be 
misconstrued when applying the new ADA Amendments Act ``regarded as'' 
standard.

Issues Concerning Evidence of Disability

    The Commission also received comments from both employer groups and 
organizations writing on behalf of people with disabilities asking that 
the regulations address what kind of information an employer may 
request about the nature of an impairment (e.g., during the interactive 
process in response to a request for reasonable accommodation), and the 
amount and type of evidence that would be sufficient in litigation to 
establish the existence of a disability. Some employer groups, for 
example, asked the Commission to emphasize that a person requesting a 
reasonable accommodation must participate in the interactive process by 
providing appropriate documentation where the disability and need for 
accommodation are not obvious or already known. Organizations writing 
on behalf of persons with disabilities asked the Commission to state in 
the regulations that a diagnosis of one of the impairments in NPRM 
Sec.  1630.2(j)(5) is sufficient to establish the existence of a 
disability; that the Commission should emphasize, even more so than in 
the NPRM, that proving disability is not an onerous burden; that in 
many instances the question of whether a plaintiff in litigation has a 
disability should be the subject of stipulation by the parties; and 
that an impairment's effects on major bodily functions should be 
considered before its effects on other major life activities in 
determining whether an impairment substantially limits a major life 
activity. Both employer groups and organizations submitting comments on 
behalf of individuals with disabilities asked the Commission to clarify 
the statement in the NPRM that objective scientific and medical 
evidence can be used to establish the existence of a disability.
    The Commission believes that most of these proposed changes 
regarding evidentiary matters are either unnecessary or not appropriate 
to address in the regulations. For example, the Commission has stated 
repeatedly in numerous policy documents and technical assistance 
publications that individuals requesting accommodation must provide 
certain supporting medical information if the employer requests it, and 
that the employer is permitted to do so if the disability and/or need 
for accommodation are not obvious or already known. The ADA Amendments 
Act does not alter this requirement. The Commission also does not think 
it appropriate to comment in the regulations or the appendix on how ADA 
litigation should be conducted, such as whether parties should 
stipulate to certain facts or whether use of certain major life 
activities by litigants or courts should be preferred.
    However, based on the comments received, the Commission has 
concluded that clarification of language in the NPRM regarding use of 
scientific and medical evidence is warranted. The final regulations, at 
Sec.  1630.2(j)(1)(v), state that the comparison of an individual's 
performance of a major life activity to the performance of the same 
major life activity by most people in the

[[Page 16986]]

general population usually will not require scientific, medical, or 
statistical analysis. However, the final regulations also state that 
this provision is not intended to prohibit the presentation of 
scientific, medical, or statistical evidence to make such a comparison 
where appropriate. In addition, the appendix discusses evidence that 
may show that an impairment would be substantially limiting in the 
absence of the ameliorative effects of mitigating measures.

Section 1630.2(m): Definition of ``Qualified''

    The final regulations and accompanying appendix make slight changes 
to this section to eliminate use of the term ``qualified individual 
with a disability,'' consistent with the ADA Amendments Act's 
elimination of that term throughout most of title I of the ADA.

Section 1630.2(o): Reasonable Accommodation

    The Commission has added a new provision (o)(4) in Sec.  1630.2(o) 
of the final regulations, providing that a covered entity is not 
required to provide a reasonable accommodation to an individual who 
meets the definition of disability solely under the ``regarded as'' 
prong (Sec.  1630.2(g)(1)(iii)). The Commission has also made changes 
to this section to eliminate use of the term ``qualified individual 
with a disability,'' consistent with the ADA Amendments Act's 
elimination of that term throughout most of title I of the ADA.

Section 1630.4: Discrimination Prohibited

    The Commission has reorganized Sec.  1630.4 of the final 
regulations, adding a new provision in Sec.  1630.4(b) to provide, as 
stated in the Amendments Act, that nothing in this part shall provide 
the basis for a claim that an individual without a disability was 
subject to discrimination because of his lack of disability, including 
a claim that an individual with a disability was granted an 
accommodation that was denied to an individual without a disability.

Section 1630.9: Not Making Reasonable Accommodation

    The final regulations include a technical revision to Sec.  
1630.9(c) to conform citations therein to the amended ADA. In addition, 
a new Sec.  1630.9(e) has been added stating again that a covered 
entity is not required to provide a reasonable accommodation to an 
individual who meets the definition of disability solely under the 
``regarded as'' prong (Sec.  1630.2(g)(1)(iii)). In addition, the 
appendix to Sec.  1630.9 is amended to revise references to the term 
``qualified individual with a disability'' in order to conform to the 
statutory changes made by the Amendments Act.

Section 1630.10: Qualification Standards, Tests, and Other Selection 
Criteria.

    The final regulations include a new Sec.  1630.10(b) explaining the 
amended ADA provision regarding qualification standards and tests 
related to uncorrected vision.

Section 1630.15: Defenses

    The final regulations include a new Sec.  1630.15(f), and 
accompanying appendix section, explaining the ``transitory and minor'' 
defense to a charge of discrimination where coverage would be shown 
solely under the ``regarded as'' prong of the definition.

Section 1630.16: Specific Activities Permitted

    The final regulations include terminology revisions to Sec. Sec.  
1630.16(a) and (f) to conform to the statutory deletion of the term 
``qualified individual with a disability'' in most parts of title I.

Regulatory Procedures

Final Regulatory Impact Analysis

Executive Orders 12866 and 13563

    The final rule, which amends 29 CFR Part 1630 and the accompanying 
interpretive guidance, has been drafted and reviewed in accordance with 
EO 12866, 58 FR 51735 (Sept. 30, 1993), Principles of Regulations, and 
EO 13563, 76 FR 3821, (Jan. 21, 2011), Improving Regulation and 
Regulatory Review. The rule is necessary to bring the Commission's 
prior regulations into compliance with the ADA Amendments Act of 2008, 
which became effective January 1, 2009, and explicitly invalidated 
certain provisions of the prior regulations. The new final regulations 
and appendix are intended to add to the predictability and consistency 
of judicial interpretations and executive enforcement of the ADA as now 
amended by Congress.
    The final regulatory impact analysis estimates the annual costs of 
the rule to be in the range of $60 million to $183 million, and 
estimates that the benefits will be significant. While those benefits 
cannot be fully quantified and monetized at this time, the Commission 
concludes that consistent with EO 13563, the benefits (quantitative and 
qualitative) will justify the costs. Also consistent with EO 13563, we 
have attempted to ``use the best available techniques to quantify 
anticipated present and future benefits and costs as accurately as 
possible.'' The Commission notes, however, that the rule and the 
underlying statute create many important benefits that, in the words of 
EO 13563, stem from ``values that are difficult or impossible to 
quantify.'' Consistent with EO 13563, in addition to considering the 
rule's quantitative effects, the Commission has considered the rule's 
qualitative effects. Some of the benefits of the ADA Amendments Act 
(ADAAA or Amendments Act) and this final rule are monetary in nature, 
and likely involve increased productivity, but cannot be quantified at 
this time.
    Other benefits, consistent with the Act, involve values such as (in 
the words of EO 13563) ``equity, human dignity, fairness, and 
distributive impacts.'' In its statement of findings in the Act, 
Congress emphasized that ``in enacting the ADA, Congress recognized 
that physical and mental disabilities in no way diminish a person's 
right to fully participate in all aspects of society, but that people 
with physical or mental disabilities are frequently precluded from 
doing so because of prejudice, antiquated attitudes, or the failure to 
remove societal and institutional barriers.'' One of the stated 
purposes of the ADA Amendments Act is ``to carry out the ADA's 
objectives of providing `a clear and comprehensive national mandate for 
the elimination of discrimination' and `clear, strong, consistent, 
enforceable standards addressing discrimination' by reinstating a broad 
scope of protection under the ADA.'' ADAAA Section 2(a)(1) and 2(b)(1). 
This rule implements that purpose by establishing standards for 
eliminating disability-based discrimination in the workplace. It also 
promotes inclusion and fairness in the workplace; combats second-class 
citizenship of individuals with disabilities; avoids humiliation and 
stigma; and promotes human dignity by enabling qualified individuals to 
participate in the workforce.

Introduction
I. Estimated Costs
    A. Estimate of Increased Number of Individuals Whose Coverage Is 
Clarified through the ADAAA and the Final Regulations
    (1) Summary of Preliminary Analysis
    (2) Comments on Preliminary Analysis
    (3) Revised Analysis
    (a) Number of Individuals Whose Coverage Is Clarified
    (b) Number of Individuals Whose Coverage Is Clarified and Who 
Are Participating in the Labor Force

[[Page 16987]]

    B. Estimated Increase in Reasonable Accommodation Requests and 
Costs Attributable to the ADAAA and the Final Regulations
    (1) Summary of Preliminary Analysis
    (2) Comments on Preliminary Analysis
    (3) Revised Analysis
    (a) Estimated Number of New Accommodation Requests
    (b) Factors Bearing on Reasonable Accommodation Costs
    (c) Calculation of Mean Costs of Accommodations Derived From 
Studies
    (d) Accommodation Cost Scenarios
    C. Estimated Increase in Administrative and Legal Costs 
Attributable to the ADAAA and the Final Regulations
    (1) Summary of Preliminary Analysis
    (2) Comments on Preliminary Analysis
    (3) Revised Analysis of Administrative Costs
    (4) Analysis of Legal Costs
II. Estimated Benefits
    A. Benefits of Accommodations Attributable to the ADAAA and the 
Final Regulations
    (1) Summary of Preliminary Analysis
    (2) Comments on Preliminary Analysis
    (3) Conclusions Regarding Benefits of Accommodations 
Attributable to the ADAAA and the Final Regulations
    B. Other Benefits Attributable to the ADAAA and the Final 
Regulations
    (1) Efficiencies in Litigation
    (2) Fuller Employment
    (3) Non-discrimination and Other Intrinsic Benefits
Conclusion

Introduction

    In enacting the ADA Amendments Act, Congress explicitly stated its 
expectation that the EEOC would amend its ADA regulations to reflect 
the changes made by the statute. These changes necessarily extend as 
well to the Interpretive Guidance (also known as the Appendix) that was 
published at the same time as the original ADA regulations and that 
provides further explanation on how the regulations should be 
interpreted.
    The Amendments Act states that its purpose is ``to reinstate a 
broad scope of protection'' by expanding the definition of the term 
``disability.'' Congress found that persons with many types of 
impairments--including epilepsy, diabetes, HIV infection, cancer, 
multiple sclerosis, intellectual disabilities (formerly called mental 
retardation), major depression, and bipolar disorder--had been unable 
to bring ADA claims because they were found not to meet the ADA's 
definition of ``disability.'' Yet, Congress thought that individuals 
with these and other impairments should be covered and revised the ADA 
accordingly. Congress explicitly rejected certain Supreme Court 
interpretations of the term ``disability'' and a portion of the EEOC 
regulations that it found had inappropriately narrowed the definition 
of disability. These amended regulations are necessary to implement 
fully the requirements of the ADA Amendments Act's broader definition 
of ``disability.''
    Our assessment of both the costs and benefits of this rule was 
necessarily limited by the data that currently exists. Point estimates 
are not possible at this time. For that reason, and consistent with OMB 
Circular A-4, we have provided a range of estimates in this assessment.
    The preliminary regulatory impact analysis (``preliminary 
analysis'') set forth in the NPRM reviewed existing research and 
attempted to estimate the costs and benefits of the proposed rule. More 
specifically, the preliminary analysis attempted to estimate the costs 
employers would incur as the result of providing accommodations to more 
individuals with disabilities in light of the Amendments Act, the 
prevalence of accommodation already in the workplace, the cost per 
accommodation, the number of additional accommodations that the 
Amendments Act would need to generate to reach $100 million in costs in 
any given year, the administrative costs for firms with at least 150 
employees, and the reported benefits of providing reasonable 
accommodations.
    The preliminary analysis concluded that the costs of the proposed 
rule would very likely be below $100 million, but did not provide 
estimates of aggregated monetary benefits. Because existing research 
measuring the relevant costs and benefits is limited, the Commission's 
NPRM solicited public comment on its data and analysis.
    The Commission's final regulatory impact analysis is based on the 
preliminary assessment but has changed significantly based on comments 
received during the public comment period on the NPRM as well as the 
inter-agency comment period on the final regulations under EO 12866.\1\ 
These changes are consistent with the public participation provisions 
in EO 13563 and reflect the importance of having engaged and informed 
public participation. The limitations of the preliminary analysis 
approach are outlined below, and an alternative approach is provided to 
illustrate the range of benefits and costs.
---------------------------------------------------------------------------

    \1\ The Commission specifically undertook to provide extensive 
opportunities for public participation in this rulemaking process. 
In addition to the more than 600 written comments received during 
the 60-day public comment period on the NPRM, the EEOC and the U.S. 
Department of Justice Civil Rights Division during that period also 
held four ``Town Hall Listening Sessions'' in Oakland, California on 
October 26, 2009, in Philadelphia, Pennsylvania on October 30, 2009, 
in Chicago, Illinois on November 17, 2009, and in New Orleans, 
Louisiana on November 20, 2009. For each of these sessions, 
Commissioners offered to be present all day to receive in-person or 
telephonic comments on any aspect of the NPRM from members of the 
public on both a pre-registration and walk-in basis. More than 60 
individuals and representatives of the business/employer community 
and the disability advocacy community from across the country 
offered comments at these four sessions, a number of whom 
additionally submitted written comments.
---------------------------------------------------------------------------

    These estimates are discussed seriatim in the following sections of 
this analysis.

I. Estimated Costs

A. Estimate of Increased Number of Individuals Whose Coverage Is 
Clarified by the ADAAA and the Final Regulations

    For those employers that have 15 or more employees and are 
therefore covered by the proposed regulations, the potential costs of 
the rule stem from the likelihood that, due to Congress's mandate that 
the definition of disability be applied in a less restrictive manner, 
more individuals will qualify for coverage under the portion of the 
definition of disability that entitles them to request and receive 
reasonable accommodations.\2\ Thus, we first consider the number of 
individuals whose coverage is clarified by the ADAAA and the final rule 
as a result of the changes made to the definition of ``substantially 
limits a major life activity.'' \3\ We then consider how many such 
individuals are likely to be participating in the labor force.
---------------------------------------------------------------------------

    \2\ Individuals who are covered under the first two prongs of 
the definition of disability are entitled to reasonable 
accommodations, as well as to challenge hiring, promotion, and 
termination decisions and discriminatory terms and conditions of 
employment. Individuals covered solely under the third prong of the 
definition of disability are not entitled to reasonable 
accommodations. As we noted in the preliminary regulatory impact 
analysis, the primary costs are likely to derive from increased 
numbers of accommodations being provided by employers--assuming an 
accommodation is needed, an employee is qualified, and the 
accommodation does not pose an undue hardship. No comments 
challenged that assessment. Thus, while we discuss proposed 
increases in litigation costs below (which apply to claims brought 
by individuals covered under any prong of the definition), we focus 
our attention in this section on those individuals whose coverage is 
clarified under the first two prongs of the definition of 
disability.
    \3\ Prior to the ADAAA, individuals with impairments such as 
cancer, diabetes, epilepsy and HIV infection were sometimes found to 
be covered under the ADA, and sometimes not, depending on how well 
they functioned with their impairments, taking into account 
mitigating measures. Thus, it is not appropriate to say that all 
such individuals are ``newly covered'' under the ADA. For that 
reason, we refer to this group throughout this analysis as a group 
whose ``coverage has been clarified'' under the ADAAA.

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[[Page 16988]]

(1) Summary of Preliminary Analysis
    The preliminary regulatory impact analysis relied on a variety of 
demographic surveys conducted by the U.S. government which are designed 
to estimate the number of people with disabilities in the labor force. 
The resulting estimates differ somewhat based on the survey design, the 
sample size, the age range of the population under study, who is 
actually being surveyed (the household or the individual), the mode of 
survey administration, the definition of disability used, and the time-
frame used to define employment status.
    In attempting to estimate the increased number of individuals whose 
coverage was clarified by the ADAAA and who might need and request 
accommodation,\4\ the Commission's preliminary impact analysis examined 
data from the following major population-representative Federal surveys 
that contain information about people with disabilities and their 
employment status: the Current Population Survey (CPS), the American 
Community Survey (ACS), the National Health Interview Survey (NHIS), 
and the Survey of Income and Program Participation (SIPP). Noting the 
limitations of this data as applied to estimating the number of 
individuals affected by the amended ADA, we nevertheless estimated that 
there were 8,229,000 people with disabilities who were working in 2007, 
and that between 2.2 million and 3.5 million workers reported that they 
had disabilities that caused difficulty in working.\5\
---------------------------------------------------------------------------

    \4\ The preliminary analysis focused on individuals whose 
coverage would be clarified under the ADAAA and who might need and 
request an accommodation. For purposes of clarity, our final 
assessment focuses first on the number of individuals whose coverage 
will be clarified under the ADAAA and who are participating in the 
labor force. We then move to a separate analysis of how many of 
those individuals might need and request accommodations.
    \5\ From 2003-07, the ACS included the following question on 
``Employment Disability'' asked of persons ages 15 or older: 
``Because of a physical, mental, or emotional condition lasting six 
months or more, does this person have any difficulty in doing any of 
the following activities: (b) working at a job or business?'' See 
``Frequently Asked Questions,'' Cornell University Disability 
Statistics, Online Resource for U.S. Disability Statistics, http://www.ilr.cornell.edu/edi/disabilitystatisticsfaq.cfm.
---------------------------------------------------------------------------

    Both public comments and comments received during the inter-agency 
review process under EO 12866 highlighted a variety of limitations in 
our analysis. Indeed, the alternative that we later present indicates 
that the figure of 8.2 million people with disabilities used in the 
preliminary analysis significantly underestimated the number of workers 
with impairments whose coverage under the law will now be clarified.
    The indicator of ``disability'' used by the ACS, CPS, and NIHS 
depends on a series of six questions that address functionality, 
including questions about whether an individual has any of the 
following: a severe vision or hearing impairment; a condition that 
substantially limits one or more basic physical activities such as 
walking, climbing stairs, reaching, lifting, or carrying; a physical, 
mental, or emotional condition lasting 6 months or more that results in 
difficulty learning, remembering, or concentrating; or a severe 
disability that results in difficulty dressing, bathing, getting around 
inside the home, going outside the home alone to shop or visit a 
doctor's office, or working at a job or business.
    This survey definition clearly captures only a subset of the group 
of people with disabilities who would be covered under the ADA as 
amended. For example, among other things:

--With respect to both physical and mental impairments, the survey 
definition does not account for the addition of the operation of major 
bodily functions as major life activities under the newly amended law, 
such as functions of the immune system, normal cell growth, and brain, 
neurological, and endocrine functions. This makes it especially likely 
that the survey data is under-inclusive as to individuals with 
impairments such as HIV infection, epilepsy, cancer, diabetes, and 
mental impairments whose coverage is now clarified under the ADA.
--Even with respect to major life activities other than major bodily 
functions, the survey definition covers a narrower range of individuals 
with mental impairments since it is limited to mental or emotional 
conditions that result in difficulty learning, remembering, 
concentrating, or a severe disability resulting in difficulty doing 
specific self-care activities.
--The survey definition overall reflects an attempt to capture 
individuals with impairments whose limitations are considered 
``severe''-- a degree of limitation which is no longer required in 
order for an impairment to be considered substantially limiting under 
the ADA as amended.
--The survey definition expressly excludes many individuals whose 
impairments last fewer than 6 months, even though such impairments may 
substantially limit a major life activity under the ADA prior to and 
after the ADA Amendments.
--The survey definition is limited to impairments that currently 
substantially limit a major life activity, and therefore does not 
capture individuals with a record of a substantially limiting 
impairment who may still need accommodation arising from that past 
history.

    In the preliminary analysis, we used the number of employed 
individuals who have functional disabilities (as indicated by the six-
question set described above) as a surrogate for the number of 
individuals with any disability who are working. We then tried to 
determine the subset of those employed individuals with disabilities 
whose coverage would be newly clarified as a result of the Amendments 
Act, acknowledging that some people whose coverage would be potentially 
clarified by the Amendments Act were probably not included in this 
baseline.
    We declined to use the subset of workers with reported employment 
related disabilities, because we assumed that some of these individuals 
would have been covered even under the pre-ADAAA definition of 
``disability.'' Instead, the preliminary analysis examined the CDC's 
analysis of the Census/SIPP data on prevalence of certain medical 
conditions in the population of non-institutionalized individuals ages 
18-64. See ``Main cause of disability among civilian non-
institutionalized U.S. adults aged 18 years or older with self reported 
disabilities, estimated affected population and percentages, by sex--
United States, 2005,'' http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5816a2.htm (last visited Mar. 1, 2010). We chose to focus on those 
impairments in Sec.  1630.2(j)(5) of the NPRM (those impairments that 
we believed would ``consistently'' meet the definition of a 
substantially limiting impairment), since we considered individuals 
with such impairments to be most likely to request accommodations as a 
result of the regulations due to a greater degree of certainty that 
they would be covered. We concluded that this data suggested that 13 
percent of civilian non-institutionalized adults with disabilities have 
the following conditions: Cancer (2.2 percent), cerebral palsy (0.5 
percent), diabetes (4.5 percent), epilepsy (0.6 percent), AIDS or AIDS 
related condition (0.2 percent), ``mental or emotional'' impairment 
(4.9 percent).
    We assumed in our preliminary analysis that these impairments would 
occur with the same degree of frequency among employed adults who have 
functional disabilities as they do among

[[Page 16989]]

the population of persons with disabilities generally, and so 
multiplied 13% times 8,229,000 workers with reported disabilities. We 
thus estimated that approximately 1,000,000 workers with disabilities 
had impairments that were more likely to be covered as the result of 
the ADAAA and the EEOC's regulations.
 (2) Comments on Preliminary Analysis
    The Commission received a number of public comments from employer 
associations arguing that our figures underestimated the increase in 
the number of individuals who would now be covered under the ADAAA, as 
people with disabilities. One employer association specifically argued 
that the Commission's preliminary estimate that 13 percent of the 
workers with work-limitation disabilities would consistently meet the 
definition of disability under NPRM Sec.  1630.2(j)(5) left out a 
number of disabilities listed in that section such as autism, multiple 
sclerosis, and muscular dystrophy. This comment cited Centers for 
Disease Control (CDC) data that the prevalence rate for autism spectrum 
disorder is between 2 and 6 per 1,000 individuals, or 89,000 to 267,000 
civilian non-institutionalized adults, as well as National Multiple 
Sclerosis Society data estimating that 400,000 Americans have multiple 
sclerosis, and Muscular Dystrophy Association statistics that 
approximately 250,000 Americans have muscular dystrophy. The commenter 
argued that adding these estimates to the 5.8 million non-
institutionalized adults ages 18-64 who have cancer, cerebral palsy, 
diabetes, epilepsy, AIDS or AIDS related condition, or a mental or 
emotional impairment would increase the percentage of workers who would 
consistently meet the definition of disability under proposed section 
1630.2(j)(5) to 15.1 percent. The commenter also noted that data from 
the Families and Work Institute estimates that 21 percent of workers 
are currently receiving treatment for high blood pressure, 7 percent 
have diabetes, and 4 percent are being treated for mental health 
issues. Finally, this commenter pointed out that a number of 
impairments similar to those listed in NPRM Sec.  1630.2(j)(5), but not 
explicitly identified in that section, would presumably also meet the 
expanded definition of disability. Based on these observations, the 
commenter noted that the percentage of workers with covered 
disabilities could be 20 to 40 percent.
    In contrast, some advocates for people with disabilities urged the 
Commission to delete any estimates at all of the numbers of persons who 
may meet the definition of ``disability'' as amended by the ADA 
Amendments Act or who may request reasonable accommodations. These 
groups noted that the broad purposes of the ADA, as compared to the 
more limited purposes of most existing data collections and the 
different definitions of ``disability'' used in those studies, made 
those estimates so uncertain, conjectural, and anecdotal as to be 
unhelpful and potentially detrimental to the goals of the ADAAA.
    In addition, these advocates disputed the Commission's willingness 
in the preliminary analysis to allow that there may be an increase in 
requests for accommodation as a result of the ADAAA or the regulations, 
and therefore disagreed with the underlying premise of attempting to 
estimate the number of individuals with disabilities generally or the 
increase in the number of individuals whose coverage under the ADA 
would now be clarified. Their argument proceeded as follows: Employers 
and employees alike have generally been aware since title I of the ADA 
took effect in 1992 that requested accommodations needed by individuals 
with disabilities must be provided absent undue hardship, and that 
notwithstanding court rulings to the contrary, most employers and 
employees have continued to believe that disabilities include 
impairments such as those examples set forth in Sec.  1630.2(j)(5) of 
the NPRM, e.g., epilepsy, depression, post traumatic stress disorder, 
multiple sclerosis, HIV infection, cerebral palsy, intellectual 
disabilities, bipolar disorder, missing limbs, and cancer. Therefore, 
these advocates argued, it is unlikely that individuals with such 
impairments have been refraining from requesting accommodations up 
until now, or that their requests for accommodation have been denied 
because they did not meet the legal definition of disability. This was 
the practical reality, even if improper denials by employers would have 
been difficult to remedy in the courts, given the pre-Amendments Act 
interpretation of the definition of disability.\6\
---------------------------------------------------------------------------

    \6\ These groups also noted that some individuals with covered 
disabilities will not seek work. Finally, they disputed the utility 
of the attempt to estimate the number of affected workers on the 
grounds the ADAAA simply restores the original interpretation of the 
definition of ``disability,'' and there is no evidence that state or 
local laws with equivalent or broader definitions of disability have 
experienced a significant economic impact.
---------------------------------------------------------------------------

(3) Revised Analysis
(a) Number of Individuals Whose Coverage Is Clarified and Who Are 
Participating in the Labor Force
    The Commission agrees with the comments made by both employer 
groups and advocates for people with disabilities that the referenced 
survey data regarding the numbers of workers with disabilities or with 
specific impairments--which, as noted in the preliminary analysis, 
researchers collected for other purposes--has limited relevance to 
determining the number of workers whose coverage has been clarified by 
the ADAAA. This conclusion qualifies any use of that data in the 
preliminary analysis, as well as in this final regulatory impact 
analysis.
    In light of these limitations, we believe the Commission's 
preliminary analysis significantly underestimated the number of workers 
with disabilities whose coverage is clarified as a result of the ADAAA 
and the final regulations. First, we did not account for several 
impairments actually listed in Sec.  1630.2(j)(3)(iii) of the final 
regulations, such as autism, multiple sclerosis, and muscular 
dystrophy. Second, as was pointed out during inter-agency review of the 
final regulations prior to publication, because the CDC analysis of the 
Census Data on the number of workers with self-reported disabilities 
was not derived in the same way as the ACS data, it would be incorrect 
to assume that CDC data on the prevalence of the impairments in Sec.  
1630.2(j)(3)(iii) reflects the frequency of those impairments among the 
8,229,000 non-institutionalized workers with disabilities aged 18-64 
found by the ACS. Moreover, as discussed below, the figures in the CDC 
analysis of the Census Data are obviously far lower than reported data 
on the incidence of these impairments in the population overall.
    Therefore, for purposes of this final analysis, informed by both 
the public comments and comments received during the inter-agency 
review process under EO 12866, we conclude that the figure of 8.2 
million people with disabilities used in the preliminary analysis, and 
the calculations made with it, significantly underestimated the number 
of workers with impairments that will now be covered as having a 
substantially limiting impairment or record thereof under the ADAAA and 
the final regulations.
    Our revised analysis proceeds as follows. In analyzing the 
available data, we are mindful of the fact that the Amendments Act was 
designed to make it easier to meet the definition of

[[Page 16990]]

disability under the ADA and to expand the universe of people 
considered to have disabilities. Prior to the Amendments Act, the 
Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), 
used the ADA's finding that approximately 43 million Americans had 
disabilities as part of its reason for concluding that the benefits of 
mitigating measures (e.g., medication, corrective devices) an 
individual used had to be taken into account when determining whether a 
person had a substantially limiting impairment. The Amendments Act 
rejected this restrictive definition of disability and explicitly 
removed this finding from the law. It also provided that the 
ameliorative effects of mitigating measures (except ordinary eyeglasses 
or contact lenses) were not to be taken into account in determining 
whether a person's impairment substantially limited a major life 
activity.
    Thus, based on the Amendments Act's rejection of Sutton alone--
apart from the many other changes it made to the definition of a 
substantial limitation in a major life activity--we know that the 
number of people now covered under the ADA as having a substantially 
limiting impairment or a record thereof should be significantly more 
than 43 million. (The Court surmised that the 43 million number was 
derived from a National Council on Disability report, Toward 
Independence (Feb. 1986), available at http://www.ncd.gov/newsroom/publications/1986/toward.htm, which in turn was based on Census Bureau 
data and other studies that used ``functional limitation'' analyses of 
whether individuals were limited in performing selected basic 
activities.)
    Under the ADA as amended, the definition of an impairment that 
substantially limits a major life activity will obviously be broader 
than captured by prior measures, since ``substantial'' no longer means 
``severe'' or ``significantly restricted,'' major life activities now 
include ``major bodily functions,'' the ameliorative effects of 
mitigating measures (other than ordinary eyeglasses or contact lenses) 
are disregarded, and conditions that are episodic or in remission are 
substantially limiting if they would be when active. Based on the 
available data, it is impossible to determine with precision how many 
individuals have impairments that will meet the current definition of 
substantially limiting a major life activity or a record thereof. We do 
know, however, that, at a minimum, this group should easily be 
concluded to include individuals with the conditions listed in Sec.  
1630.2(j)(3)(iii) of the final regulations--including autism, cancer, 
cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, 
muscular dystrophy, and a variety of mental impairments.
    While it is true that, prior to the Amendments Act, many of these 
individuals were assumed to be covered under the law by their 
employers, the reality was that large numbers of individuals with these 
conditions were considered by the courts not to have disabilities, 
based on an individualized assessment of how well the individuals were 
managing with their impairments, taking into account mitigating 
measures. Thus, for purposes of this regulatory assessment, we consider 
individuals with all of these impairments to be individuals whose 
coverage has now been clarified by the Amendments Act.
    By contrast, we are not counting individuals with certain 
conditions also listed in Sec.  1630.2(j)(3)(iii) of the final 
regulations--mobility impairments requiring use of a wheelchair, 
blindness, deafness, and intellectual disabilities-- as individuals 
whose coverage has now been clarified by the Amendments Act since, 
notwithstanding some exceptions, courts consistently found such 
individuals to be covered under the ADA even prior to the Amendments 
Act.
    Thus, we use as a starting point the data reported by government 
agencies and various organizations on the number of individuals in the 
United States with autism, cancer, cerebral palsy, diabetes, epilepsy, 
HIV infection, multiple sclerosis, muscular dystrophy, and a variety of 
mental impairments.\7\ Adding these admittedly disparate and 
potentially overlapping numbers (and acknowledging that some of these 
estimates include children and are not restricted by employment 
status), we can assume a rough estimate of the number of individuals 
with these impairments who would be found substantially limited in a 
major life activity as a result of the Amendments Act, as follows:
---------------------------------------------------------------------------

    \7\ We note that this approach was used by one of the comments 
submitted by an employer association.

--Autism--Approximately 1.5 million individuals in the United States 
are affected by autism.\8\
---------------------------------------------------------------------------

    \8\ See ``What is Autism?'' http://www.autismspeaks.org/whatisit/index.php (last visited Mar. 1, 2011); see also Centers for 
Disease Control, ''Prevalence of the Autism Spectrum Disorders 
(ASDs) in Multiple Areas of the United States, 2000 and 2002,'' 
available at http://www.cdc.gov/ncbddd/autism/documents/AutismCommunityReport.pdf (various studies regarding prevalence in 
children).
---------------------------------------------------------------------------

--Multiple Sclerosis--Approximately 400,000 Americans have multiple 
sclerosis according to the National Multiple Sclerosis Society.\9\
---------------------------------------------------------------------------

    \9\ See ``Who Gets MS?'' http://www.nationalmssociety.org/about-multiple-sclerosis/what-we-know-about-ms/who-gets-ms/index.aspx 
(last visited Mar. 1, 2011).
---------------------------------------------------------------------------

--Muscular Dystrophy--Approximately 250,000 Americans have muscular 
dystrophy according to the Muscular Dystrophy Association.\10\
---------------------------------------------------------------------------

    \10\ See ``Answers to Frequently Asked Questions,'' http://www.mda.org/news/080804telethon_basic_info.html (last visited Mar. 
1, 2011).
---------------------------------------------------------------------------

--Cancer--In 2007, approximately 11,714,000 individuals were living 
with cancer in the United States.\11\
---------------------------------------------------------------------------

    \11\ See ``Cancer Prevalence: How Many People Have Cancer?'' 
http://www.cancer.org/cancer/cancerbasics/cancer-prevalence (last 
visited Mar. 1, 2011).
---------------------------------------------------------------------------

--Diabetes--An estimated 18.8 million adults in the United States have 
diabetes according to the CDC.\12\
---------------------------------------------------------------------------

    \12\ See ``2011 National Diabetes Fact Sheet'' (released Jan. 
26, 2011), http://www.diabetes.org/diabetes-basics/diabetes-statistics/ (last visited Mar. 1, 2011).
---------------------------------------------------------------------------

--Epilepsy--Approximately 3 million Americans \13\ (or subtracting 
approximately 326,000 schoolchildren under 15, about 2.6 million people 
15 or over) have epilepsy, according to the Epilepsy Foundation 
website, and an estimated 2 million people have epilepsy, according to 
the CDC.
---------------------------------------------------------------------------

    \13\ See ``Epilepsy and Seizure Statistics,'' http://www.epilepsyfoundation.org/about/statistics.cfm (last visited Mar. 
1, 2011); CDC, Epilepsy ``Data and Statistics,'' http://www.cdc.gov/Epilepsy/.
---------------------------------------------------------------------------

--Cerebral Palsy--Between 1.5 and 2 million children and adults have 
cerebral palsy in the United States according to the United Cerebral 
Palsy Research and Educational Foundation.\14\
---------------------------------------------------------------------------

    \14\ See ``Cerebral Palsy Fact Sheet,'' http://www.ucp.org/uploads/cp_fact_sheet.pdf (last visited Mar. 1, 2011).
---------------------------------------------------------------------------

--HIV Infection--The CDC estimates that more than 1.1 million Americans 
are living with HIV infection.\15\
---------------------------------------------------------------------------

    \15\ See ``HIV in the United States,'' http://www.cdc.gov/hiv/topics/surveillance/resources/factsheets/us_overview.htm (last 
visited Mar. 1, 2011).
---------------------------------------------------------------------------

--Mental Disabilities--Approximately 21 million individuals (6% or 1 in 
17 Americans) have a serious mental illness according to the National 
Alliance on Mental Illness website (citing National Institute of Mental 
Health reports).\16\
---------------------------------------------------------------------------

    \16\ ``What is Mental Illness: Mental Illness Facts,'' http://www.nami.org/template.cfm?section=About_Mental_Illness (last 
visited Mar. 1, 2011).

    Thus, based on this data, the number of individuals with the 
impairments cited in Sec.  1630.2(j)(3(iii) could be at least 60 
million. In addition, we know that people with many other

[[Page 16991]]

impairments will virtually always be covered under the amended ADA 
definition of an impairment that substantially limits a major life 
activity or record thereof.
    We recognize that the above figures on the prevalence of Sec.  
1630.2(j)(3)(iii) impairments are over-inclusive as a measure of the 
potential number of workforce participants with these impairments, 
since in some instances they include people of all ages and those who 
are not in the labor force. Therefore, we must also identify how many 
of these individuals are currently participating in the labor force.
    Again, we are faced with significant limitations in the data 
available to us. The newest data released in January 2011 by the Bureau 
of Labor Statistics (BLS) estimates that 20 percent of people with 
disabilities age 16 and older participate in the labor force and, of 
those, 13.6 percent are considered to be unemployed.\17\ But the BLS 
uses a functional limitation analysis to determine who has a disability 
which, as we have explained above, is significantly different from the 
definition of disability under the ADA as amended. Hence, we must 
assume this percentage is extremely under-inclusive. The BLS data 
estimates that the labor force participation rate for all civilian non-
institutionalized people 16 and older (including people with and 
without disabilities) is 64 percent. We can thus assume that somewhere 
between 20 and 64 percent of individuals with impairments identified in 
Sec.  1630.2(j)(3)(iii) will be participating in the labor force.
---------------------------------------------------------------------------

    \17\ Participants in the labor force include individuals who 
currently have a job or are actively looking for one. U.S. 
Department of Labor, Office of Disability Employment Policy, 
Disability Employment Statistics Q&A, http://www.dol.gov/odep/categories/research/bls.htm.
---------------------------------------------------------------------------

    Using the 60 million figure, if we assume 20% of individuals with 
impairments identified in Sec.  1630.2(j)(3)(iii) of the final 
regulations are participating in the labor force, then, considering 
those impairments alone, approximately 12 million individuals whose 
coverage is now clarified under the ADA are in the labor force (20% 
times 60 million). If we assume 64% of individuals with these 
disabilities are in the labor force, then the number of labor force 
participants whose coverage is clarified under the ADA is approximately 
38.4 million.

B. Estimated Increase in Reasonable Accommodation Requests and Costs 
Attributable to the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis
    As noted above, our preliminary analysis had concluded there would 
be an additional one million people with disabilities covered under the 
ADA, as amended. The preliminary analysis then attempted to estimate 
the subset of these million workers who would actually need reasonable 
accommodations, relying on a study by Craig Zwerling et al., Workplace 
Accommodations for People with Disabilities: National Health Interview 
Survey Disability Supplement, 1994-1995, 45 J. Occupational & Envtl. 
Med. 517 (2003). According to the Zwerling et. al study, 16% of 
employees with impairments or functional limitations surveyed said they 
need one of 17 listed accommodations. We assumed, therefore, using the 
16% taken from the Zwerling study, that 16% of the one million workers 
whom we identified would also need accommodations, and that the 
resulting 160,000 requests would occur over a period of five years.
    With regard to the potential costs of accommodations, the 
preliminary analysis set forth a review of the data from a series of 
studies providing a wide range of estimates of the mean and median 
costs of reasonable accommodation. The means cited in the data ranged 
from as low as $45 to as high as $1,434, based on a variety of studies 
done by academic and private researchers as well as the Job 
Accommodation Network (JAN). The $45 mean direct cost of accommodation 
was reported in a study (Helen Schartz et al., Workplace 
Accommodations: Evidence-Based Outcomes 27 Work 345 (2006)) examining 
the costs and benefits of providing reasonable accommodations, using 
data from an examination of costs at a major retailer from 1978 to 1997 
(P. D. Blanck, The Economics of the Employment Provisions of the 
Americans with Disabilities Act: Part I--Workplace Accommodations, 46 
DePaul L. Rev. 877 (1997)). The $1,434 mean cost of accommodation cited 
in the preliminary analysis was derived from data reviewed in JAN's 
January 2009 issue of its periodically updated study entitled 
``Workplace Accommodations: Low Cost, High Impact,'' which used 2008 
data. The most recent JAN study, issued September 1, 2010, reported a 
mean accommodation cost of $1,183, based on 2009 data.
    Using estimates of both the mean and median cost of accommodations, 
the preliminary analysis estimated that the ADA Amendments Act and 
these regulations would result in increased costs of reasonable 
accommodation of from $19,000,000 to $38,000,000 annually.
(2) Comments on Preliminary Analysis
    The Commission received a number of public comments from employer 
associations arguing that because we had underestimated the incremental 
increase in the number of individuals with disabilities, we had also 
necessarily underestimated the number of additional requests for 
accommodation that could be attributable to the Amendments Act and the 
final regulations. Thus, one commenter recommended using a figure of 
20% rather than 13% to represent the number of individuals with just 
those impairments identified in NPRM Sec.  1630.2(j)(5) and then 
assumed that the percentage of those individuals who would request an 
accommodation would be 49%. That commenter thus concluded that a total 
of 576,000 individuals covered under Sec.  1630.2(j)(5) would request a 
reasonable accommodation. This commenter also noted that even this 
figure would likely be too low because workers may move from job to job 
and renew accommodation requests, or a worker might need more than one 
accommodation.
    The Commission also received comments from employers on the 
estimated costs of accommodations attributable to the Amendments Act 
and the regulations, primarily contending:

--The specific data on accommodation costs cited by the Commission in 
the preliminary analysis was too low (one employer association asserted 
that the cost will be at least $305.7 million for the first year, with 
administrative costs likely to exceed $101.9 million per year on a 
recurring basis; a state government entity commented that the 
Commission should take into account additional administrative costs 
employers may bear in order to comply, but did not attempt to estimate 
these additional costs);
--Each additional accommodation request will affect an employer's 
ability to cope with the overall number of requests; and
--The undue hardship defense is insufficient to address the financial 
concerns of small employers.

    By contrast, disability rights groups asserted that even if the 
Commission's estimate of 160,000 additional workers who would request 
accommodations as a result of the ADA Amendments Act

[[Page 16992]]

provided an outer estimate of the number of affected workers, it was 
too high of a number to gauge the impact of the Amendments Act, in part 
because the Amendments Act affected those workers whom Congress had 
always intended to be covered by the ADA and because many employers 
were treating them as covered.
    With regard to the costs of accommodations, a number of comments 
from academics and disability and civil rights organizations concurred 
with our preliminary conclusion that the cost would be below $100 
million and that no economic impact analysis was required or feasible, 
and/or argued that the Commission's preliminary analysis had overstated 
the potential economic impact. Specifically, they argued that the 
Commission's rough estimates of the number and cost of accommodation 
requests were speculative and were unnecessary to conclude that the 
Act's costs are less than $100 million, since available research 
overwhelmingly demonstrates that accommodation costs are modest, and 
because neither the Amendments Act nor the proposed regulations change 
the basic structure of the original ADA. They also argued that the 
Commission's method of interpreting certain reasonable accommodation 
data resulted in overestimation of costs; that many accommodations for 
specific types of impairments have no or very little cost; and that 
over time, ongoing medical and technological advances can be reasonably 
expected to reduce both existing and new accommodation costs associated 
with the ADA or the Amendments Act.
    Professor Peter Blanck of the Burton Blatt Institute at Syracuse 
University, a co-author of the 2006 ``Workplace Accommodations: 
Evidence-Based Outcomes'' study, filed public comments offering a 
number of clarifications specifically regarding citation to his study's 
data, and arguing that the Commission had overstated the cost of 
accommodations, because the preliminary analysis used a ``mean'' (or 
average, calculated by adding all values in a dataset and dividing by 
the number of points in the dataset), rather than a ``median'' (the 
middle point in a dataset).
    Professor Blanck considered the median a better measure of the cost 
of accommodations because so many accommodations have no cost. He 
pointed out that based on his research, 49.4% of accommodations had 
zero direct costs. For the 50.6% of accommodations with a cost greater 
than zero, the median cost in the first calendar year was $600. 
Professor Blanck further found that for all accommodations, including 
those with a zero cost, the median cost of accommodations was found to 
be $25.
    Of key importance, no public comments contradicted the Commission's 
observation in the preliminary analysis that there is a paucity of data 
on the costs of providing reasonable accommodation, and that much of 
the existing data is obtained either through limited sample surveys or 
through surveys that collect limited information. While some employer 
groups disputed the Commission's cost estimates, none cited any 
research or studies on actual accommodation costs.
(3) Revised Analysis
    Our revised analysis of potential costs for additional 
accommodations begins with a revised estimate of the number of new 
accommodation requests, based on the upward adjustment of the number of 
people with disabilities whose coverage is clarified under the 
Amendments Act. As we note above, that range is 12 million to 38.4 
million people.
(a) Estimated Number of New Accommodation Requests
    Estimating the increase in expected requests for reasonable 
accommodations attributable to the Amendments Act and the final rule is 
difficult because it requires assuming that some number of individuals 
with disabilities will now perceive themselves as protected by the law 
and hence ask for accommodation, but had not previously assumed they 
were covered and therefore had not asked for accommodations. In 
reality, individuals with disabilities such as epilepsy, diabetes, 
cancer, and HIV infection may have considered themselves, and may have 
been treated by their employers as, individuals who could ask for 
accommodations such as flexible scheduling or time off. Moreover, in 
many cases, such accommodations may have been requested and provided 
without anyone in the process even considering such workplace changes 
as being required reasonable accommodations under the ADA.
    Recognizing that it is impossible to determine with precision the 
number of individuals in the labor force whose coverage is now 
clarified under the law and who are likely to request and require 
reasonable accommodations as a result of that increased clarity, we 
have tried to determine the number of such individuals by taking the 
estimated number of labor force participants whose coverage has been 
clarified and multiplying it by the percentage of employees who report 
needing accommodations.
    According to the Zwerling et al. study cited in our preliminary 
analysis, 16% of employees with impairments or functional limitations 
surveyed said they needed one of 17 listed accommodations. Workplace 
Accommodations for People with Disabilities: National Health Interview 
Survey Disability Supplement, 1994-1995, 45 J. Occupational & Envtl. 
Med. 517 (2003)). This 16% figure may be an overestimate of the 
percentage of those employees whose coverage has been clarified by the 
Amendments Act who will actually need accommodations, since of the 17 
accommodations listed in the study, a number of them would more likely 
have been needed by individuals whose coverage was not questioned prior 
to the Amendments Act. For example, these accommodations include 
accessible restrooms, automatic doors, installation of a ramp or other 
means of physical access, and the provision of sign language 
interpreters or readers. These are types of accommodations that would 
apply specifically to individuals who were clearly covered under the 
ADA, even prior to the Amendments Act. Only 10.2% of the employees 
surveyed asked for accommodations such as break times, reduced hours, 
or job redesign, which are the more likely accommodations to be 
requested by those individuals whose coverage has now been clarified. 
Nevertheless, because the Zwerling study surveyed a limited range of 
people with disabilities, we will use the full 16% figure.
    Applying the 16% figure to represent the percentage of individuals 
whose coverage has been clarified and who would need reasonable 
accommodations, the resulting increase in reasonable accommodations 
requested and required as a result of the Amendments Act could range 
from approximately 2 million (assuming 12 million labor force 
participants) to 6.1 million (assuming 38.4 million labor force 
participants).
(b) Factors Bearing on Reasonable Accommodation Costs
    After fully considering the preliminary analysis and the public 
comments, and after further consideration of the issues, the Commission 
is persuaded of the following facts concerning the costs of 
accommodations:

--Of those reasonable accommodations requested and required, only a 
subset will have any costs associated with them. The studies show that 
about half of accommodations have zero or no cost, and had findings 
regarding

[[Page 16993]]

the mean cost ranging from $45 and $1,183. But most, if not all, of 
these studies have included accommodations for people who use 
wheelchairs, who are deaf, or who are blind. These tend to be the most 
expensive accommodations (e.g., physical access changes such as ramps, 
automatic doors, or accessible bathrooms; sign language interpreters 
and readers; Braille and/or computer technology for reading). Passage 
of the Amendments Act and promulgation of these regulations do not 
affect these individuals or render employers newly responsible for 
providing such accommodations, since there was never any dispute, even 
prior to enactment of the Amendments Act, that people with these kinds 
of impairments met the definition of disability. Therefore, any 
estimate of newly imposed costs of accommodations should generally 
exclude these types of higher-cost accommodations.
--To the extent the calculation of any mean accommodation cost is 
derived from data that includes accommodations that are purchased for a 
one-time cost but will be used over a period of years once owned by the 
employer (either for that employee's tenure or for future employees), 
the annual cost is actually much lower than the one-time cost. For 
example, physical renovations and accessibility measures, equipment, 
furniture, or technology, among other accommodations, may be used over 
a period of many years at no additional cost to the employer.
--A small percentage of people whose coverage has been clarified may 
need some physical modifications to their workspace--e.g., the person 
with mild cerebral palsy who might need voice recognition software for 
difficulty with keyboarding, or the person whose multiple sclerosis 
affects vision who needs a large computer screen.
--Most of the people who will benefit from the amended law and 
regulations are people with conditions like epilepsy, diabetes, cancer, 
HIV infection, and a range of mental disabilities. The types of 
accommodation these individuals will most commonly need are changes in 
schedule (arrival/departure times or break times), swapping of marginal 
functions, the ability to telework, policy modifications (e.g., 
altering for an individual with a disability when or how a task is 
performed, or making other types of exceptions to generally-applicable 
workplace procedures), reassignment to a vacant position for which the 
individual is qualified, time off for treatment or recuperation, or 
other similar accommodations.
--Many of these accommodations will not require significant financial 
outlays. Some accommodations, such as revising start and end times, 
allowing employees to make up hours missed from work, and creating 
compressed workweek schedules, may result in administrative or other 
indirect costs. However, they may also result in cost savings through 
increased retention, engagement, and productivity. Other 
accommodations, such as providing special equipment needed to work from 
home, will have costs, but might also result in cost savings (e.g., 
reduced transportation costs, environmental benefits, etc.).
--Time off, both intermittent and extended, may have attendant costs, 
such as temporary replacement costs and potential lost productivity. 
But these, too, may be offset by increased retention and decreased 
training costs for new employees.
--With respect to those individuals whose coverage has been clarified 
and who both request and need accommodation, employers will sometimes 
provide whatever is requested based on existing employer policies and 
procedures (e.g., use of accrued annual or sick leave or employer 
unpaid leave policies, employer short- or long-term disability 
benefits, employer flexible schedule options guaranteed by a collective 
bargaining agreement, voluntary transfer programs, or ``early return to 
work'' programs), or under another statute (e.g., the Family and 
Medical Leave Act or workers' compensation laws).
(c) Calculation of Mean Costs of Accommodations Derived From Studies
    We disagree with Professor Blanck's observation that the median 
cost is the appropriate value for this analysis because this analysis 
seeks to estimate the total cost of new accommodations across the 
entire economy resulting from the Amendments Act and final rule. Using 
the median value in this case would not capture the total cost to the 
nation's economy.
    For that reason, we will rely on the range of mean costs of 
accommodations derived from various studies and will attempt to make a 
reasonable estimation of the likely mean cost of accommodation for 
those employees whose coverage has been clarified as a result of the 
Amendments Act. In so doing, we again recognize that references to this 
data must be qualified by (1) the fact that high cost outlier 
accommodations are not ones likely to be requested by those whose 
coverage has been clarified by the Amendments Act and the final rule, 
and (2) the fact that reasonable accommodations are not needed, 
requested by, or provided for all individuals with disabilities.
    The Job Accommodation Network (JAN) conducts an ongoing evaluation 
of employers that includes accommodation costs, using a questionnaire 
to collect data from employers who have consulted JAN for advice on 
providing reasonable accommodation. As noted above, the most recent JAN 
study (Workplace Accommodations: Low Cost, High Impact (JAN 2009 Data 
Analysis) (Sept. 1, 2010)) found that the median cost of reasonable 
accommodations that had more than a zero cost reported by JAN clients 
was $600, and the mean cost was $1,183.\18\ JAN's cumulative data from 
2004-2009 shows that employers in their ongoing study report that a 
high percentage (56%) of accommodations cost nothing to provide.
---------------------------------------------------------------------------

    \18\ Information provided to the EEOC by Beth Loy, Ph.D., Job 
Accommodation Network.
---------------------------------------------------------------------------

    According to JAN,\19\ its calculation of the $1,183 mean cost of 
accommodation was derived from a survey of 424 employers. Two of those 
employers reported outlying costs of $100,000 each, in both cases for 
the design and purchase of information system databases for proprietary 
information that would be accessible to employees with vision 
impairments. Such employees would have likely been covered by the ADA 
prior to the Amendments Act, and the type of higher-cost technological 
accommodation at issue is not the type of accommodation that will 
likely be needed by most of those whose coverage has been clarified by 
virtue of the Amendments Act and final regulations. Moreover, in each 
case, the database was being developed for business reasons, and not 
specifically as an accommodation.\20\
---------------------------------------------------------------------------

    \19\ Id.
    \20\ Id. The survey data received by JAN did not indicate 
whether the $100,000 reported cost was the total cost of the 
database or the added cost of accessibility. Significantly, one of 
these employers is a federal agency that was required to purchase an 
accessible database under section 508 of the Rehabilitation Act of 
1973, as amended, so would have had to do so anyway. Therefore, it 
is not clear that it would be appropriate to consider this a cost of 
accommodating a single employee under section 501 of the 
Rehabilitation Act, as amended. The other employer was a federal 
contractor, and may therefore have had obligations under its 
contract and/or section 503 of the Rehabilitation Act, as amended, 
to include accessible features. Id.
---------------------------------------------------------------------------

    According to JAN, if these two outlier accommodations are deleted 
from the

[[Page 16994]]

data set, the mean cost of accommodation based on the remaining 422 
reported accommodations in the survey drops to $715.\21\ Even this 
figure may overestimate the mean cost of accommodations needed for 
those whose coverage has been clarified by the Amendments Act, most of 
which we believe will have less significant costs. Nonetheless, we will 
use $715 as a starting point for calculating the annual mean cost of 
accommodations attributable to the changes in the definition of a 
substantially limiting impairment.
---------------------------------------------------------------------------

    \21\ Id.
---------------------------------------------------------------------------

    The mean cost of $715 represents the average one-time cost of 
providing a reasonable accommodation. However, JAN reports that many of 
these accommodations reported in the study involved ones that are then 
used by the employee (or additional employees) on an ongoing basis, in 
many cases presumably for a period of years. These included items such 
as software, chairs, desks, stools, headsets, keyboards, computer mice, 
sound absorption panels, lifting devices, and carts.\22\ Given the 
nature of these items, their useful life, and ever-advancing 
technology, we assume for purposes of this analysis a useful life of 
five years for these items. If those accommodations that can be used on 
an ongoing basis are used for five years, this would reduce the mean 
annual cost to one-fifth of $715 (or $143, which we will round to $150 
for purposes of this analysis) with respect to those accommodations. In 
addition, the mean of $715 includes one-time costs of more expensive 
accommodations such as equipment, technology, and physical workplace 
accessibility for individuals who were already covered, whereas we 
believe the cost of the majority of accommodations associated with 
those whose coverage is clarified by the Amendments Act will be lower. 
Therefore, any estimate of the mean cost of accommodations overall may 
exaggerate the cost of accommodations for such individuals. Thus, for 
purposes of considering the annual impact pursuant to EO 12866, we 
believe it is appropriate to use the estimated lower mean of $150.
---------------------------------------------------------------------------

    \22\ Id.
---------------------------------------------------------------------------

(d) Accommodation Cost Scenarios
    Using our estimates above regarding the possible range of the 
number of individuals whose coverage is clarified under the definition 
of a substantially limiting impairment or record thereof and who are 
likely to request and require accommodation, we can project the 
following estimates of the likely incremental cost of providing 
reasonable accommodation attributable to the Amendments Act and the 
final rule, using a $150 mean annual cost of accommodation. Since we 
would not expect all of these new accommodation requests to be made in 
a single year, we will assume they will be made over a period of five 
years, with estimated costs as follows, using the above-discussed 
estimate of the incremental increase in reasonable accommodations 
requested and required as a result of the Amendments as ranging from 2 
million to 6.1 million:

400,000 new accommodations annually (2 million over 5 years) x $150 = 
$60 million annually

1.2 million new accommodations annually (6.1 million over 5 years) x 
$150 = $183 million annually

    Thus, the lower-bound estimated cost of the incremental increase in 
accommodations attributable to the Amendments Act and the final 
regulations would be $60 million annually, and the higher-bound 
estimated cost would be $183 million. The Commission recognizes that 
the range of cost estimates is quite large. However, given the lack of 
available data and the limitations in existing data, the resultant high 
level of uncertainty about the number of individuals whose coverage is 
clarified under the Amendments Act, the uncertainty about the number of 
such individuals who would be newly asking for accommodations, and the 
uncertainty about the actual mean cost of the accommodations that might 
be requested by these individuals, we are not able to provide more 
precise estimates of the costs of new accommodations attributable to 
the ADA Amendments Act and the final rule.

C. Estimated Increase in Administrative and Legal Costs Attributable to 
the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis
    In the preliminary analysis, the Commission posited that 
administrative costs of complying with the ADA Amendments Act might be 
estimated at $681 in a human resource manager's time,\23\ plus the 
fees, if any, charged for any training course attended.
---------------------------------------------------------------------------

    \23\ Occupational Outlook Handbook, 2008-09 Edition, http://stats.bls.gov/OCO/OCOS021.htm (downloaded September 2, 2009).
---------------------------------------------------------------------------

    With respect to training costs, we noted that the EEOC provides a 
large number of free outreach presentations for employers, human 
resource managers, and their counsel, as well as fee-based training 
sessions offered at approximately $350. Therefore, the preliminary 
analysis offered a rough estimate of these administrative costs, even 
if fee-based training were sought, of $1,031. The preliminary analysis 
assumed that these figures will underestimate costs at large firms but 
will overestimate costs at small firms and at firms that do not have to 
alter their policies. This would have resulted in a one time cost of 
approximately $70 million, although the Commission was unable to 
identify empirical research to support these very rough estimates. This 
figure assumed firms with fewer than 150 employees would incur no 
administrative costs from this rule. The preliminary analysis further 
assumed that smaller entities are less likely to have detailed 
reasonable accommodation procedures containing information relating to 
the definition of disability that must be revised or deleted. We 
posited in our preliminary analysis that larger firms, such as the 
18,000 firms with more than 500 employees, would be more likely to have 
formal procedures that may need to be revised.\24\
---------------------------------------------------------------------------

    \24\ http://www.sba.gov/advo/research/us_06ss.pdf (downloaded 
Sept. 2, 2009).
---------------------------------------------------------------------------

    The preliminary analysis also found that while there may be 
additional costs associated with processing and adjudicating additional 
requests for accommodation, these costs may be offset in part by the 
fact that application of the revised definition of ``disability'' will 
decrease the time spent processing accommodation requests generally. 
There were no findings or assumptions regarding increased or decreased 
litigation costs in the preliminary analysis.
(2) Comments on Preliminary Analysis
    Various employer groups commented that the definitional changes 
will cause confusion and litigation, with associated costs, and that 
the Commission's preliminary estimate of training and related costs was 
not based on sufficient research. Specifically, they commented that the 
Commission had under-estimated the costs that have been or will be 
incurred by employers to update internal policies and procedures to 
reflect the broader definition of disability and to train personnel to 
ensure appropriate compliance with the ADAAA and the final regulations, 
and that the Commission should have taken into account not just 
salaries but also benefits paid to such individuals to represent the 
cost of time spent on such training. They also asserted that there

[[Page 16995]]

would be recurring costs of one-third of first year costs (which they 
estimated would be more than $305 million for all employers).
    By contrast, other commenters asserted that the Commission's 
preliminary analysis overestimated administrative costs because it 
failed to account for administrative benefits. They argued that costs 
associated with needed updates to employer policies and procedures will 
also have the benefit of simplifying and streamlining those policies 
and procedures and the coverage determination part of the interactive 
process.
(3) Revised Analysis of Administrative Costs
    The Commission concludes that it inappropriately assessed the 
additional training costs that would be incurred by employers with 150 
or more employees. Employers of this size are likely to receive 
training on both the ADAAA and the final regulations as part of fee-
based or free periodic update training on EEO topics that they 
otherwise regularly attend. Our preliminary analysis did not account 
for this fact, but rather assumed that most or all such employers would 
attend a training on the regulations, at a cost of $350.00, that they 
would not otherwise have attended.
    Even if some larger employers decide to attend an EEO training in a 
particular year because of the issuance of the final regulations (when 
they otherwise would not have attended such a training), information 
about the final regulations is likely to account for only a fraction of 
the training (typically the EEOC's one- and two-day training sessions 
involve multiple topics). Therefore, only a fraction of the $350.00 we 
assumed an employer would spend on training can be said to be a cost 
resulting from the ADAAA or the final regulations.
    The Commission also concludes that it should have accounted for 
administrative costs borne by employers with 15 to 149 employees. These 
costs are limited, however, by the fact that such businesses generally 
tend to lack formal reasonable accommodation policies and usually avail 
themselves of free resources (e.g., guidance and technical assistance 
documents on the EEOC's Web site) in response to particular issues that 
arise, rather than receiving formal training on a regular basis. 
Additionally, smaller employers are called upon to process far fewer 
reasonable accommodation requests and may more easily be able to 
establish undue hardship, even where an accommodation is requested by 
someone whose coverage has been clarified under the ADAAA.
    We also note that emphasizing the anticipated ``difference'' in 
compliance costs between smaller and larger entities may overlook some 
specific benefits incurred by smaller entities. For example, the EEOC 
makes available more free outreach and training materials to employers 
than it does paid trainings. Moreover, as noted above, smaller entities 
are less likely to have detailed reasonable accommodation procedures 
containing information relating to the definition of disability that 
must be revised or deleted. The EEOC expects to issue new or revised 
materials for small businesses as part of revisions made to all of our 
ADA publications, which include dozens of enforcement guidances and 
technical assistance documents, some of which are specifically geared 
toward small business (e.g., ``The ADA: A Primer for Small Business,'' 
http://www.eeoc.gov/ada/adahandbook.html).
    Notwithstanding the one-time costs to some employers associated 
with making and implementing those revisions to their internal 
procedures, the Commission notes that there will be significant time 
savings that will be achieved on an ongoing basis once employers begin 
utilizing their newly simplified procedures. Additionally, after 
initial revision, subsequent updates will not be needed more frequently 
than they were prior to the ADAAA and final regulations, and there is 
no reason to anticipate recurring costs of any significance.
(4) Analysis of Legal Costs
    It is difficult to predict either the increase or decrease in legal 
costs as a result of the Amendments Act and the final rule.
    We anticipate that the legal fees and litigation costs regarding 
whether an individual is a person with a disability within the meaning 
of the ADA will significantly decrease in light of the ADAAA and its 
mandate that coverage be construed broadly. However, in those cases 
where courts would previously have declined to reach the merits of ADA 
claims based on a determination that a plaintiff did not have a 
disability, legal fees and litigation costs regarding the merits of the 
case--e.g., whether an individual was subject to discrimination on the 
basis of his or her disability, whether an individual with a disability 
is ``otherwise qualified,'' whether an accommodation constitutes an 
``undue hardship,'' etc.--might increase as a result of more cases 
proceeding to the merits.
    In addition, we anticipate that in light of the ADAAA, including 
the expanded ``regarded as'' definition of disability contained in the 
ADAAA, there will be an increase in the number of EEOC charges and 
lawsuits filed. In particular, we anticipate that more individuals with 
disabilities might file charges with the Commission. Moreover, we 
anticipate that plaintiffs' lawyers, who previously might not have 
filed an ADA lawsuit because they believed that an employee would not 
be covered under the Supreme Court's cramped reading of the term 
``disability,'' will now be more inclined to file lawsuits in cases 
where the lawyers believe that discrimination on the basis of 
disability--broadly defined--has occurred. As a result, we believe that 
there may be additional legal fees and litigation costs associated with 
bringing and defending these claims, but we have no basis on which to 
estimate what those costs might be.
    There will be costs to the Commission primarily for increased 
charge workload. The Congressional Budget Office (CBO) estimated these 
costs based on H.R. 3195, a prior version of the legislation that 
became the ADAAA. The CBO found that the bill would increase this 
workload by no more than 10 percent in most years, or roughly 2,000 
charges annually. Based on the EEOC staffing levels needed to handle 
the agency's current caseload, CBO expected that implementing H.R. 3195 
would require 50 to 60 additional employees. CBO estimated that the 
costs to hire those new employees would reach $5 million by fiscal year 
2010, subject to appropriation of the necessary amounts. (H.R. 3195, 
ADA Amendments Act of 2008, Congressional Budget Office, June 23, 2008, 
at 2.) Nevertheless, we note that although charge data indicate an 
increase in ADA charges over the period of time since the Amendments 
Act became effective, this increase may be attributable to factors 
unrelated to the change in the ADA definition of disability. For 
example, government research has found a higher incidence of 
termination of individuals with disabilities than those without 
disabilities during economic downturns. Kaye, H. Steven, ``The Impact 
of the 2007-09 Recession on Workers with Disabilities,'' Monthly Labor 
Review Online (U.S. Dept. of Labor Bureau of Labor Statistics, Oct. 
2010, Vol. 133, No. 10), http://www.bls.gov/opub/mlr/2010/10/art2exc.htm (last visited Mar. 1, 2010). We also note that ADA charges 
were steadily rising over a period of years even prior to enactment of 
the ADA Amendments Act. To the extent that factors other than the 
Amendments

[[Page 16996]]

Act explain or partially explain the increase in ADA charges since the 
Act took effect, the increase in charges would not be attributable to 
the Amendments Act or the final regulations.
    In sum, while there might be a potential increase in legal fees 
attributable to the ADAAA or the final regulations, we are unable to 
attach any dollar figure to what that increase might be.

II. Estimated Benefits Attributable to the ADAAA and the Final 
Regulations

A. Benefits of Accommodations Attributable to the ADAAA and the Final 
Regulations

(1) Summary of Preliminary Analysis
    While the preliminary impact analysis made reference to various 
benefits of the rule in the discussion of assumptions and its review of 
various projected costs, it did not separately itemize, review, or 
quantify these benefits.
(2) Comments on Preliminary Analysis
    Commenters said that the EEOC did not adequately account for the 
benefits of reasonable accommodation. In particular, Professor Peter 
Blanck submitted seven of his studies and argued that ``research shows 
accommodations yield measurable benefits with economic value that 
should be deducted from the cited costs to yield a net value.'' \25\
---------------------------------------------------------------------------

    \25\ Blanck, P.D. (1994), Communicating the Americans with 
Disabilities Act: Transcending Compliance--A case report on Sears 
Roebuck & Co., The Annenberg Washington Program. (also in J. Burns 
(Ed.), Driving Down Health Care Costs, at 209-241, New York, Panel 
Publishers; Blanck, P.D. (1996); Communicating the Americans with 
Disabilities Act: Transcending Compliance--1996: Follow-up report on 
Sears, Roebuck & Co. Washington, D.C.: The Annenberg Washington 
Program. (also published as: Blanck, P.D. (1996), Transcending Title 
I of the Americans with Disabilities Act: A Case Report on Sears, 
Roebuck & Co., Mental & Physical Disability Law Reporter, 20(2), 
278-86) (mean cost was $45.20 on 71 accommodations made at Sears 
between 1993-1995)); Blanck, P.D. & Steele, P. (1998), The Emerging 
Role of the Staffing Industry in the Employment of Persons with 
Disabilities--A Case Report on Manpower Inc. Iowa City, IA: Iowa CEO 
and Law, Health Policy and Disability Center (data from 10 no-cost 
case studies of accommodation by Manpower); Hendricks, D.J., 
Batiste, L., Hirsh, A., Dowler, D. Schartz, H., & Blanck, P. (Fall 
2005), Cost and Effectiveness of Accommodations in the Workplace: 
Preliminary Results of a Nationwide Study. Disability Studies 
Quarterly, Part I, 25(4); Schartz, H., Schartz, K., Hendricks, D.J., 
& Blanck, P. (2006), Workplace Accommodations: Empirical Study of 
Current Employees, Mississippi Law Journal, 75, 917-43 (for those 
employers providing monetary estimates of benefits of accommodation, 
81.3% reported benefits that offset the costs; 61.3% reported 
benefits outweighing the cost, 20% reported benefits that equaled 
the costs, and the remaining 18.7% reported costs exceeding 
benefits); Schartz, H., Hendricks, D.J., & Blanck, P. (2006), 
Workplace Accommodations: Evidence-Based Outcomes, Work, 27, 345-354 
(addressing ``disability-related direct cost,'' the amount of direct 
cost that is more than the employer would have paid for an employee 
in same position without a disability); Schur, L., Kruse, D. Blasi, 
J, & Blanck, P. (2009), Is Disability Disabling In All Workplaces?: 
Disability, Workplace Disparities, and Corporate Culture, Industrial 
Relations, 48(3), 381-410, July (finding disability is linked to 
lower average pay, job security, training, and participation in 
decisions, and to more negative attitudes toward the job and 
company, but finding no disability ``attitude gaps'' in workplaces 
rated highly by all employees for fairness and responsiveness).
---------------------------------------------------------------------------

    Professor Blanck states that ``research shows employees who receive 
accommodations are more productive and valued members of their 
organizations.'' He asserts that the contributions of accommodated 
employees with disabilities show measurable economic value for 
organizations, and that the analysis of economic impact must therefore 
take into account both direct benefits and indirect benefits as a 
potential offset to any potential accommodation costs reviewed in the 
preliminary analysis or cited by the employer groups. Examples of 
direct benefits reported by employers in these research studies include 
the ability to retain, hire, and promote qualified personnel; increased 
employee attendance (productivity); avoidance of costs associated with 
underperformance, injury, and turnover; benefits from savings in 
workers' compensation and related insurance; and increased diversity. 
The authors also note a number of indirect benefits: Improved 
interactions with co-workers; increased company morale, productivity, 
and profitability; improved interactions with customers; increased 
workplace safety; better overall company attendance; and increased 
customer base.
    Professor Blanck's statement is that based on the studies he has 
reviewed and submitted, the quantified net benefits of providing 
accommodations are a significant offset to any cost incurred and, 
indeed, result in a net value. For example, he summarized the specific 
accommodation benefit data found in the 2006 ``Workplace 
Accommodations: Evidence-Based Outcomes'' study, as follows:

--Monetary estimates of direct benefits were provided by 95 respondents 
and are a median of $1,000 total when zero benefit estimates are 
included. When zero benefit estimates are excluded, the median benefit 
is $5,500 (based on 62 respondents). Some respondents were unable to 
provide exact estimates, but they could provide estimates within ranges 
(of 75 respondents, 66.4% reported direct benefits greater than $1,000, 
16.1% reported direct benefits between $500 and $1,000, 10.2% reported 
direct benefits between $100 and $500, and the remaining 7.3% reported 
direct benefits less than $100).
--Respondents were asked to estimate the value of indirect benefits 
(e.g., improved interactions at work, improved morale, and increased 
company productivity, safety, attendance, and profitability, etc.). Out 
of 77 respondents who were able to do so, 57.1% reported no indirect 
benefits, but 33 respondents did report indirect benefits greater than 
zero, at a median value of $1,000. An additional 58 respondents were 
able to estimate the value of indirect benefits categorically in 
ranges. When combined with the 33 who reported exact estimates, 48.4% 
reported indirect benefits greater than $1,000, 18.7% reported a value 
between $500 and $1,000, 19.8% reported a value between $100 and $500, 
and the remaining 13.2% reported a value less than $100.
--This study reports conservative estimates of the Calendar Year Net 
Benefit by obtaining the difference between the First Calendar Year 
Direct Cost and the Direct Benefit estimates. This comparison was made 
for 87 respondents; the mean benefit was $11,335 and the median was 
$1,000. For 59.8% the direct benefits associated with providing the 
accommodation more than offset the direct costs, and for 21.8% benefits 
and costs equaled each other (the remaining 18.4% reported costs that 
were greater than benefits).
(3) Conclusions Regarding Benefits of Accommodations Attributable to 
the ADAAA and the Final Regulations
    We agree with the commenters who noted the existence of surveys 
documenting both tangible and intangible benefits through the provision 
of reasonable accommodations. For example, in its most recent survey of 
employers, the Job Accommodation Network found that the following 
percentage of respondents reported the following benefits from 
accommodations they had provided to employees with disabilities:

------------------------------------------------------------------------
                                                                Percent
------------------------------------------------------------------------
Direct benefits:
    Company retained a valued employee.......................         89
    Increased the employee's productivity....................         71

[[Page 16997]]

 
    Eliminated costs associated with training a new employee.         60
    Increased the employee's attendance......................         52
    Increased diversity of the company.......................         43
    Saved workers' compensation or other insurance costs.....         39
    Company hired a qualified person with a disability.......         14
    Company promoted an employee.............................         11
Indirect benefits:
    Improved interactions with co-workers....................         68
    Increased overall company morale.........................         62
    Increased overall company productivity...................         59
    Improved interactions with customers.....................         47
    Increased workplace safety...............................         44
    Increased overall company attendance.....................         38
    Increased profitability..................................         32
    Increased customer base..................................         18
------------------------------------------------------------------------

    Job Accommodation Network (Original 2005, Updated 2007, Updated 
2009, Updated 2010). Workplace Accommodations: Low Cost, High Impact, 
http://AskJAN.org/media/LowCostHighImpact.doc (last visited Mar. 1, 
2011).
    The JAN study did not attempt to attach numerical figures to the 
direct benefits noted in the survey. However, taking one of those 
benefits--increased retention of workers--the Commission notes that 
employers should experience cost savings by retaining rather than 
replacing a worker. According to data from the Society for Human 
Resource Management (SHRM), the average cost-per-hire for all 
industries in 2009 was $1,978. Society for Human Resource Management, 
SHRM 2010 Customized Human Capital Benchmarking Report (All Industries 
Survey) at 13 (2010). Such costs increase for knowledge based 
industries, such as high-tech where the cost-per-hire was $3,045. Id.; 
Society for Human Resource Management, SHRM 2010 Customized Human 
Capital Benchmarking Report (High Tech Industries Survey) at 13 (2010). 
In addition, the time-to-fill for positions in all industries was an 
average of 27 days, but time to fill for high-tech positions increased 
to an average of 35 days. Id.; All Industries Survey at 13.
    In addition, although limited, the existing data shows that 
providing flexible work arrangements such as flexible scheduling and 
telecommuting reduces absenteeism, lowers turnover, improves the health 
of workers, and increases productivity. See Council of Economic 
Advisors, Work-Life Balance and the Economics of Workplace Flexibility 
(March 2010) (available at http://www.whitehouse.gov/blog/2010/03/31/economics-workplace-flexibility).
    The Commission does not feel there is sufficient data to state 
unequivocally, as Professor Blank does, that there is always a net 
value to providing accommodations. However, it is apparent from surveys 
conducted of both employers and employees that there are significant 
direct and indirect benefits to providing accommodations that may 
potentially be commensurate with the costs.
    The Commission also concludes that there are potential additional 
benefits regarding the provision of accommodations made by the ADAAA. 
Specifically:

--The changes made by the Amendments Act and the clarity regarding 
coverage provided by the Act and the final regulations should make the 
reasonable accommodation process simpler for employers. For example, to 
the extent employers may have spent time before reviewing medical 
records to determine whether a particular individual's diabetes or 
epilepsy satisfied the legal definition of a substantially limiting 
impairment, there may be a cost savings in terms of reduced time spent 
by front-line supervisors, managers, human resources staff, and even 
employees who request reasonable accommodation.
--The Amendments Act reverses at least three courts of appeals 
decisions that previously permitted individuals who were merely 
``regarded as'' individuals with disabilities to be potentially 
entitled to reasonable accommodation. The Amendments Act and the 
regulations clearly provide that individuals covered only under the 
``regarded as'' prong of the definition of disability will not be 
entitled to reasonable accommodation. This change benefits employers by 
both clarifying and limiting who is entitled to reasonable 
accommodations under the ADA.

B. Other Benefits Attributable to the ADAAA and the Final Regulations

    Apart from specific benefits regarding the provision of 
accommodations, the Commission notes that a number of monetary and non-
monetary benefits may result from the ADAAA and the final regulations, 
including but not limited to specifically the following:
(1) Efficiencies in Litigation
--The Amendments Act and final regulations will make it clearer to 
employers and employees what their rights and responsibilities are 
under the statute, thus decreasing the need for litigation regarding 
the definition of disability.
--To the extent that litigation remains unavoidable in certain 
circumstances, the Amendments Act and the final regulations reduce the 
need for costly experts to address ``disability'' and streamline the 
issues requiring judicial attention.
(2) Fuller Employment
--Fuller employment of individuals with disabilities will provide 
savings to the federal government and to employers by potentially 
moving individuals with disabilities into the workforce who otherwise 
are or would be collecting Social Security Disability Insurance (SSDI) 
from the government, or collecting short- or long-term disability 
payments through employer-sponsored insurance plans.
--Fuller employment of individuals with disabilities will stimulate the 
economy to the extent those individuals will have greater disposable 
income and enhance the number of taxpayers and resulting government 
revenue.

    The Commission has not undertaken to quantify these benefits in 
monetary terms. However, we assume for purposes of our analysis that 
the sum total of these benefits will be significant.
(3) Non-discrimination and Other Intrinsic Benefits
    The Commission also concludes that a wide range of qualitative, 
dignitary, and related intrinsic benefits must be considered. These 
benefits include the values identified in EO 13563, such as equity, 
human dignity, and fairness. Specifically, the qualitative benefits 
attributable to the ADA Amendments Act and the final rule include but 
are not limited to the following:

--Provision of reasonable accommodation to workers who would otherwise 
have been denied it benefits workers and potential workers with 
disabilities by diminishing discrimination against qualified 
individuals and by enabling them to reach their full potential. This 
protection against discrimination promotes human dignity and equity by 
enabling qualified workers to participate in the workforce.
--Provision of reasonable accommodation to workers who would otherwise 
have been denied it

[[Page 16998]]

reduces stigma, exclusion, and humiliation, and promotes self-respect.
--Interpreting and applying the ADA as amended will further integrate 
and promote contact with individuals with disabilities, yielding third-
party benefits that include both (1) diminishing stereotypes often held 
by individuals without disabilities and (2) promoting design, 
availability, and awareness of accommodations that can have general 
usage benefits and also attitudinal benefits. See Elizabeth Emens, 
Accommodating Integration, 156 U. Pa. L. Rev. 839, 850-59 (2008) 
(explaining a wide range of potential third-party benefits that may 
arise from workplace accommodations).
--Provision of reasonable accommodation to workers who would otherwise 
have been denied it benefits both employers and coworkers in ways that 
may not be subject to monetary quantification, including increasing 
diversity, understanding, and fairness in the workplace.
--Provision of reasonable accommodation to workers who would otherwise 
have been denied it benefits workers in general and society at large by 
creating less discriminatory work environments.

Conclusion

    In the foregoing final regulatory impact analysis, the Commission 
concludes that the approximate costs of reasonable accommodations 
attributable to the ADA Amendments Act and these regulations will range 
greatly and in some instances would exceed $100 million annually, 
depending on assumptions made about the number of individuals in the 
labor force whose coverage has been clarified under the ADAAA and the 
number of such individuals who will receive reasonable accommodation. 
We estimate that the lower bound annual incremental cost of 
accommodations would be approximately $60 million, assuming that 16% of 
12 million individuals whose coverage has been clarified request 
reasonable accommodations over five years at a mean cost of $150. We 
also estimate that the upper bound annual incremental cost of 
accommodations would be approximately $183 million, assuming that 16% 
of 38.4 million individuals whose coverage has been clarified request 
reasonable accommodations over five years at a mean cost of $150. We do 
not believe that administrative costs will add significantly to the 
annual costs resulting from the final regulations, and we believe it is 
not possible to accurately estimate any decrease or increase in legal 
costs.
    The Commission further concludes that the Amendments Act and the 
final regulations will have extensive quantitative and qualitative 
benefits for employers, government entities, and individuals with and 
without disabilities. Regardless of the number of accommodations 
provided to additional applicants or employees as a result of the 
Amendments Act and these regulations, the Commission believes that the 
resulting benefits will be significant and could be in excess of $100 
million annually. Therefore, the rule will have a significant economic 
impact within the meaning of EO 12866. Consistent with Executive Order 
13563, the Commission concludes that the benefits (quantitative and 
qualitative) of the rule justify the costs.

Unfunded Mandates Reform Act

    The Commission notes that by its terms the Unfunded Mandates Reform 
Act does not apply to legislative or regulatory provisions that 
establish or enforce any ``statutory rights that prohibit 
discrimination on the basis of race, color, religion, sex, national 
origin, age, handicap, or disability.'' 2 U.S.C. 658a. Accordingly, it 
does not apply to this rulemaking.

Regulatory Flexibility Act

    Title I of the ADA applies to all employers with 15 or more 
employees, approximately 822,000 of which are small firms (entities 
with 15-500 employees) according to data provided by the Small Business 
Administration Office of Advocacy. See Firm Size Data at http://sba.gov/advo/research/data.html#us. The rule is expected to apply 
uniformly to all such small businesses.
    The Commission certifies under 5 U.S.C. 605(b) that this final rule 
will not have a significant economic impact on a substantial number of 
small entities because it imposes no reporting burdens and because of 
the no-cost and low-cost nature of the types of accommodations that 
most likely will be requested and required by those whose coverage has 
been clarified under the amended ADA's definition of an impairment that 
substantially limits a major life activity.\26\
---------------------------------------------------------------------------

    \26\ This conclusion is consistent with the Commission's finding 
in the final regulatory impact analysis that the costs imposed by 
the Amendments Act and the final regulations may, depending on the 
data used, impose a cost in excess of $100 million annually for 
purposes of EO 12866. Unlike 12866, the Regulatory Flexibility Act 
requires a determination of whether a rule will have a ``significant 
economic impact on a substantial number of small entities,'' which 
is not defined by a specific dollar threshold for purposes of the 
Regulatory Flexibility Act. Rather, the Small Business 
Administration (SBA) advises that agencies tailor the level, scope, 
and complexity of their analysis to the regulated small entity 
community at issue in each rule. The SBA advises that agencies 
should consider both adverse impacts and beneficial impacts under 
the Regulatory Flexibility Act, and can minimize an adverse impact 
by including beneficial impacts in the analysis, consistent with the 
legislative history of the Act that provided examples of significant 
impact to include adverse costs impact that is greater than the 
value of the regulatory good. As set forth in our final regulatory 
impact analysis, the Commission believes the estimated benefits of 
the Amendments Act and these final regulations will be significant.
---------------------------------------------------------------------------

    In the public comments on the preliminary assessment, one employer 
organization submitted alternative estimates of the number of 
individuals who will be affected by the regulations, arguing that a 
final regulatory flexibility analysis is warranted, including 
alternatives to reduce costs. The organization estimated that 576,000 
individuals will newly request reasonable accommodations due to the 
Amendments Act. Another employer organization suggested that the 
preliminary regulatory impact analysis use of the CPS-ASEC might have 
underestimated the number of people that would be considered to have a 
disability under these implementing regulations. For the reasons 
explained in the final regulatory impact analysis, the Commission has 
significantly revised upward its preliminary estimates of the number of 
individuals whose coverage has been clarified under the ADAAA and who 
may request and require accommodations, accounting for alternative 
sources of data cited by commenters and identified through the inter-
agency review process under EO 12866. However, the Commission has also 
set forth in the final regulatory impact analysis its rationale for 
concluding that this incremental increase in reasonable accommodations 
will primarily entail accommodations with no or little costs.
    No comments suggested regulatory alternatives that would be more 
suitable for small businesses. As described above, portions of the 
Commission's ADA regulations were rendered invalid by the changes 
Congress made to the ADA in enacting the Amendments Act, and the 
Commission therefore had no alternative but to conform its regulations 
to the changes Congress made in the statute to the definition of 
disability. Therefore, the rationale for this regulatory action is 
legislative direction. However, even absent this direction, the adopted 
course of action is the most appropriate one, and it is the 
Commission's conclusion that the title I

[[Page 16999]]

regulations are likely to have benefits far exceeding costs.
    In issuing these final regulations, the Commission has considered 
and complied with the provisions of the new EO 13563, in particular 
emphasizing public participation and inter-agency coordination. The 
Commission's regulations explain and implement Congress's amendments to 
the statute, but do not impinge on employer freedom of choice regarding 
matters of compliance. To the extent the final regulations and appendix 
provide clear explication of the new rules of construction for the 
definition of disability and examples of their application, the 
regulations provide information to the public in a form that is clear 
and intelligible, and promote informed decisionmaking.

Projected Reporting, Recordkeeping, and Other Compliance Requirements 
of the Final Rule

    The rule does not include reporting requirements and imposes no new 
recordkeeping requirements. Compliance costs are expected to stem 
primarily from the costs of providing reasonable accommodation for 
individuals with substantially limiting impairments who would request 
and require accommodations. For all the reasons stated in the foregoing 
regulatory impact analysis, it is difficult to quantify how many 
additional requests for reasonable accommodation might result from the 
ADA Amendments Act and the final regulations. We estimate that the 
lower bound annual incremental cost of accommodations would be 
approximately $60 million, assuming that 16% of 12 million individuals 
whose coverage has been clarified request reasonable accommodations 
over five years at a mean cost of $150. We also estimate that the upper 
bound annual incremental cost of accommodations would be approximately 
$183 million, assuming that 16% of 38.4 million individuals whose 
coverage has been clarified request reasonable accommodations over five 
years at a mean cost of $150.
    As explained in the final regulatory impact analysis, these cost 
figures are over-estimations for a multitude of reasons. In particular, 
the figures are based on a mean accommodation cost, whereas almost half 
of all accommodations impose no costs and the types of accommodations 
most likely needed by individuals whose coverage has been clarified as 
a result of the Amendments Act would most likely be low and no-cost 
accommodations.
    We do not believe that administrative costs will add significantly 
to the annual costs resulting from the final regulations. We recognize 
that covered employers may in some cases need to revise internal 
policies and procedures to reflect the broader definition of disability 
under the Amendments Act and train personnel to ensure appropriate 
compliance with the ADAAA and the revised regulations. In addition, 
there will be costs associated with reviewing and analyzing the final 
regulations or publications describing their effects and recommended 
compliance practices.
    Although these types of administrative costs may be particularly 
difficult for small businesses that operate with a smaller margin, the 
Commission will continue to take steps to reduce that burden. The 
Commission is issuing along with the final regulations a user-friendly 
question-and-answer guide intended to educate and promote compliance. 
The Commission also expects to prepare a small business handbook and to 
revise all of its ADA publications, which include dozens of enforcement 
guidances and technical assistance documents, some of which are 
specifically geared toward small business. Moreover, the Commission 
also intends to continue the provision of technical assistance to small 
business in its outreach efforts. In fiscal year 2009 alone, compliance 
with ADA standards was the main topic at 570 no-cost EEOC outreach 
events, reaching more than 35,000 people, many of whom were from small 
businesses.
    Finally, any estimates of costs do not take into account the 
offsetting benefits noted by the research studies submitted by 
commenters and reviewed above in the final regulatory impact analysis. 
The Commission believes the estimated benefits of the Amendments Act 
and these final regulations are significant.
    For the foregoing reasons, the Commission concludes that the 
regulations will not have a significant economic impact on a 
substantial number of small entities.

Relevant Federal Rules That May Duplicate, Overlap or Conflict With the 
Proposed Rule

    The Commission is unaware of any duplicative, overlapping, or 
conflicting federal rules.

Paperwork Reduction Act

    These regulations contain no information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act. See 44 U.S.C. 3501, et seq.

Congressional Review Act

    To the extent this rule is subject to the Congressional Review Act, 
the Commission has complied with its requirements by submitting this 
final rule to Congress prior to publication in the Federal Register.

List of Subjects in 29 CFR Part 1630

    Equal employment opportunity, Individuals with disabilities.

    Dated: March 10, 2011.

    For the commission.
Jacqueline A. Berrien,
Chair.

    Accordingly, for the reasons set forth in the preamble, the EEOC 
amends 29 CFR part 1630 as follows:

PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS 
OF THE AMERICANS WITH DISABILITIES ACT

0
1. Revise the authority citation for 29 CFR part 1630 to read as 
follows:

    Authority:  42 U.S.C. 12116 and 12205a of the Americans with 
Disabilities Act, as amended.


0
2. Revise Sec.  1630.1 to read as follows:


Sec.  1630.1  Purpose, applicability, and construction.

    (a) Purpose. The purpose of this part is to implement title I of 
the Americans with Disabilities Act (ADA), as amended by the ADA 
Amendments Act of 2008 (ADAAA or Amendments Act), 42 U.S.C. 12101, et 
seq., requiring equal employment opportunities for individuals with 
disabilities. The ADA as amended, and these regulations, are intended 
to provide a clear and comprehensive national mandate for the 
elimination of discrimination against individuals with disabilities, 
and to provide clear, strong, consistent, enforceable standards 
addressing discrimination.
    (b) Applicability. This part applies to ``covered entities'' as 
defined at Sec.  1630.2(b).
    (c) Construction--(1) In general. Except as otherwise provided in 
this part, this part does not apply a lesser standard than the 
standards applied under title V of the Rehabilitation Act of 1973 (29 
U.S.C. 790-794a, as amended), or the regulations issued by Federal 
agencies pursuant to that title.
    (2) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures of any Federal law or law of 
any State or political subdivision of any State or

[[Page 17000]]

jurisdiction that provides greater or equal protection for the rights 
of individuals with disabilities than is afforded by this part.
    (3) State workers' compensation laws and disability benefit 
programs. Nothing in this part alters the standards for determining 
eligibility for benefits under State workers' compensation laws or 
under State and Federal disability benefit programs.
    (4) Broad coverage. The primary purpose of the ADAAA is to make it 
easier for people with disabilities to obtain protection under the ADA. 
Consistent with the Amendments Act's purpose of reinstating a broad 
scope of protection under the ADA, the definition of ``disability'' in 
this part shall be construed broadly in favor of expansive coverage to 
the maximum extent permitted by the terms of the ADA. The primary 
object of attention in cases brought under the ADA should be whether 
covered entities have complied with their obligations and whether 
discrimination has occurred, not whether the individual meets the 
definition of disability. The question of whether an individual meets 
the definition of disability under this part should not demand 
extensive analysis.

0
3. Amend Sec.  1630.2 as follows:
0
a. Revise paragraphs (g) through (m).
0
b. In paragraph (o)(1)(ii), remove the words ``a qualified individual 
with a disability'' and add, in their place, ``an individual with a 
disability who is qualified''.
0
c. In paragraph (o)(3), remove the words ``the qualified individual 
with a disability'' and add, in their place, ``the individual with a 
disability''.
0
d. Add paragraph (o)(4).
    The revisions and additions read as follows:


Sec.  1630.2  Definitions.

* * * * *
    (g) Definition of ``disability.''
    (1) In general. Disability means, with respect to an individual--
    (i) A physical or mental impairment that substantially limits one 
or more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
paragraph (l) of this section. This means that the individual has been 
subjected to an action prohibited by the ADA as amended because of an 
actual or perceived impairment that is not both ``transitory and 
minor.''
    (2) An individual may establish coverage under any one or more of 
these three prongs of the definition of disability, i.e., paragraphs 
(g)(1)(i) (the ``actual disability'' prong), (g)(1)(ii) (the ``record 
of'' prong), and/or (g)(1)(iii) (the ``regarded as'' prong) of this 
section.
    (3) Where an individual is not challenging a covered entity's 
failure to make reasonable accommodations and does not require a 
reasonable accommodation, it is generally unnecessary to proceed under 
the ``actual disability'' or ``record of'' prongs, which require a 
showing of an impairment that substantially limits a major life 
activity or a record of such an impairment. In these cases, the 
evaluation of coverage can be made solely under the ``regarded as'' 
prong of the definition of disability, which does not require a showing 
of an impairment that substantially limits a major life activity or a 
record of such an impairment. An individual may choose, however, to 
proceed under the ``actual disability'' and/or ``record of'' prong 
regardless of whether the individual is challenging a covered entity's 
failure to make reasonable accommodations or requires a reasonable 
accommodation.

    Note to paragraph (g):  See Sec.  1630.3 for exceptions to this 
definition.

    (h) Physical or mental impairment means--
    (1) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more body systems, 
such as neurological, musculoskeletal, special sense organs, 
respiratory (including speech organs), cardiovascular, reproductive, 
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, 
and endocrine; or
    (2) Any mental or psychological disorder, such as an intellectual 
disability (formerly termed ``mental retardation''), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    (i) Major life activities--(1) In general. Major life activities 
include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, communicating, interacting with others, and working; and
    (ii) The operation of a major bodily function, including functions 
of the immune system, special sense organs and skin; normal cell 
growth; and digestive, genitourinary, bowel, bladder, neurological, 
brain, respiratory, circulatory, cardiovascular, endocrine, hemic, 
lymphatic, musculoskeletal, and reproductive functions. The operation 
of a major bodily function includes the operation of an individual 
organ within a body system.
    (2) In determining other examples of major life activities, the 
term ``major'' shall not be interpreted strictly to create a demanding 
standard for disability. ADAAA Section 2(b)(4) (Findings and Purposes). 
Whether an activity is a ``major life activity'' is not determined by 
reference to whether it is of ``central importance to daily life.''
    (j) Substantially limits--
    (1) Rules of construction. The following rules of construction 
apply when determining whether an impairment substantially limits an 
individual in a major life activity:
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) An impairment is a disability within the meaning of this 
section if it substantially limits the ability of an individual to 
perform a major life activity as compared to most people in the general 
population. 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. Nonetheless, not 
every impairment will constitute a disability within the meaning of 
this section.
    (iii) The primary object of attention in cases brought under the 
ADA should be whether covered entities have complied with their 
obligations and whether discrimination has occurred, not whether an 
individual's impairment substantially limits a major life activity. 
Accordingly, the threshold issue of whether an impairment 
``substantially limits'' a major life activity should not demand 
extensive analysis.
    (iv) The determination of whether an impairment substantially 
limits a major life activity requires an individualized assessment. 
However, in making this assessment, the term ``substantially limits'' 
shall be interpreted and applied to require a degree of functional 
limitation that is lower than the standard for ``substantially limits'' 
applied prior to the ADAAA.
    (v) The comparison of an individual's performance of a 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 analysis. Nothing in this paragraph is 
intended, however, to prohibit the presentation of scientific, medical, 
or statistical evidence to make such a comparison where appropriate.

[[Page 17001]]

    (vi) The determination of whether an impairment substantially 
limits a major life activity shall be made without regard to the 
ameliorative effects of mitigating measures. However, the ameliorative 
effects of ordinary eyeglasses or contact lenses shall be considered in 
determining whether an impairment substantially limits a major life 
activity.
    (vii) An impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active.
    (viii) An impairment that substantially limits one major life 
activity need not substantially limit other major life activities in 
order to be considered a substantially limiting impairment.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception to ``regarded as'' coverage in Sec.  1630.15(f) does 
not apply to the definition of ``disability'' under paragraphs 
(g)(1)(i) (the ``actual disability'' prong) or (g)(1)(ii) (the ``record 
of'' prong) of this section. The effects of an impairment lasting or 
expected to last fewer than six months can be substantially limiting 
within the meaning of this section.
    (2) Non-applicability to the ``regarded as'' prong. Whether an 
individual's impairment ``substantially limits'' a major life activity 
is not relevant to coverage under paragraph (g)(1)(iii) (the ``regarded 
as'' prong) of this section.
    (3) Predictable assessments--(i) The principles set forth in 
paragraphs (j)(1)(i) through (ix) of this section are intended to 
provide for more generous coverage and application of the ADA's 
prohibition on discrimination through a framework that is predictable, 
consistent, and workable for all individuals and entities with rights 
and responsibilities under the ADA as amended.
    (ii) Applying the principles set forth in paragraphs (j)(1)(i) 
through (ix) of this section, the individualized assessment of some 
types of impairments will, in virtually all cases, result in a 
determination of coverage under paragraphs (g)(1)(i) (the ``actual 
disability'' prong) or (g)(1)(ii) (the ``record of'' prong) of this 
section. Given their inherent nature, these types of impairments will, 
as a factual matter, virtually always be found to impose a substantial 
limitation on a major life activity. Therefore, with respect to these 
types of impairments, the necessary individualized assessment should be 
particularly simple and straightforward.
    (iii) For example, applying the principles set forth in paragraphs 
(j)(1)(i) through (ix) of this section, it should easily be concluded 
that the following types of impairments will, at a minimum, 
substantially limit the major life activities indicated: Deafness 
substantially limits hearing; blindness substantially limits seeing; an 
intellectual disability (formerly termed mental retardation) 
substantially limits brain function; partially or completely missing 
limbs or mobility impairments requiring the use of a wheelchair 
substantially limit musculoskeletal function; autism substantially 
limits brain function; cancer substantially limits normal cell growth; 
cerebral palsy substantially limits brain function; diabetes 
substantially limits endocrine function; epilepsy substantially limits 
neurological function; Human Immunodeficiency Virus (HIV) infection 
substantially limits immune function; multiple sclerosis substantially 
limits neurological function; muscular dystrophy substantially limits 
neurological function; and major depressive disorder, bipolar disorder, 
post-traumatic stress disorder, obsessive compulsive disorder, and 
schizophrenia substantially limit brain function. The types of 
impairments described in this section may substantially limit 
additional major life activities not explicitly listed above.
    (4) Condition, manner, or duration--
    (i) At all times taking into account the principles in paragraphs 
(j)(1)(i) through (ix) of this section, in determining whether an 
individual is substantially limited in a major life activity, it may be 
useful in appropriate cases to consider, as compared to most people in 
the general population, the condition under which the individual 
performs the major life activity; the manner in which the individual 
performs the major life activity; and/or the duration of time it takes 
the individual to perform the major life activity, or for which the 
individual can perform the major life activity.
    (ii) Consideration of facts such as condition, manner, or duration 
may include, among other things, consideration of the difficulty, 
effort, or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; and/or the way an impairment 
affects the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially limits a major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' or ``record of'' prongs of the definition of 
disability, the focus is on how a major life activity is substantially 
limited, and not on what outcomes an individual can achieve. For 
example, someone with a learning disability may achieve a high level of 
academic success, but may nevertheless be substantially limited in the 
major life activity of learning because of the additional time or 
effort he or she must spend to read, write, or learn compared to most 
people in the general population.
    (iv) Given the rules of construction set forth in paragraphs 
(j)(1)(i) through (ix) of this section, it may often be unnecessary to 
conduct an analysis involving most or all of these types of facts. This 
is particularly true with respect to impairments such as those 
described in paragraph (j)(3)(iii) of this section, which by their 
inherent nature should be easily found to impose a substantial 
limitation on a major life activity, and for which the individualized 
assessment should be particularly simple and straightforward.
    (5) Examples of mitigating measures--Mitigating measures include, 
but are not limited to:
    (i) Medication, medical supplies, equipment, or appliances, low-
vision devices (defined as devices that magnify, enhance, or otherwise 
augment a visual image, but not including ordinary eyeglasses or 
contact lenses), prosthetics including limbs and devices, hearing 
aid(s) and cochlear implant(s) or other implantable hearing devices, 
mobility devices, and oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable accommodations or ``auxiliary aids or services'' 
(as defined by 42 U.S.C. 12103(1));
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (6) Ordinary eyeglasses or contact lenses--defined. Ordinary 
eyeglasses or contact lenses are lenses that are intended to fully 
correct visual acuity or to eliminate refractive error.
    (k) Has a record of such an impairment--
    (1) In general. An individual has a record of a disability if the 
individual has a history of, or has been misclassified as having, a 
mental or physical impairment that substantially limits one or more 
major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed

[[Page 17002]]

broadly to the maximum extent permitted by the ADA and should not 
demand extensive analysis. An individual will be considered to have a 
record of a disability if the individual has a history of an impairment 
that substantially limited one or more major life activities when 
compared to most people in the general population, or was misclassified 
as having had such an impairment. In determining whether an impairment 
substantially limited a major life activity, the principles articulated 
in paragraph (j) of this section apply.
    (3) Reasonable accommodation. An individual with a record of a 
substantially limiting impairment may be entitled, absent undue 
hardship, to a reasonable accommodation if needed and related to the 
past disability. For example, an employee with an impairment that 
previously limited, but no longer substantially limits, a major life 
activity may need leave or a schedule change to permit him or her to 
attend follow-up or ``monitoring'' appointments with a health care 
provider.
    (l) ``Is regarded as having such an impairment.'' The following 
principles apply under the ``regarded as'' prong of the definition of 
disability (paragraph (g)(1)(iii) of this section) above:
    (1) Except as provided in Sec.  1630.15(f), an individual is 
``regarded as having such an impairment'' if the individual is 
subjected to a prohibited action because of an actual or perceived 
physical or mental impairment, whether or not that impairment 
substantially limits, or is perceived to substantially limit, a major 
life activity. Prohibited actions include but are not limited to 
refusal to hire, demotion, placement on involuntary leave, termination, 
exclusion for failure to meet a qualification standard, harassment, or 
denial of any other term, condition, or privilege of employment
    (2) Except as provided in Sec.  1630.15(f), an individual is 
``regarded as having such an impairment'' any time a covered entity 
takes a prohibited action against the individual because of an actual 
or perceived impairment, even if the entity asserts, or may or does 
ultimately establish, a defense to such action.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under title I of the ADA only when an individual proves 
that a covered entity discriminated on the basis of disability within 
the meaning of section 102 of the ADA, 42 U.S.C. 12112.
    (m) The term ``qualified,'' with respect to an individual with a 
disability, means that the individual satisfies the requisite skill, 
experience, education and other job-related requirements of the 
employment position such individual holds or desires and, with or 
without reasonable accommodation, can perform the essential functions 
of such position. See Sec.  1630.3 for exceptions to this definition.
    (o) * * *
    (4) A covered entity is required, absent undue hardship, to provide 
a reasonable accommodation to an otherwise qualified individual who 
meets the definition of disability under the ``actual disability'' 
prong (paragraph (g)(1)(i) of this section), or ``record of'' prong 
(paragraph (g)(1)(ii) of this section), but is not required to provide 
a reasonable accommodation to an individual who meets the definition of 
disability solely under the ``regarded as'' prong (paragraph 
(g)(1)(iii) of this section).
* * * * *

0
4. Revise Sec.  1630.4 to read as follows:


Sec.  1630.4  Discrimination prohibited.

    (a) In general--(1) It is unlawful for a covered entity to 
discriminate on the basis of disability against a qualified individual 
in regard to:
    (i) Recruitment, advertising, and job application procedures;
    (ii) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (iii) Rates of pay or any other form of compensation and changes in 
compensation;
    (iv) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (v) Leaves of absence, sick leave, or any other leave;
    (vi) Fringe benefits available by virtue of employment, whether or 
not administered by the covered entity;
    (vii) Selection and financial support for training, including: 
apprenticeships, professional meetings, conferences and other related 
activities, and selection for leaves of absence to pursue training;
    (viii) Activities sponsored by a covered entity, including social 
and recreational programs; and
    (ix) Any other term, condition, or privilege of employment.
    (2) The term discrimination includes, but is not limited to, the 
acts described in Sec. Sec.  1630.4 through 1630.13 of this part.
    (b) Claims of no disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject 
to discrimination because of his lack of disability, including a claim 
that an individual with a disability was granted an accommodation that 
was denied to an individual without a disability.

0
5. Amend Sec.  1630.9 as follows:
0
a. Revise paragraph (c).
0
b. In paragraph (d), in the first sentence, remove the words ``A 
qualified individual with a disability'' and add, in their place, the 
words ``An individual with a disability''.
0
c. In paragraph (d), in the last sentence, remove the words ``a 
qualified individual with a disability'' and add, in their place, the 
word ``qualified''.
0
d. Add paragraph (e).
    The revisions and additions read as follows:


Sec.  1630.9  Not making reasonable accommodation.

* * * * *
    (c) A covered entity shall not be excused from the requirements of 
this part because of any failure to receive technical assistance 
authorized by section 507 of the ADA, including any failure in the 
development or dissemination of any technical assistance manual 
authorized by that Act.
* * * * *
    (e) A covered entity is required, absent undue hardship, to provide 
a reasonable accommodation to an otherwise qualified individual who 
meets the definition of disability under the ``actual disability'' 
prong (Sec.  1630.2(g)(1)(i)), or ``record of'' prong (Sec.  
1630.2(g)(1)(ii)), but is not required to provide a reasonable 
accommodation to an individual who meets the definition of disability 
solely under the ``regarded as'' prong (Sec.  1630.2(g)(1)(iii)).

0
6. Revise Sec.  1630.10 to read as follows:


Sec.  1630.10  Qualification standards, tests, and other selection 
criteria.

    (a) In general. It is unlawful for a covered entity to use 
qualification standards, employment tests or other selection criteria 
that screen out or tend to screen out an individual with a disability 
or a class of individuals with disabilities, on the basis of 
disability, unless the standard, test, or other selection criteria, as 
used by the covered entity, is shown to be job related for the position 
in question and is consistent with business necessity.
    (b) Qualification standards and tests related to uncorrected 
vision. Notwithstanding Sec.  1630.2(j)(1)(vi) of this part, a covered 
entity shall not use qualification standards, employment tests, or 
other selection criteria based on an individual's uncorrected vision 
unless the standard, test, or other

[[Page 17003]]

selection criterion, as used by the covered entity, is shown to be job 
related for the position in question and is consistent with business 
necessity. An individual challenging a covered entity's application of 
a qualification standard, test, or other criterion based on uncorrected 
vision need not be a person with a disability, but must be adversely 
affected by the application of the standard, test, or other criterion.

0
7. Amend Sec.  1630.15 by redesignating paragraph (f) as paragraph (g), 
and adding new paragraph (f) to read as follows:


Sec.  1630.15  Defenses.

* * * * *
    (f) Claims based on transitory and minor impairments under the 
``regarded as'' prong. It may be a defense to a charge of 
discrimination by an individual claiming coverage under the ``regarded 
as'' prong of the definition of disability that the impairment is (in 
the case of an actual impairment) or would be (in the case of a 
perceived impairment) ``transitory and minor.'' To establish this 
defense, a covered entity must demonstrate that the impairment is both 
``transitory'' and ``minor.'' Whether the impairment at issue is or 
would be ``transitory and minor'' is to be determined objectively. A 
covered entity may not defeat ``regarded as'' coverage of an individual 
simply by demonstrating that it subjectively believed the impairment 
was transitory and minor; rather, the covered entity must demonstrate 
that the impairment is (in the case of an actual impairment) or would 
be (in the case of a perceived impairment) both transitory and minor. 
For purposes of this section, ``transitory'' is defined as lasting or 
expected to last six months or less.
* * * * *

0
8. Amend Sec.  1630.16(a) by removing from the last sentence the word 
``because'' and adding, in its place, the words ``on the basis''.
* * * * *

0
9. Amend the Appendix to Part 1630 as follows:
0
A. Remove the ``Background.''
0
B. Revise the ``Introduction.''
0
C. Add ``Note on Certain Terminology Used'' after the ``Introduction.''
0
D. Revise Sec.  1630.1.
0
E. Revise Sections 1630.2(a) through (f).
0
F. Revise Sec.  1630.2(g).
0
G. Revise Sec.  1630.2(h).
0
H. Revise Sec.  1630.2(i).
0
I. Revise Sec.  1630.2(j).
0
J. Add Sec.  1630.2(j)(1), 1630.2(j)(3), 1630.2(j)(4), and 1630.2(j)(5) 
and (6).
0
K. Revise Sec.  1630.2(k).
0
L. Revise Sec.  1630.2(l).
0
M. Amend Sec.  1630.2(m) by revising the heading and first sentence.
0
N. Amend Sec.  1630.2(o) as follows:
0
i. Remove the first paragraph and add, in its place, three new 
paragraphs.
0
ii. Remove the words ``a qualified individual with a disability'' 
wherever they appear and add, in their place, ``an individual with a 
disability''.
0
iii. Remove the words ``the qualified individual with a disability'' 
wherever they appear and add, in their place, ``the individual with a 
disability''.

0
O. Revise Sec.  1630.4.
0
P. Amend Sec.  1630.5 by revising the first paragraph.
0
Q. Amend Sec.  1630.9 as follows:
0
i. Remove the words ``a qualified individual with a disability'' 
wherever they appear and add, in their place, ``the individual with a 
disability''.
0
ii. Remove the words ``the qualified individual with a disability'' 
wherever they appear and add, in their place, ``the individual with a 
disability''.
0
iii. Add new Sec.  1630.9(e) after existing Sec.  1630.9(d).
0
R. Revise Sec.  1630.10.
0
S. Amend Sec.  1630.15 by adding new Sec.  1630.15(f) after existing 
Sec.  1630.15(e).
0
T. Amend Sec.  1630.16(a) by removing, in the last sentence, the words 
``qualified individuals with disabilities'' and adding, in their place, 
``individuals with disabilities who are qualified and''.
0
U. Amend Sec.  1630.16(f) by removing, in the last paragraph, the words 
``a qualified individual with a disability'' and adding, in their 
place, ``an individual with a disability who is qualified''.
    The revisions and additions read as follows:

Appendix to Part 1630--Interpretive Guidance on Title I of the 
Americans With Disabilities Act

Introduction

    The Americans with Disabilities Act (ADA) is a landmark piece of 
civil rights legislation signed into law on July 26, 1990, and 
amended effective January 1, 2009. See 42 U.S.C. 12101 et seq., as 
amended. In passing the ADA, Congress recognized that 
``discrimination against individuals with disabilities continues to 
be a serious and pervasive social problem'' and that the 
``continuing existence of unfair and unnecessary discrimination and 
prejudice denies people with disabilities the opportunity to compete 
on an equal basis and to pursue those opportunities for which our 
free society is justifiably famous, and costs the United States 
billions of dollars in unnecessary expenses resulting from 
dependency and nonproductivity.'' 42 U.S.C. 12101(a)(2), (8). 
Discrimination on the basis of disability persists in critical areas 
such as housing, public accommodations, education, transportation, 
communication, recreation, institutionalization, health services, 
voting, access to public services, and employment. 42 U.S.C. 
12101(a)(3). Accordingly, the ADA prohibits discrimination in a wide 
range of areas, including employment, public services, and public 
accommodations.
    Title I of the ADA prohibits disability-based discrimination in 
employment. The Equal Employment Opportunity Commission (the 
Commission or the EEOC) is responsible for enforcement of title I 
(and parts of title V) of the ADA. Pursuant to the ADA as amended, 
the EEOC is expressly granted the authority and is expected to amend 
these regulations. 42 U.S.C. 12205a. Under title I of the ADA, 
covered entities may not discriminate against qualified individuals 
on the basis of disability in regard to job application procedures, 
the hiring, advancement or discharge of employees, employee 
compensation, job training, or other terms, conditions, and 
privileges of employment. 42 U.S.C. 12112(a). For these purposes, 
``discriminate'' includes (1) limiting, segregating, or classifying 
a job applicant or employee in a way that adversely affects the 
opportunities or status of the applicant or employee; (2) 
participating in a contractual or other arrangement or relationship 
that has the effect of subjecting a covered entity's qualified 
applicants or employees to discrimination; (3) utilizing standards, 
criteria, or other methods of administration that have the effect of 
discrimination on the basis of disability; (4) not making reasonable 
accommodation to the known physical or mental limitations of an 
otherwise qualified individual with a disability, unless the covered 
entity can demonstrate that the accommodation would impose an undue 
hardship on the operation of the business of the covered entity; (5) 
denying employment opportunities to a job applicant or employee who 
is otherwise qualified, if such denial is based on the need to make 
reasonable accommodation; (6) using qualification standards, 
employment tests or other selection criteria that screen out or tend 
to screen out an individual with a disability or a class of 
individuals with disabilities unless the standard, test or other 
selection criterion is shown to be job related for the position in 
question and is consistent with business necessity; and (7) 
subjecting applicants or employees to prohibited medical inquiries 
or examinations. See 42 U.S.C. 12112(b), (d).
    As with other civil rights laws, individuals seeking protection 
under these anti-discrimination provisions of the ADA generally must 
allege and prove that they are members of the ``protected class.'' 
\1\ Under the

[[Page 17004]]

ADA, this typically means they have to show that they meet the 
statutory definition of ``disability.'' 2008 House Judiciary 
Committee Report at 5. However, ``Congress did not intend for the 
threshold question of disability to be used as a means of excluding 
individuals from coverage.'' Id.
---------------------------------------------------------------------------

    \1\ Claims of improper disability-related inquiries or medical 
examinations, improper disclosure of confidential medical 
information, or retaliation may be brought by any applicant or 
employee, not just individuals with disabilities. See, e.g., 
Cossette v. Minnesota Power & Light, 188 F.3d 964, 969-70 (8th Cir. 
1999); Fredenburg v. Contra Costa County Dep't of Health Servs., 172 
F.3d 1176, 1182 (9th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 
591, 594 (10th Cir. 1998). Likewise, a nondisabled applicant or 
employee may challenge an employment action that is based on the 
disability of an individual with whom the applicant or employee is 
known to have a relationship or association. See 42 U.S.C. 
12112(b)(4).
---------------------------------------------------------------------------

    In the original ADA, Congress defined ``disability'' as (1) a 
physical or mental impairment that substantially limits one or more 
major life activities of an individual; (2) a record of such an 
impairment; or (3) being regarded as having such an impairment. 42 
U.S.C. 12202(2). Congress patterned these three parts of the 
definition of disability--the ``actual,'' ``record of,'' and 
``regarded as'' prongs--after the definition of ``handicap'' found 
in the Rehabilitation Act of 1973. 2008 House Judiciary Committee 
Report at 6. By doing so, Congress intended that the relevant case 
law developed under the Rehabilitation Act would be generally 
applicable to the term ``disability'' as used in the ADA. H.R. Rep. 
No. 485 part 3, 101st Cong., 2d Sess. 27 (1990) (1990 House 
Judiciary Report or House Judiciary Report); see also S. Rep. No. 
116, 101st Cong., 1st Sess. 21 (1989) (1989 Senate Report or Senate 
Report); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 50 (1990) 
(1990 House Labor Report or House Labor Report). Congress expected 
that the definition of disability and related terms, such as 
``substantially limits'' and ``major life activity,'' would be 
interpreted under the ADA ``consistently with how courts had applied 
the definition of a handicapped individual under the Rehabilitation 
Act''--i.e., expansively and in favor of broad coverage. ADA 
Amendments Act of 2008 (ADAAA or Amendments Act) at Section 2(a)(1)-
(8) and (b)(1)-(6) (Findings and Purposes); see also Senate 
Statement of the Managers to Accompany S. 3406 (2008 Senate 
Statement of Managers) at 3 (``When Congress passed the ADA in 1990, 
it adopted the functional definition of disability from section 504 
of the Rehabilitation Act of 1973, in part, because after 17 years 
of development through case law the requirements of the definition 
were well understood. Within this framework, with its generous and 
inclusive definition of disability, courts treated the determination 
of disability as a threshold issue but focused primarily on whether 
unlawful discrimination had occurred.''); 2008 House Judiciary 
Committee Report at 6 & n.6 (noting that courts had interpreted this 
Rehabilitation Act definition ``broadly to include persons with a 
wide range of physical and mental impairments'').
    That expectation was not fulfilled. ADAAA Section 2(a)(3). The 
holdings of several Supreme Court cases sharply narrowed the broad 
scope of protection Congress originally intended under the ADA, thus 
eliminating protection for many individuals whom Congress intended 
to protect. Id. For example, in Sutton v. United Air Lines, Inc., 
527 U.S. 471 (1999), the Court ruled that whether an impairment 
substantially limits a major life activity is to be determined with 
reference to the ameliorative effects of mitigating measures. In 
Sutton, the Court also adopted a restrictive reading of the meaning 
of being ``regarded as'' disabled under the ADA's definition of 
disability. Subsequently, in Toyota Motor Mfg., Ky., Inc. v. 
Williams, 534 U.S. 184 (2002), the Court held that the terms 
``substantially'' and ``major'' in the definition of disability 
``need to be interpreted strictly to create a demanding standard for 
qualifying as disabled'' under the ADA, and that to be substantially 
limited in performing a major life activity under the ADA, ``an 
individual must have an impairment that prevents or severely 
restricts the individual from doing activities that are of central 
importance to most people's daily lives.''
    As a result of these Supreme Court decisions, lower courts ruled 
in numerous cases that individuals with a range of substantially 
limiting impairments were not individuals with disabilities, and 
thus not protected by the ADA. See 2008 Senate Statement of Managers 
at 3 (``After the Court's decisions in Sutton that impairments must 
be considered in their mitigated state and in Toyota that there must 
be a demanding standard for qualifying as disabled, lower courts 
more often found that an individual's impairment did not constitute 
a disability. As a result, in too many cases, courts would never 
reach the question whether discrimination had occurred.''). Congress 
concluded that these rulings imposed a greater degree of limitation 
and expressed a higher standard than it had originally intended, and 
coupled with the EEOC's 1991 ADA regulations which had defined the 
term ``substantially limits'' as ``significantly restricted,'' 
unduly precluded many individuals from being covered under the ADA. 
Id.--(``[t]hus, some 18 years later we are faced with a situation in 
which physical or mental impairments that would previously have been 
found to constitute disabilities are not considered disabilities 
under the Supreme Court's narrower standard'' and ``[t]he resulting 
court decisions contribute to a legal environment in which 
individuals must demonstrate an inappropriately high degree of 
functional limitation in order to be protected from discrimination 
under the ADA'').
    Consequently, Congress amended the ADA with the Americans with 
Disabilities Act Amendments Act of 2008. The ADAAA was signed into 
law on September 25, 2008, and became effective on January 1, 2009. 
This legislation is the product of extensive bipartisan efforts, and 
the culmination of collaboration and coordination between 
legislators and stakeholders, including representatives of the 
disability, business, and education communities. See Statement of 
Representatives Hoyer and Sensenbrenner, 154 Cong. Rec. H8294-96 
(daily ed. Sept. 17, 2008) (Hoyer-Sensenbrenner Congressional Record 
Statement); Senate Statement of Managers at 1. The express purposes 
of the ADAAA are, among other things:
    (1) To carry out the ADA's objectives of providing ``a clear and 
comprehensive national mandate for the elimination of 
discrimination'' and ``clear, strong, consistent, enforceable 
standards addressing discrimination'' by reinstating a broad scope 
of protection under the ADA;
    (2) To reject the requirement enunciated in Sutton and its 
companion cases that whether an impairment substantially limits a 
major life activity is to be determined with reference to the 
ameliorative effects of mitigating measures;
    (3) To reject the Supreme Court's reasoning in Sutton with 
regard to coverage under the third prong of the definition of 
disability and to reinstate the reasoning of the Supreme Court in 
School Board of Nassau County v. Arline, 480 U.S. 273 (1987), which 
set forth a broad view of the third prong of the definition of 
handicap under the Rehabilitation Act of 1973;
    (4) To reject the standards enunciated by the Supreme Court in 
Toyota that the terms ``substantially'' and ``major'' in the 
definition of disability under the ADA ``need to be interpreted 
strictly to create a demanding standard for qualifying as 
disabled,'' and that to be substantially limited in performing a 
major life activity under the ADA ``an individual must have an 
impairment that prevents or severely restricts the individual from 
doing activities that are of central importance to most people's 
daily lives'';
    (5) To convey congressional intent that the standard created by 
the Supreme Court in Toyota for ``substantially limits,'' and 
applied by lower courts in numerous decisions, has created an 
inappropriately high level of limitation necessary to obtain 
coverage under the ADA;
    (6) To convey that it is the intent of Congress that the primary 
object of attention in cases brought under the ADA should be whether 
entities covered under the ADA have complied with their obligations, 
and to convey that the question of whether an individual's 
impairment is a disability under the ADA should not demand extensive 
analysis; and
    (7) To express Congress' expectation that the EEOC will revise 
that portion of its current regulations that defines the term 
``substantially limits'' as ``significantly restricted'' to be 
consistent with the ADA as amended.
    ADAAA Section 2(b). The findings and purposes of the ADAAA 
``give[] clear guidance to the courts and * * * [are] intend[ed] to 
be applied appropriately and consistently.'' 2008 Senate Statement 
of Managers at 5.
    The EEOC has amended its regulations to reflect the ADAAA's 
findings and purposes. The Commission believes that it is essential 
also to amend its appendix to the original regulations at the same 
time, and to reissue this interpretive guidance as amended 
concurrently with the issuance of the amended regulations. This will 
help to ensure that individuals with disabilities understand their 
rights, and to facilitate and encourage compliance by covered 
entities under this part.
    Accordingly, this amended appendix addresses the major 
provisions of this part and explains the major concepts related to 
disability-based employment discrimination. This appendix represents 
the Commission's interpretation of the issues addressed within it, 
and the Commission will be guided by this

[[Page 17005]]

appendix when resolving charges of employment discrimination.

Note on Certain Terminology Used

    The ADA, the EEOC's ADA regulations, and this appendix use the 
term ``disabilities'' rather than the term ``handicaps'' which was 
originally used in the Rehabilitation Act of 1973, 29 U.S.C. 701-
796. Substantively, these terms are equivalent. As originally noted 
by the House Committee on the Judiciary, ``[t]he use of the term 
`disabilities' instead of the term `handicaps' reflects the desire 
of the Committee to use the most current terminology. It reflects 
the preference of persons with disabilities to use that term rather 
than `handicapped' as used in previous laws, such as the 
Rehabilitation Act of 1973 * * *.'' 1990 House Judiciary Report at 
26-27; see also 1989 Senate Report at 21; 1990 House Labor Report at 
50-51.
    In addition, consistent with the Amendments Act, revisions have 
been made to the regulations and this Appendix to refer to 
``individual with a disability'' and ``qualified individual'' as 
separate terms, and to change the prohibition on discrimination to 
``on the basis of disability'' instead of prohibiting discrimination 
against a qualified individual ``with a disability because of the 
disability of such individual.'' ``This ensures that the emphasis in 
questions of disability discrimination is properly on the critical 
inquiry of whether a qualified person has been discriminated against 
on the basis of disability, and not unduly focused on the 
preliminary question of whether a particular person is a `person 
with a disability.' '' 2008 Senate Statement of Managers at 11.
    The use of the term ``Americans'' in the title of the ADA, in 
the EEOC's regulations, or in this Appendix as amended is not 
intended to imply that the ADA only applies to United States 
citizens. Rather, the ADA protects all qualified individuals with 
disabilities, regardless of their citizenship status or nationality, 
from discrimination by a covered entity.
    Finally, the terms ``employer'' and ``employer or other covered 
entity'' are used interchangeably throughout this Appendix to refer 
to all covered entities subject to the employment provisions of the 
ADA.

Section 1630.1 Purpose, Applicability and Construction

Section 1630.1(a) Purpose

    The express purposes of the ADA as amended are to provide a 
clear and comprehensive national mandate for the elimination of 
discrimination against individuals with disabilities; to provide 
clear, strong, consistent, enforceable standards addressing 
discrimination against individuals with disabilities; to ensure that 
the Federal Government plays a central role in enforcing the 
standards articulated in the ADA on behalf of individuals with 
disabilities; and to invoke the sweep of congressional authority to 
address the major areas of discrimination faced day-to-day by people 
with disabilities. 42 U.S.C. 12101(b). The EEOC's ADA regulations 
are intended to implement these Congressional purposes in simple and 
straightforward terms.

Section 1630.1(b) Applicability

    The EEOC's ADA regulations as amended apply to all ``covered 
entities'' as defined at Sec.  1630.2(b). The ADA defines ``covered 
entities'' to mean an employer, employment agency, labor 
organization, or joint labor-management committee. 42 U.S.C. 
12111(2). All covered entities are subject to the ADA's rules 
prohibiting discrimination. 42 U.S.C. 12112.

Section 1630.1(c) Construction

    The ADA must be construed as amended. The primary purpose of the 
Amendments Act was to make it easier for people with disabilities to 
obtain protection under the ADA. See Joint Hoyer-Sensenbrenner 
Statement on the Origins of the ADA Restoration Act of 2008, H.R. 
3195 (reviewing provisions of H.R. 3195 as revised following 
negotiations between representatives of the disability and business 
communities) (Joint Hoyer-Sensenbrenner Statement) at 2. 
Accordingly, under the ADA as amended and the EEOC's regulations, 
the definition of ``disability'' ``shall be construed in favor of 
broad coverage of individuals under [the ADA], to the maximum extent 
permitted by the terms of [the ADA].'' 42 U.S.C. 12102(4)(A); see 
also 2008 Senate Statement of Managers at 3 (``The ADA Amendments 
Act * * * reiterates that Congress intends that the scope of the 
[ADA] be broad and inclusive.''). This construction is also intended 
to reinforce the general rule that civil rights statutes must be 
broadly construed to achieve their remedial purpose. Id. at 2; see 
also 2008 House Judiciary Committee Report at 19 (this rule of 
construction ``directs courts to construe the definition of 
`disability' broadly to advance the ADA's remedial purposes'' and 
thus ``brings treatment of the ADA's definition of disability in 
line with treatment of other civil rights laws, which should be 
construed broadly to effectuate their remedial purposes'').
    The ADAAA and the EEOC's regulations also make clear that the 
primary object of attention in cases brought under the ADA should be 
whether entities covered under the ADA have complied with their 
obligations, not--whether the individual meets the definition of 
disability. ADAAA Section 2(b)(5). This means, for example, 
examining whether an employer has discriminated against an employee, 
including whether an employer has fulfilled its obligations with 
respect to providing a ``reasonable accommodation'' to an individual 
with a disability; or whether an employee has met his or her 
responsibilities under the ADA with respect to engaging in the 
reasonable accommodation ``interactive process.'' See also 2008 
Senate Statement of Managers at 4 (``[L]ower court cases have too 
often turned solely on the question of whether the plaintiff is an 
individual with a disability rather than the merits of 
discrimination claims, such as whether adverse decisions were 
impermissibly made by the employer on the basis of disability, 
reasonable accommodations were denied, or qualification standards 
were unlawfully discriminatory.''); 2008 House Judiciary Committee 
Report at 6 (``An individual who does not qualify as disabled * * * 
does not meet th[e] threshold question of coverage in the protected 
class and is therefore not permitted to attempt to prove his or her 
claim of discriminatory treatment.'').
    Further, the question of whether an individual has a disability 
under this part ``should not demand extensive analysis.'' ADAAA 
Section 2(b)(5). See also House Education and Labor Committee Report 
at 9 (``The Committee intends that the establishment of coverage 
under the ADA should not be overly complex nor difficult. * * *'').
    In addition, unless expressly stated otherwise, the standards 
applied in the ADA are intended to provide at least as much 
protection as the standards applied under the Rehabilitation Act of 
1973.
    The ADA does not preempt any Federal law, or any State or local 
law, that grants to individuals with disabilities protection greater 
than or equivalent to that provided by the ADA. This means that the 
existence of a lesser standard of protection to individuals with 
disabilities under the ADA will not provide a defense to failing to 
meet a higher standard under another law. Thus, for example, title I 
of the ADA would not be a defense to failing to prepare and maintain 
an affirmative action program under section 503 of the 
Rehabilitation Act. On the other hand, the existence of a lesser 
standard under another law will not provide a defense to failing to 
meet a higher standard under the ADA. See 1990 House Labor Report at 
135; 1990 House Judiciary Report at 69-70.
    This also means that an individual with a disability could 
choose to pursue claims under a State discrimination or tort law 
that does not confer greater substantive rights, or even confers 
fewer substantive rights, if the potential available remedies would 
be greater than those available under the ADA and this part. The ADA 
does not restrict an individual with a disability from pursuing such 
claims in addition to charges brought under this part. 1990 House 
Judiciary Report at 69-70.
    The ADA does not automatically preempt medical standards or 
safety requirements established by Federal law or regulations. It 
does not preempt State, county, or local laws, ordinances or 
regulations that are consistent with this part and designed to 
protect the public health from individuals who pose a direct threat 
to the health or safety of others that cannot be eliminated or 
reduced by reasonable accommodation. However, the ADA does preempt 
inconsistent requirements established by State or local law for 
safety or security sensitive positions. See 1989 Senate Report at 
27; 1990 House Labor Report at 57.
    An employer allegedly in violation of this part cannot 
successfully defend its actions by relying on the obligation to 
comply with the requirements of any State or local law that imposes 
prohibitions or limitations on the eligibility of individuals with 
disabilities who are qualified to practice any occupation or 
profession. For example, suppose a municipality has an ordinance 
that prohibits individuals with tuberculosis from teaching school 
children. If an individual with dormant tuberculosis challenges a 
private school's refusal to hire him or her on the basis of the 
tuberculosis, the private school

[[Page 17006]]

would not be able to rely on the city ordinance as a defense under 
the ADA.
    Paragraph (c)(3) is consistent with language added to section 
501 of the ADA by the ADA Amendments Act. It makes clear that 
nothing in this part is intended to alter the determination of 
eligibility for benefits under state workers' compensation laws or 
Federal and State disability benefit programs. State workers' 
compensation laws and Federal disability benefit programs, such as 
programs that provide payments to veterans with service-connected 
disabilities and the Social Security Disability Insurance program, 
have fundamentally different purposes than title I of the ADA.

Section 1630.2 Definitions

Sections 1630.2(a)-(f) Commission, Covered Entity, etc.

    The definitions section of part 1630 includes several terms that 
are identical, or almost identical, to the terms found in title VII 
of the Civil Rights Act of 1964. Among these terms are 
``Commission,'' ``Person,'' ``State,'' and ``Employer.'' These terms 
are to be given the same meaning under the ADA that they are given 
under title VII. In general, the term ``employee'' has the same 
meaning that it is given under title VII. However, the ADA's 
definition of ``employee'' does not contain an exception, as does 
title VII, for elected officials and their personal staffs. It 
should further be noted that all State and local governments are 
covered by title II of the ADA whether or not they are also covered 
by this part. Title II, which is enforced by the Department of 
Justice, became effective on January 26, 1992. See 28 CFR part 35.
    The term ``covered entity'' is not found in title VII. However, 
the title VII definitions of the entities included in the term 
``covered entity'' (e.g., employer, employment agency, labor 
organization, etc.) are applicable to the ADA.

Section 1630.2(g) Disability

    In addition to the term ``covered entity,'' there are several 
other terms that are unique to the ADA as amended. The first of 
these is the term ``disability.'' ``This definition is of critical 
importance because as a threshold issue it determines whether an 
individual is covered by the ADA.'' 2008 Senate Statement of 
Managers at 6.
    In the original ADA, ``Congress sought to protect anyone who 
experiences discrimination because of a current, past, or perceived 
disability.'' 2008 Senate Statement of Managers at 6. Accordingly, 
the definition of the term ``disability'' is divided into three 
prongs: An individual is considered to have a ``disability'' if that 
individual (1) has a physical or mental impairment that 
substantially limits one or more of that person's major life 
activities (the ``actual disability'' prong); (2) has a record of 
such an impairment (the ``record of'' prong); or (3) is regarded by 
the covered entity as an individual with a disability as defined in 
Sec.  1630.2(l) (the ``regarded as'' prong). The ADAAA retained the 
basic structure and terms of the original definition of disability. 
However, the Amendments Act altered the interpretation and 
application of this critical statutory term in fundamental ways. See 
2008 Senate Statement of Managers at 1 (``The bill maintains the 
ADA's inherently functional definition of disability'' but 
``clarifies and expands the definition's meaning and 
application.'').
    As noted above, the primary purpose of the ADAAA is to make it 
easier for people with disabilities to obtain protection under the 
ADA. See Joint Hoyer-Sensenbrenner Statement at 2. Accordingly, the 
ADAAA provides rules of construction regarding the definition of 
disability. Consistent with the congressional intent to reinstate a 
broad scope of protection under the ADA, the ADAAA's rules of 
construction require that the definition of ``disability'' ``shall 
be construed in favor of broad coverage of individuals under [the 
ADA], to the maximum extent permitted by the terms of [the ADA].'' 
42 U.S.C. 12102(4)(A). The legislative history of the ADAAA is 
replete with references emphasizing this principle. See Joint Hoyer-
Sensenbrenner Statement at 2 (``[The bill] establishes that the 
definition of disability must be interpreted broadly to achieve the 
remedial purposes of the ADA''); 2008 Senate Statement of Managers 
at 1 (the ADAAA's purpose is to ``enhance the protections of the 
[ADA]'' by ``expanding the definition, and by rejecting several 
opinions of the United States Supreme Court that have had the effect 
of restricting the meaning and application of the definition of 
disability''); id. (stressing the importance of removing barriers 
``to construing and applying the definition of disability more 
generously''); id. at 4 (``The managers have introduced the [ADAAA] 
to restore the proper balance and application of the ADA by 
clarifying and broadening the definition of disability, and to 
increase eligibility for the protections of the ADA.''); id. (``It 
is our expectation that because the bill makes the definition of 
disability more generous, some people who were not covered before 
will now be covered.''); id. (warning that ``the definition of 
disability should not be unduly used as a tool for excluding 
individuals from the ADA's protections''); id. (this principle 
``sends a clear signal of our intent that the courts must interpret 
the definition of disability broadly rather than stringently''); 
2008 House Judiciary Committee Report at 5 (``The purpose of the 
bill is to restore protection for the broad range of individuals 
with disabilities as originally envisioned by Congress by responding 
to the Supreme Court's narrow interpretation of the definition of 
disability.'').
    Further, as the purposes section of the ADAAA explicitly 
cautions, the ``primary object of attention'' in cases brought under 
the ADA should be whether entities covered under the ADA have 
complied with their obligations. As noted above, this means, for 
example, examining whether an employer has discriminated against an 
employee, including whether an employer has fulfilled its 
obligations with respect to providing a ``reasonable accommodation'' 
to an individual with a disability; or whether an employee has met 
his or her responsibilities under the ADA with respect to engaging 
in the reasonable accommodation ``interactive process.'' ADAAA 
Section 2(b)(5); see also 2008 Senate Statement of Managers at 4 
(``[L]ower court cases have too often turned solely on the question 
of whether the plaintiff is an individual with a disability rather 
than the merits of discrimination claims, such as whether adverse 
decisions were impermissibly made by the employer on the basis of 
disability, reasonable accommodations were denied, or qualification 
standards were unlawfully discriminatory.''); 2008 House Judiciary 
Committee Report (criticizing pre-ADAAA court decisions which 
``prevented individuals that Congress unquestionably intended to 
cover from ever getting a chance to prove their case''). 
Accordingly, the threshold coverage question of whether an 
individual's impairment is a disability under the ADA ``should not 
demand extensive analysis.'' ADAAA Section 2(b)(5).
    Section 1630.2(g)(2) provides that an individual may establish 
coverage under any one or more (or all three) of the prongs in the 
definition of disability. However, to be an individual with a 
disability, an individual is only required to satisfy one prong.
    As Sec.  1630.2(g)(3) indicates, in many cases it may be 
unnecessary for an individual to resort to coverage under the 
``actual disability'' or ``record of'' prongs. Where the need for a 
reasonable accommodation is not at issue--for example, where there 
is no question that the individual is ``qualified'' without a 
reasonable accommodation and is not seeking or has not sought a 
reasonable accommodation--it would not be necessary to determine 
whether the individual is substantially limited in a major life 
activity (under the actual disability prong) or has a record of a 
substantially limiting impairment (under the record of prong). Such 
claims could be evaluated solely under the ``regarded as'' prong of 
the definition. In fact, 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 
* * *--should be bringing a claim under the third prong of the 
definition which will require no showing with regard to the severity 
of his or her impairment.'' Joint Hoyer-Sensenbrenner Statement at 
4. An individual may choose, however, to proceed under the ``actual 
disability'' and/or ``record of'' prong regardless of whether the 
individual is challenging a covered entity's failure to make 
reasonable accommodation or requires a reasonable accommodation.
    To fully understand the meaning of the term ``disability,'' it 
is also necessary to understand what is meant by the terms 
``physical or mental impairment,'' ``major life activity,'' 
``substantially limits,'' ``record of,'' and ``regarded as.'' Each 
of these terms is discussed below.

Section 1630.2(h) Physical or Mental Impairment

    Neither the original ADA nor the ADAAA provides a definition for 
the terms ``physical or mental impairment.'' However, the 
legislative history of the Amendments Act notes that Congress 
``expect[s] that the current regulatory definition of these terms,

[[Page 17007]]

as promulgated by agencies such as the U.S. Equal Employment 
Opportunity Commission (EEOC), the Department of Justice (DOJ) and 
the Department of Education Office of Civil Rights (DOE OCR) will 
not change.'' 2008 Senate Statement of Managers at 6. The definition 
of ``physical or mental impairment'' in the EEOC's regulations 
remains based on the definition of the term ``physical or mental 
impairment'' found in the regulations implementing section 504 of 
the Rehabilitation Act at 34 CFR part 104. However, the definition 
in EEOC's regulations adds additional body systems to those provided 
in the section 504 regulations and makes clear that the list is non-
exhaustive.
    It is important to distinguish between conditions that are 
impairments and physical, psychological, environmental, cultural, 
and economic characteristics that are not impairments. The 
definition of the term ``impairment'' does not include physical 
characteristics such as eye color, hair color, left-handedness, or 
height, weight, or muscle tone that are within ``normal'' range and 
are not the result of a physiological disorder. The definition, 
likewise, does not include characteristic predisposition to illness 
or disease. Other conditions, such as pregnancy, that are not the 
result of a physiological disorder are also not impairments. 
However, a pregnancy-related impairment that substantially limits a 
major life activity is a disability under the first prong of the 
definition. Alternatively, a pregnancy-related impairment may 
constitute a ``record of'' a substantially limiting impairment,'' or 
may be covered under the ``regarded as'' prong if it is the basis 
for a prohibited employment action and is not ``transitory and 
minor.''
    The definition of an impairment also does not include common 
personality traits such as poor judgment or a quick temper where 
these are not symptoms of a mental or psychological disorder. 
Environmental, cultural, or economic disadvantages such as poverty, 
lack of education, or a prison record are not impairments. Advanced 
age, in and of itself, is also not an impairment. However, various 
medical conditions commonly associated with age, such as hearing 
loss, osteoporosis, or arthritis would constitute impairments within 
the meaning of this part. See 1989 Senate Report at 22-23; 1990 
House Labor Report at 51-52; 1990 House Judiciary Report at 28-29.

Section 1630.2(i) Major Life Activities

    The ADAAA provided significant new guidance and clarification on 
the subject of ``major life activities.'' As the legislative history 
of the Amendments Act explains, Congress anticipated that protection 
under the ADA would now extend to a wider range of cases, in part as 
a result of the expansion of the category of major life activities. 
See 2008 Senate Statement of Managers at 8 n.17.
    For purposes of clarity, the Amendments Act provides an 
illustrative list of major life activities, including caring for 
oneself, performing manual tasks, seeing, hearing, eating, sleeping, 
walking, standing, lifting, bending, speaking, breathing, learning, 
reading, concentrating, thinking, communicating, and working. The 
ADA Amendments expressly made this statutory list of examples of 
major life activities non-exhaustive, and the regulations include 
sitting, reaching, and interacting with others as additional 
examples. Many of these major life activities listed in the ADA 
Amendments Act and the regulations already had been included in the 
EEOC's 1991 now-superseded regulations implementing title I of the 
ADA and in sub-regulatory documents, and already were recognized by 
the courts.
    The ADA as amended also explicitly defines ``major life 
activities'' to include the operation of ``major bodily functions.'' 
This was an important addition to the statute. This clarification 
was needed to ensure that the impact of an impairment on the 
operation of a major bodily function would not be overlooked or 
wrongly dismissed as falling outside the definition of ``major life 
activities'' under the ADA. 2008 House Judiciary Committee Report at 
16; see also 2008 Senate Statement of Managers at 8 (``for the first 
time [in the ADAAA], the category of `major life activities' is 
defined to include the operation of major bodily functions, thus 
better addressing chronic impairments that can be substantially 
limiting'').
    The regulations include all of those major bodily functions 
identified in the ADA Amendments Act's non-exhaustive list of 
examples and add a number of others that are consistent with the 
body systems listed in the regulations' definition of ``impairment'' 
(at Sec.  1630.2(h)) and with the U.S. Department of Labor's 
nondiscrimination and equal employment opportunity regulations 
implementing section 188 of the Workforce Investment Act of 1998, 29 
U.S.C. 2801, et seq. Thus, special sense organs, skin, 
genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal 
functions are major bodily functions not included in the statutory 
list of examples but included in Sec.  1630.2(i)(1)(ii). The 
Commission has added these examples to further illustrate the non-
exhaustive list of major life activities, including major bodily 
functions, and to emphasize that the concept of major life 
activities is to be interpreted broadly consistent with the 
Amendments Act. The regulations also provide that the operation of a 
major bodily function may include the operation of an individual 
organ within a body system. This would include, for example, the 
operation of the kidney, liver, pancreas, or other organs.
    The link between particular impairments and various major bodily 
functions should not be difficult to identify. Because impairments, 
by definition, affect the functioning of body systems, they will 
generally affect major bodily functions. For example, cancer affects 
an individual's normal cell growth; diabetes affects the operation 
of the pancreas and also the function of the endocrine system; and 
Human Immunodeficiency Virus (HIV) infection affects the immune 
system. Likewise, sickle cell disease affects the functions of the 
hemic system, lymphedema affects lymphatic functions, and rheumatoid 
arthritis affects musculoskeletal functions.
    In the legislative history of the ADAAA, Congress expressed its 
expectation that the statutory expansion of ``major life 
activities'' to include major bodily functions (along with other 
statutory changes) would lead to more expansive coverage. See 2008 
Senate Statement of Managers at 8 n.17 (indicating that these 
changes will make it easier for individuals to show that they are 
eligible for the ADA's protections under the first prong of the 
definition of disability). The House Education and Labor Committee 
explained that the inclusion of major bodily functions would 
``affect cases such as U.S. v. Happy Time Day Care Ctr. in which the 
courts struggled to analyze whether the impact of HIV infection 
substantially limits various major life activities of a five-year-
old child, and recognizing, among other things, that `there is 
something inherently illogical about inquiring whether' a five-year-
old's ability to procreate is substantially limited by his HIV 
infection; Furnish v. SVI Sys., Inc, in which the court found that 
an individual with cirrhosis of the liver caused by Hepatitis B is 
not disabled because liver function--unlike eating, working, or 
reproducing--`is not integral to one's daily existence;' and 
Pimental v. Dartmouth-Hitchcock Clinic, in which the court concluded 
that the plaintiff's stage three breast cancer did not substantially 
limit her ability to care for herself, sleep, or concentrate. The 
Committee expects that the plaintiffs in each of these cases could 
establish a [substantial limitation] on major bodily functions that 
would qualify them for protection under the ADA.'' 2008 House 
Education and Labor Committee Report at 12.
    The examples of major life activities (including major bodily 
functions) in the ADAAA and the EEOC's regulations are illustrative 
and non-exhaustive, and the absence of a particular life activity or 
bodily function from the examples does not create a negative 
implication as to whether an omitted activity or function 
constitutes a major life activity under the statute. See 2008 Senate 
Statement of Managers at 8; see also 2008 House Committee on Educ. 
and Labor Report at 11; 2008 House Judiciary Committee Report at 17.
    The Commission anticipates that courts will recognize other 
major life activities, consistent with the ADA Amendments Act's 
mandate to construe the definition of disability broadly. As a 
result of the ADA Amendments Act's rejection of the holding in 
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), 
whether an activity is a ``major life activity'' is not determined 
by reference to whether it is of ``central importance to daily 
life.'' See Toyota, 534 U.S. at 197 (defining ``major life 
activities'' as activities that are of ``central importance to most 
people's daily lives''). Indeed, this holding was at odds with the 
earlier Supreme Court decision of Bragdon v. Abbott, 524 U.S. 624 
(1998), which held that a major life activity (in that case, 
reproduction) does not have to have a ``public, economic or daily 
aspect.'' Id. at 639.
    Accordingly, the regulations provide that in determining other 
examples of major life activities, the term ``major'' shall not be 
interpreted strictly to create a demanding standard for disability. 
Cf. 2008 Senate Statement of Managers at 7 (indicating that a person 
is considered an individual with a disability for purposes of the 
first prong when one or more of the individual's

[[Page 17008]]

``important life activities'' are restricted) (citing 1989 Senate 
Report at 23). The regulations also reject the notion that to be 
substantially limited in performing a major life activity, an 
individual must have an impairment that prevents or severely 
restricts the individual from doing ``activities that are of central 
importance to most people's daily lives.'' Id.; see also 2008 Senate 
Statement of Managers at 5 n.12.
    Thus, for example, lifting is a major life activity regardless 
of whether an individual who claims to be substantially limited in 
lifting actually performs activities of central importance to daily 
life that require lifting. Similarly, the Commission anticipates 
that the major life activity of performing manual tasks (which was 
at issue in Toyota) could have many different manifestations, such 
as performing tasks involving fine motor coordination, or performing 
tasks involving grasping, hand strength, or pressure. Such tasks 
need not constitute activities of central importance to most 
people's daily lives, nor must an individual show that he or she is 
substantially limited in performing all manual tasks.

Section 1630.2(j) Substantially Limits

    In any case involving coverage solely under the ``regarded as'' 
prong of the definition of ``disability'' (e.g., cases where 
reasonable accommodation is not at issue), it is not necessary to 
determine whether an individual is ``substantially limited'' in any 
major life activity. See 2008 Senate Statement of Managers at 10; 
id. at 13 (``The functional limitation imposed by an impairment is 
irrelevant to the third `regarded as' prong.''). Indeed, Congress 
anticipated that the first and second prongs of the definition of 
disability would ``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 * * 
*--should be bringing a claim under the third prong of the 
definition which will require no showing with regard to the severity 
of his or her impairment.'' Joint Hoyer-Sensenbrenner Statement at 
4. Of course, an individual may choose, however, to proceed under 
the ``actual disability'' and/or ``record of'' prong regardless of 
whether the individual is challenging a covered entity's failure to 
make reasonable accommodations or requires a reasonable 
accommodation. The concept of ``substantially limits'' is only 
relevant in cases involving coverage under the ``actual disability'' 
or ``record of'' prong of the definition of disability. Thus, the 
information below pertains to these cases only.

Section 1630.2(j)(1) Rules of Construction

    It is clear in the text and legislative history of the ADAAA 
that Congress concluded the courts had incorrectly construed 
``substantially limits,'' and disapproved of the EEOC's now-
superseded 1991 regulation defining the term to mean ``significantly 
restricts.'' See 2008 Senate Statement of Managers at 6 (``We do not 
believe that the courts have correctly instituted the level of 
coverage we intended to establish with the term `substantially 
limits' in the ADA'' and ``we believe that the level of limitation, 
and the intensity of focus, applied by the Supreme Court in Toyota 
goes beyond what we believe is the appropriate standard to create 
coverage under this law.''). Congress extensively deliberated over 
whether a new term other than ``substantially limits'' should be 
adopted to denote the appropriate functional limitation necessary 
under the first and second prongs of the definition of disability. 
See 2008 Senate Statement of Managers at 6-7. Ultimately, Congress 
affirmatively opted to retain this term in the Amendments Act, 
rather than replace it. It concluded that ``adopting a new, 
undefined term that is subject to widely disparate meanings is not 
the best way to achieve the goal of ensuring consistent and 
appropriately broad coverage under this Act.'' Id. Instead, Congress 
determined ``a better way * * * to express [its] disapproval of 
Sutton and Toyota (along with the current EEOC regulation) is to 
retain the words `substantially limits,' but clarify that it is not 
meant to be a demanding standard.'' Id. at 7. To achieve that goal, 
Congress set forth detailed findings and purposes and ``rules of 
construction'' to govern the interpretation and application of this 
concept going forward. See ADAAA Sections 2-4; 42 U.S.C. 12102(4).
    The Commission similarly considered whether to provide a new 
definition of ``substantially limits'' in the regulation. Following 
Congress's lead, however, the Commission ultimately concluded that a 
new definition would inexorably lead to greater focus and intensity 
of attention on the threshold issue of coverage than intended by 
Congress. Therefore, the regulations simply provide rules of 
construction that must be applied in determining whether an 
impairment substantially limits (or substantially limited) a major 
life activity. These are each discussed in greater detail below.

Section 1630.2(j)(1)(i): Broad Construction; not a Demanding Standard

    Section 1630.2(j)(1)(i) states: ``The term `substantially 
limits' shall be construed broadly in favor of expansive coverage, 
to the maximum extent permitted by the terms of the ADA. 
`Substantially limits' is not meant to be a demanding standard.''
    Congress stated in the ADA Amendments Act that the definition of 
disability ``shall be construed in favor of broad coverage,'' and 
that ``the term `substantially limits' shall be interpreted 
consistently with the findings and purposes of the ADA Amendments 
Act of 2008.'' 42 U.S.C. 12101(4)(A)-(B), as amended. ``This is a 
textual provision that will legally guide the agencies and courts in 
properly interpreting the term `substantially limits.' '' Hoyer-
Sensenbrenner Congressional Record Statement at H8295. As Congress 
noted in the legislative history of the ADAAA, ``[t]o be clear, the 
purposes section conveys our intent to clarify not only that 
`substantially limits' should be measured by a lower standard than 
that used in Toyota, but also that the definition of disability 
should not be unduly used as a tool for excluding individuals from 
the ADA's protections.'' 2008 Senate Statement of Managers at 5 
(also stating that ``[t]his rule of construction, together with the 
rule of construction providing that the definition of disability 
shall be construed in favor of broad coverage of individuals sends a 
clear signal of our intent that the courts must interpret the 
definition of disability broadly rather than stringently''). Put 
most succinctly, ``substantially limits'' ``is not meant to be a 
demanding standard.'' 2008 Senate Statement of Managers at 7.

Section 1630.2(j)(1)(ii): Significant or Severe Restriction Not 
Required; Nonetheless, Not Every Impairment Is Substantially Limiting

    Section 1630.2(j)(1)(ii) states: ``An impairment is a disability 
within the meaning of this section if it substantially limits the 
ability of an individual to perform a major life activity as 
compared to most people in the general population. 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. Nonetheless, not every impairment 
will constitute a `disability' within the meaning of this section.''
    In keeping with the instruction that the term ``substantially 
limits'' is not meant to be a demanding standard, the regulations 
provide that 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. However, to be 
substantially limited in performing a major life activity an 
individual need not have an impairment that prevents or 
significantly or severely restricts the individual from performing a 
major life activity. See 2008 Senate Statement of Managers at 2, 6-8 
& n.14; 2008 House Committee on Educ. and Labor Report at 9-10 
(``While the limitation imposed by an impairment must be important, 
it need not rise to the level of severely restricting or 
significantly restricting the ability to perform a major life 
activity to qualify as a disability.''); 2008 House Judiciary 
Committee Report at 16 (similarly requiring an ``important'' 
limitation). The level of limitation required is ``substantial'' as 
compared to most people in the general population, which does not 
require a significant or severe restriction. Multiple impairments 
that combine to substantially limit one or more of an individual's 
major life activities also constitute a disability. Nonetheless, not 
every impairment will constitute a ``disability'' within the meaning 
of this section. See 2008 Senate Statement of Managers at 4 (``We 
reaffirm that not every individual with a physical or mental 
impairment is covered by the first prong of the definition of 
disability in the ADA.'')

Section 1630.2(j)(1)(iii): Substantial Limitation Should Not Be Primary 
Object of Attention; Extensive Analysis Not Needed

    Section 1630.2(j)(1)(iii) states: ``The primary object of 
attention in cases brought under the ADA should be whether covered 
entities have complied with their obligations, not whether an 
individual's impairment substantially limits a major life activity. 
Accordingly, the threshold issue of whether an impairment 
`substantially limits' a major life activity should not demand 
extensive analysis.''

[[Page 17009]]

    Congress retained the term ``substantially limits'' in part 
because it was concerned that adoption of a new phrase--and the 
resulting need for further judicial scrutiny and construction--would 
not ``help move the focus from the threshold issue of disability to 
the primary issue of discrimination.'' 2008 Senate Statement of 
Managers at 7.
    This was the primary problem Congress sought to solve in 
enacting the ADAAA. It recognized that ``clearing the initial 
[disability] threshold is critical, as individuals who are excluded 
from the definition `never have the opportunity to have their 
condition evaluated in light of medical evidence and a determination 
made as to whether they [are] `otherwise quali fied.' ' '' 2008 
House Judiciary Committee Report at 7; see also id. (expressing 
concern that ``[a]n individual who does not qualify as disabled does 
not meet th[e] threshold question of coverage in the protected class 
and is therefore not permitted to attempt to prove his or her claim 
of discriminatory treatment''); 2008 Senate Statement of Managers at 
4 (criticizing pre-ADAAA lower court cases that ``too often turned 
solely on the question of whether the plaintiff is an individual 
with a disability rather than the merits of discrimination claims, 
such as whether adverse decisions were impermissibly made by the 
employer on the basis of disability, reasonable accommodations were 
denied, or qualification standards were unlawfully 
discriminatory'').
    Accordingly, the Amendments Act and the amended regulations make 
plain that the emphasis in ADA cases now should be squarely on the 
merits and not on the initial coverage question. The revised 
regulations therefore provide that 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 and deletes the language to which Congress objected. The 
Commission believes that this provides a useful framework in which 
to analyze whether an impairment satisfies the definition of 
disability. Further, this framework better reflects Congress's 
expressed intent in the ADA Amendments Act that the definition of 
the term ``disability'' shall be construed broadly, and is 
consistent with statements in the Amendments Act's legislative 
history. See 2008 Senate Statement of Managers at 7 (stating that 
``adopting a new, undefined term'' and the ``resulting need for 
further judicial scrutiny and construction will not help move the 
focus from the threshold issue of disability to the primary issue of 
discrimination,'' and finding that `` `substantially limits' as 
construed consistently with the findings and purposes of this 
legislation establishes an appropriate functionality test of 
determining whether an individual has a disability'' and that 
``using the correct standard--one that is lower than the strict or 
demanding standard created by the Supreme Court in Toyota--will make 
the disability determination an appropriate threshold issue but not 
an onerous burden for those seeking accommodations or 
modifications'').
    Consequently, this rule of construction makes clear that the 
question of whether an impairment substantially limits a major life 
activity should not demand extensive analysis. As the legislative 
history explains, ``[w]e expect that courts interpreting [the ADA] 
will not demand such an extensive analysis over whether a person's 
physical or mental impairment constitutes a disability.'' Hoyer-
Sensenbrenner Congressional Record Statement at H8295; see id. 
(``Our goal throughout this process has been to simplify that 
analysis.'')

Section 1630.2(j)(1)(iv): Individualized Assessment Required, But With 
Lower Standard Than Previously Applied

    Section 1630.2(j)(1)(iv) states: ``The determination of whether 
an impairment substantially limits a major life activity requires an 
individualized assessment. However, in making this assessment, the 
term `substantially limits' shall be interpreted and applied to 
require a degree of functional limitation that is lower than the 
standard for `substantially limits' applied prior to the ADAAA.''
    By retaining the essential elements of the definition of 
disability including the key term ``substantially limits,'' Congress 
reaffirmed that not every individual with a physical or mental 
impairment is covered by the first prong of the definition of 
disability in the ADA. See 2008 Senate Statement of Managers at 4. 
To be covered under the first prong of the definition, an individual 
must establish that an impairment substantially limits a major life 
activity. That has not changed--nor will the necessity of making 
this determination on an individual basis. Id. However, what the 
ADAAA changed is the standard required for making this 
determination. Id. at 4-5.
    The Amendments Act and the EEOC's regulations explicitly reject 
the standard enunciated by the Supreme Court in Toyota Motor Mfg., 
Ky., Inc. v. Williams, 534 U.S. 184 (2002), and applied in the lower 
courts in numerous cases. See ADAAA Section 2(b)(4). That previous 
standard created ``an inappropriately high level of limitation 
necessary to obtain coverage under the ADA.'' Id. at Section 
2(b)(5). The Amendments Act and the EEOC's regulations reject the 
notion that ``substantially limits'' should be interpreted strictly 
to create a demanding standard for qualifying as disabled. Id. at 
Section 2(b)(4). Instead, the ADAAA and these regulations establish 
a degree of functional limitation required for an impairment to 
constitute a disability that is consistent with what Congress 
originally intended. 2008 Senate Statement of Managers at 7. This 
will make the disability determination an appropriate threshold 
issue but not an onerous burden for those seeking to prove 
discrimination under the ADA. Id.

Section 1630.2(j)(1)(v): Scientific, Medical, or Statistical Analysis 
Not Required, But Permissible When Appropriate

    Section 1630.2(j)(1)(v) states: ``The comparison of an 
individual's performance of a 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 analysis. Nothing in this paragraph is intended, 
however, to prohibit the presentation of scientific, medical, or 
statistical evidence to make such a comparison where appropriate.''
    The term ``average person in the general population,'' as the 
basis of comparison for determining whether an individual's 
impairment substantially limits a major life activity, has been 
changed to ``most people in the general population.'' This revision 
is not a substantive change in the concept, but rather is intended 
to conform the language to the simpler and more straightforward 
terminology used in the legislative history to the Amendments Act. 
The comparison between the individual and ``most people'' need not 
be exacting, and usually will not require scientific, medical, or 
statistical analysis. Nothing in this subparagraph is intended, 
however, to prohibit the presentation of scientific, medical, or 
statistical evidence to make such a comparison where appropriate.
    The comparison to most people in the general population 
continues to mean a comparison to other people in the general 
population, not a comparison to those similarly situated. For 
example, the ability of an individual with an amputated limb to 
perform a major life activity is compared to other people in the 
general population, not to other amputees. This does not mean that 
disability cannot be shown where an impairment, such as a learning 
disability, is clinically diagnosed based in part on a disparity 
between an individual's aptitude and that individual's actual versus 
expected achievement, taking into account the person's chronological 
age, measured intelligence, and age-appropriate education. 
Individuals diagnosed with dyslexia or other learning disabilities 
will typically be substantially limited in performing activities 
such as learning, reading, and thinking when compared to most people 
in the general population, particularly when the ameliorative 
effects of mitigating measures, including therapies, learned 
behavioral or adaptive neurological modifications, assistive devices 
(e.g., audio recordings, screen reading devices, voice activated 
software), studying longer, or receiving more time to take a test, 
are disregarded as required under the ADA Amendments Act.

Section 1630.2(j)(1)(vi): Mitigating Measures

    Section 1630.2(j)(1)(vi) states: ``The determination of whether 
an impairment substantially limits a major life activity shall be 
made without regard to the ameliorative effects of mitigating 
measures. However, the ameliorative effects of ordinary eyeglasses 
or contact lenses shall be considered in determining whether an 
impairment substantially limits a major life activity.''
    The ameliorative effects of mitigating measures shall not be 
considered in determining whether an impairment substantially limits 
a major life activity. Thus, ``[w]ith the exception of ordinary 
eyeglasses and contact lenses, impairments must be examined in their 
unmitigated state.'' See 2008 Senate Statement of Managers at 5.
    This provision in the ADAAA and the EEOC's regulations ``is 
intended to eliminate the catch-22 that exist[ed] * * * where 
individuals who are subjected to discrimination on the basis of 
their disabilities [we]re frequently unable to

[[Page 17010]]

invoke the ADA's protections because they [we]re not considered 
people with disabilities when the effects of their medication, 
medical supplies, behavioral adaptations, or other interventions 
[we]re considered.'' Joint Hoyer-Sensenbrenner Statement at 2; see 
also 2008 Senate Statement of Managers at 9 (``This provision is 
intended to eliminate the situation created under [prior] law in 
which impairments that are mitigated [did] not constitute 
disabilities but [were the basis for discrimination].''). To the 
extent cases pre-dating the 2008 Amendments Act reasoned otherwise, 
they are contrary to the law as amended. See 2008 House Judiciary 
Committee Report at 9 & nn.25, 20-21 (citing, e.g., McClure v. 
General Motors Corp., 75 F. App'x 983 (5th Cir. 2003) (court held 
that individual with muscular dystrophy who, with the mitigating 
measure of ``adapting'' how he performed manual tasks, had 
successfully learned to live and work with his disability was 
therefore not an individual with a disability); Orr v. Wal-Mart 
Stores, Inc., 297 F.3d 720 (8th Cir. 2002) (court held that Sutton 
v. United Air Lines, Inc., 527 U.S. 471 (1999), required 
consideration of the ameliorative effects of plaintiff's careful 
regimen of medicine, exercise and diet, and declined to consider 
impact of uncontrolled diabetes on plaintiff's ability to see, 
speak, read, and walk); Gonzales v. National Bd. of Med. Examiners, 
225 F.3d 620 (6th Cir. 2000) (where the court found that an 
individual with a diagnosed learning disability was not 
substantially limited after considering the impact of self-
accommodations that allowed him to read and achieve academic 
success); McMullin v. Ashcroft, 337 F. Supp. 2d 1281 (D. Wyo. 2004) 
(individual fired because of clinical depression not protected 
because of the successful management of the condition with 
medication for fifteen years); Eckhaus v. Consol. Rail Corp., 2003 
WL 23205042 (D.N.J. Dec. 24, 2003) (individual fired because of a 
hearing impairment was not protected because a hearing aid helped 
correct that impairment); Todd v. Academy Corp., 57 F. Supp. 2d 448, 
452 (S.D. Tex. 1999) (court held that because medication reduced the 
frequency and intensity of plaintiff's seizures, he was not 
disabled)).
    An individual who, because of the use of a mitigating measure, 
has experienced no limitations, or only minor limitations, related 
to the impairment may still be an individual with a disability, 
where there is evidence that in the absence of an effective 
mitigating measure the individual's impairment would be 
substantially limiting. For example, someone who began taking 
medication for hypertension before experiencing substantial 
limitations related to the impairment would still be an individual 
with a disability if, without the medication, he or she would now be 
substantially limited in functions of the cardiovascular or 
circulatory system.
    Evidence showing that an impairment would be substantially 
limiting in the absence of the ameliorative effects of mitigating 
measures could include evidence of limitations that a person 
experienced prior to using a mitigating measure, evidence concerning 
the expected course of a particular disorder absent mitigating 
measures, or readily available and reliable information of other 
types. However, we expect that consistent with the Amendments Act's 
command (and the related rules of construction in the regulations) 
that the definition of disability ``should not demand extensive 
analysis,'' covered entities and courts will in many instances be 
able to conclude that a substantial limitation has been shown 
without resort to such evidence.
    The Amendments Act provides an ``illustrative but non-
comprehensive list of the types of mitigating measures that are not 
to be considered.'' See 2008 Senate Statement of Managers at 9. 
Section 1630.2(j)(5) of the regulations includes all of those 
mitigating measures listed in the ADA Amendments Act's illustrative 
list of mitigating measures, including reasonable accommodations (as 
applied under title I) or ``auxiliary aids or services'' (as defined 
by 42 U.S.C. 12103(1) and applied under titles II and III).
    Since it would be impossible to guarantee comprehensiveness in a 
finite list, the list of examples of mitigating measures provided in 
the ADA and the regulations is non-exhaustive. See 2008 House 
Judiciary Committee Report at 20. The absence of any particular 
mitigating measure from the list in the regulations should not 
convey a negative implication as to whether the measure is a 
mitigating measure under the ADA. See 2008 Senate Statement of 
Managers at 9.
    For example, the fact that mitigating measures include 
``reasonable accommodations'' generally makes it unnecessary to 
mention specific kinds of accommodations. Nevertheless, the use of a 
service animal, job coach, or personal assistant on the job would 
certainly be considered types of mitigating measures, as would the 
use of any device that could be considered assistive technology, and 
whether individuals who use these measures have disabilities would 
be determined without reference to their ameliorative effects. See 
2008 House Judiciary Committee Report at 20; 2008 House Educ. & 
Labor Rep. at 15. Similarly, adaptive strategies that might 
mitigate, or even allow an individual to otherwise avoid performing 
particular major life activities, are mitigating measures and also 
would not be considered in determining whether an impairment is 
substantially limiting. Id.
    The determination of whether or not an individual's impairment 
substantially limits a major life activity is unaffected by whether 
the individual chooses to forgo mitigating measures. For individuals 
who do not use a mitigating measure (including for example 
medication or reasonable accommodation that could alleviate the 
effects of an impairment), the availability of such measures has no 
bearing on whether the impairment substantially limits a major life 
activity. The limitations posed by the impairment on the individual 
and any negative (non-ameliorative) effects of mitigating measures 
used determine whether an impairment is substantially limiting. The 
origin of the impairment, whether its effects can be mitigated, and 
any ameliorative effects of mitigating measures in fact used may not 
be considered in determining if the impairment is substantially 
limiting. However, the use or non-use of mitigating measures, and 
any consequences thereof, including any ameliorative and non-
ameliorative effects, may be relevant in determining whether the 
individual is qualified or poses a direct threat to safety.
    The ADA Amendments Act and the regulations state that ``ordinary 
eyeglasses or contact lenses'' shall be considered in determining 
whether someone has a disability. This is an exception to the rule 
that the ameliorative effects of mitigating measures are not to be 
taken into account. ``The rationale behind this exclusion is that 
the use of ordinary eyeglasses or contact lenses, without more, is 
not significant enough to warrant protection under the ADA.'' Joint 
Hoyer-Sensenbrenner Statement at 2. Nevertheless, as discussed in 
greater detail below at Sec.  1630.10(b), if an applicant or 
employee is faced with a qualification standard that requires 
uncorrected vision (as the plaintiffs in the Sutton case were), and 
the applicant or employee who is adversely affected by the standard 
brings a challenge under the ADA, an employer will be required to 
demonstrate that the qualification standard is job related and 
consistent with business necessity. 2008 Senate Statement of 
Managers at 9.
    The ADAAA and the EEOC's regulations both define the term 
``ordinary eyeglasses or contact lenses'' as lenses that are 
``intended to fully correct visual acuity or eliminate refractive 
error.'' So, if an individual with severe myopia uses eyeglasses or 
contact lenses that are intended to fully correct visual acuity or 
eliminate refractive error, they are ordinary eyeglasses or contact 
lenses, and therefore any inquiry into whether such individual is 
substantially limited in seeing or reading would be based on how the 
individual sees or reads with the benefit of the eyeglasses or 
contact lenses. Likewise, if the only visual loss an individual 
experiences affects the ability to see well enough to read, and the 
individual's ordinary reading glasses are intended to completely 
correct for this visual loss, the ameliorative effects of using the 
reading glasses must be considered in determining whether the 
individual is substantially limited in seeing. Additionally, 
eyeglasses or contact lenses that are the wrong prescription or an 
outdated prescription may nevertheless be ``ordinary'' eyeglasses or 
contact lenses, if a proper prescription would fully correct visual 
acuity or eliminate refractive error.
    Both the statute and the regulations distinguish ``ordinary 
eyeglasses or contact lenses'' from ``low vision devices,'' which 
function by magnifying, enhancing, or otherwise augmenting a visual 
image, and which are not considered when determining whether someone 
has a disability. The regulations do not establish a specific level 
of visual acuity (e.g., 20/20) as the basis for determining whether 
eyeglasses or contact lenses should be considered ``ordinary'' 
eyeglasses or contact lenses. Whether lenses fully correct visual 
acuity or eliminate refractive error is best determined on a case-
by-case basis, in light of current and objective medical evidence. 
Moreover, someone who uses ordinary eyeglasses or contact lenses is 
not automatically considered to be outside

[[Page 17011]]

the ADA's protection. Such an individual may demonstrate that, even 
with the use of ordinary eyeglasses or contact lenses, his vision is 
still substantially limited when compared to most people.

Section 1630.2(j)(1)(vii): Impairments That Are Episodic or in 
Remission

    Section 1630.2(j)(1)(vii) states: ``An impairment that is 
episodic or in remission is a disability if it would substantially 
limit a major life activity when active.''
    An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity in its active 
state. ``This provision is intended to reject the reasoning of court 
decisions concluding that certain individuals with certain 
conditions--such as epilepsy or post traumatic stress disorder--were 
not protected by the ADA because their conditions were episodic or 
intermittent.'' Joint Hoyer-Sensenbrenner Statement at 2-3. The 
legislative history provides: ``This * * * rule of construction thus 
rejects the reasoning of the courts in cases like Todd v. Academy 
Corp. [57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] where the court 
found that the plaintiff's epilepsy, which resulted in short 
seizures during which the plaintiff was unable to speak and 
experienced tremors, was not sufficiently limiting, at least in part 
because those seizures occurred episodically. It similarly rejects 
the results reached in cases [such as Pimental v. Dartmouth-Hitchock 
Clinic, 236 F. Supp. 2d 177, 182-83 (D.N.H. 2002)] where the courts 
have discounted the impact of an impairment [such as cancer] that 
may be in remission as too short-lived to be substantially limiting. 
It is thus expected that individuals with impairments that are 
episodic or in remission (e.g., epilepsy, multiple sclerosis, 
cancer) will be able to establish coverage if, when active, the 
impairment or the manner in which it manifests (e.g., seizures) 
substantially limits a major life activity.'' 2008 House Judiciary 
Committee Report at 19-20.
    Other examples of impairments that may be episodic include, but 
are not limited to, hypertension, diabetes, asthma, major depressive 
disorder, bipolar disorder, and schizophrenia. See 2008 House 
Judiciary Committee Report at 19-20. The fact that the periods 
during which an episodic impairment is active and substantially 
limits a major life activity may be brief or occur infrequently is 
no longer relevant to determining whether the impairment 
substantially limits a major life activity. For example, a person 
with post-traumatic stress disorder who experiences intermittent 
flashbacks to traumatic events is substantially limited in brain 
function and thinking.

Section 1630.2(j)(1)(viii): Substantial Limitation in Only One Major 
Life Activity Required

    Section 1630.2(j)(1)(viii) states: ``An impairment that 
substantially limits one major life activity need not substantially 
limit other major life activities in order to be considered a 
substantially limiting impairment.''
    The ADAAA explicitly states that an impairment need only 
substantially limit one major life activity to be considered a 
disability under the ADA. See ADAAA Section 4(a); 42 U.S.C. 
12102(4)(C). ``This responds to and corrects those courts that have 
required individuals to show that an impairment substantially limits 
more than one life activity.'' 2008 Senate Statement of Managers at 
8. In addition, this rule of construction is ``intended to clarify 
that the ability to perform one or more particular tasks within a 
broad category of activities does not preclude coverage under the 
ADA.'' Id. To the extent cases pre-dating the applicability of the 
2008 Amendments Act reasoned otherwise, they are contrary to the law 
as amended. Id. (citing Holt v. Grand Lake Mental Health Ctr., Inc., 
443 F. 3d 762 (10th Cir. 2006) (holding an individual with cerebral 
palsy who could not independently perform certain specified manual 
tasks was not substantially limited in her ability to perform a 
``broad range'' of manual tasks)); see also 2008 House Judiciary 
Committee Report at 19 & n.52 (this legislatively corrects court 
decisions that, with regard to the major life activity of performing 
manual tasks, ``have offset substantial limitation in the 
performance of some tasks with the ability to perform others'' 
(citing Holt)).
    For example, an individual with diabetes is substantially 
limited in endocrine function and thus an individual with a 
disability under the first prong of the definition. He need not also 
show that he is substantially limited in eating to qualify for 
coverage under the first prong. An individual whose normal cell 
growth is substantially limited due to lung cancer need not also 
show that she is substantially limited in breathing or respiratory 
function. And an individual with HIV infection is substantially 
limited in the function of the immune system, and therefore is an 
individual with a disability without regard to whether his or her 
HIV infection substantially limits him or her in reproduction.
    In addition, an individual whose impairment substantially limits 
a major life activity need not additionally demonstrate a resulting 
limitation in the ability to perform activities of central 
importance to daily life in order to be considered an individual 
with a disability under Sec.  1630.2(g)(1)(i) or Sec.  
1630.2(g)(1)(ii), as cases relying on the Supreme Court's decision 
in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), 
had held prior to the ADA Amendments Act.
    Thus, for example, someone with an impairment resulting in a 20-
pound lifting restriction that lasts or is expected to last for 
several months is substantially limited in the major life activity 
of lifting, and need not also show that he is unable to perform 
activities of daily living that require lifting in order to be 
considered substantially limited in lifting. Similarly, someone with 
monocular vision whose depth perception or field of vision would be 
substantially limited, with or without any compensatory strategies 
the individual may have developed, need not also show that he is 
unable to perform activities of central importance to daily life 
that require seeing in order to be substantially limited in seeing.

Section 1630.2(j)(1)(ix): Effects of an Impairment Lasting Fewer Than 
Six Months Can Be Substantially Limiting

    Section 1630.2(j)(1)(ix) states: ``The six-month `transitory' 
part of the `transitory and minor' exception to `regarded as' 
coverage in Sec.  1630.2(l) does not apply to the definition of 
`disability' under Sec.  1630.2(g)(1)(i) or Sec.  1630.2(g)(1)(ii). 
The effects of an impairment lasting or expected to last fewer than 
six months can be substantially limiting within the meaning of this 
section.''
    The regulations include a clear statement that the definition of 
an impairment as transitory, that is, ``lasting or expected to last 
for six months or less,'' only applies to the ``regarded as'' 
(third) prong of the definition of ``disability'' as part of the 
``transitory and minor'' defense to ``regarded as'' coverage. It 
does not apply to the first or second prong of the definition of 
disability. See Joint Hoyer-Sensenbrenner Statement at 3 (``[T]here 
is no need for the transitory and minor exception under the first 
two prongs because it is clear from the statute and the legislative 
history that a person can only bring a claim if the impairment 
substantially limits one or more major life activities or the 
individual has a record of an impairment that substantially limits 
one or more major life activities.'').
    Therefore, an impairment does not have to last for more than six 
months in order to be considered substantially limiting under the 
first or the second prong of the definition of disability. For 
example, as noted above, if an individual has a back impairment that 
results in a 20-pound lifting restriction that lasts for several 
months, he is substantially limited in the major life activity of 
lifting, and therefore covered under the first prong of the 
definition of disability. At the same time, ``[t]he duration of an 
impairment is one factor that is relevant in determining whether the 
impairment substantially limits a major life activity. Impairments 
that last only for a short period of time are typically not covered, 
although they may be covered if sufficiently severe.'' Joint Hoyer-
Sensenbrenner Statement at 5.

Section 1630.2(j)(3) Predictable Assessments

    As the regulations point out, disability is determined based on 
an individualized assessment. There is no ``per se'' disability. 
However, as recognized in the regulations, the individualized 
assessment of some kinds of impairments will virtually always result 
in a determination of disability. The inherent nature of these types 
of medical conditions will in virtually all cases give rise to a 
substantial limitation of a major life activity. Cf. Heiko v. 
Columbo Savings Bank, F.S.B., 434 F.3d 249, 256 (4th Cir. 2006) 
(stating, even pre-ADAAA, that ``certain impairments are by their 
very nature substantially limiting: the major life activity of 
seeing, for example, is always substantially limited by 
blindness''). Therefore, with respect to these types of impairments, 
the necessary individualized assessment should be particularly 
simple and straightforward.
    This result is the consequence of the combined effect of the 
statutory changes to the definition of disability contained in the

[[Page 17012]]

Amendments Act and flows from application of the rules of 
construction set forth in Sec. Sec.  1630.2(j)(1)(i)-(ix) (including 
the lower standard for ``substantially limits''; the rule that major 
life activities include major bodily functions; the principle that 
impairments that are episodic or in remission are disabilities if 
they would be substantially limiting when active; and the 
requirement that the ameliorative effects of mitigating measures 
(other than ordinary eyeglasses or contact lenses) must be 
disregarded in assessing whether an individual has a disability).
    The regulations at Sec.  1630.2(j)(3)(iii) provide examples of 
the types of impairments that should easily be found to 
substantially limit a major life activity. The legislative history 
states that Congress modeled the ADA definition of disability on the 
definition contained in the Rehabilitation Act, and said it wished 
to return courts to the way they had construed that definition. See 
2008 House Judiciary Committee Report at 6. Describing this goal, 
the legislative history states that courts had interpreted the 
Rehabilitation Act definition ``broadly to include persons with a 
wide range of physical and mental impairments such as epilepsy, 
diabetes, multiple sclerosis, and intellectual and developmental 
disabilities * * * even where a mitigating measure--like medication 
or a hearing aid--might lessen their impact on the individual.'' 
Id.; see also id. at 9 (referring to individuals with disabilities 
that had been covered under the Rehabilitation Act and that Congress 
intended to include under the ADA--``people with serious health 
conditions like epilepsy, diabetes, cancer, cerebral palsy, multiple 
sclerosis, intellectual and developmental disabilities''); id. at 
n.6 (citing cases also finding that cerebral palsy, hearing 
impairments, mental retardation, heart disease, and vision in only 
one eye were disabilities under the Rehabilitation Act); id. at 10 
(citing testimony from Rep. Steny H. Hoyer, one of the original lead 
sponsors of the ADA in 1990, stating that ``we could not have 
fathomed that people with diabetes, epilepsy, heart conditions, 
cancer, mental illnesses and other disabilities would have their ADA 
claims denied because they would be considered too functional to 
meet the definition of disability''); 2008 Senate Statement of 
Managers at 3 (explaining that ``we [we]re faced with a situation in 
which physical or mental impairments that would previously [under 
the Rehabilitation Act] have been found to constitute disabilities 
[we]re not considered disabilities'' and citing individuals with 
impairments such as amputation, intellectual disabilities, epilepsy, 
multiple sclerosis, diabetes, muscular dystrophy, and cancer as 
examples).
    Of course, the impairments listed in subparagraph 
1630.2(j)(3)(iii) may substantially limit a variety of other major 
life activities in addition to those listed in the regulation. For 
example, mobility impairments requiring the use of a wheelchair 
substantially limit the major life activity of walking. Diabetes may 
substantially limit major life activities such as eating, sleeping, 
and thinking. Major depressive disorder may substantially limit 
major life activities such as thinking, concentrating, sleeping, and 
interacting with others. Multiple sclerosis may substantially limit 
major life activities such as walking, bending, and lifting.
    By using the term ``brain function'' to describe the system 
affected by various mental impairments, the Commission is expressing 
no view on the debate concerning whether mental illnesses are caused 
by environmental or biological factors, but rather intends the term 
to capture functions such as the ability of the brain to regulate 
thought processes and emotions.

Section 1630.2(j)(4) Condition, Manner, or Duration

    The regulations provide that facts such as the ``condition, 
manner, or duration'' of an individual's performance of a major life 
activity may be useful in determining whether an impairment results 
in a substantial limitation. In the legislative history of the 
ADAAA, Congress reiterated what it had said at the time of the 
original ADA: ``A person is considered an individual with a 
disability for purposes of the first prong of the definition when 
[one or more of] the individual's important life activities are 
restricted as to the conditions, manner, or duration under which 
they can be performed in comparison to most people.'' 2008 Senate 
Statement of Managers at 7 (citing 1989 Senate Report at 23). 
According to Congress: ``We particularly believe that this test, 
which articulated an analysis that considered whether a person's 
activities are limited in condition, duration and manner, is a 
useful one. We reiterate that using the correct standard--one that 
is lower than the strict or demanding standard created by the 
Supreme Court in Toyota--will make the disability determination an 
appropriate threshold issue but not an onerous burden for those 
seeking accommodations * * *. At the same time, plaintiffs should 
not be constrained from offering evidence needed to establish that 
their impairment is substantially limiting.'' 2008 Senate Statement 
of Managers at 7.
    Consistent with the legislative history, an impairment may 
substantially limit the ``condition'' or ``manner'' under which a 
major life activity can be performed in a number of ways. For 
example, the condition or manner under which a major life activity 
can be performed may refer to the way an individual performs a major 
life activity. Thus, the condition or manner under which a person 
with an amputated hand performs manual tasks will likely be more 
cumbersome than the way that someone with two hands would perform 
the same tasks.
    Condition or manner may also describe how performance of a major 
life activity affects the individual with an impairment. For 
example, an individual whose impairment causes pain or fatigue that 
most people would not experience when performing that major life 
activity may be substantially limited. Thus, the condition or manner 
under which someone with coronary artery disease performs the major 
life activity of walking would be substantially limiting if the 
individual experiences shortness of breath and fatigue when walking 
distances that most people could walk without experiencing such 
effects. Similarly, condition or manner may refer to the extent to 
which a major life activity, including a major bodily function, can 
be performed. For example, the condition or manner under which a 
major bodily function can be performed may be substantially limited 
when the impairment ``causes the operation [of the bodily function] 
to over-produce or under-produce in some harmful fashion.'' See 2008 
House Judiciary Committee Report at 17.
    ``Duration'' refers to the length of time an individual can 
perform a major life activity or the length of time it takes an 
individual to perform a major life activity, as compared to most 
people in the general population. For example, a person whose back 
or leg impairment precludes him or her from standing for more than 
two hours without significant pain would be substantially limited in 
standing, since most people can stand for more than two hours 
without significant pain. However, a person who can walk for ten 
miles continuously is not substantially limited in walking merely 
because on the eleventh mile, he or she begins to experience pain 
because most people would not be able to walk eleven miles without 
experiencing some discomfort. See 2008 Senate Statement of Managers 
at 7 (citing 1989 Senate Report at 23).
    The regulations provide that in assessing substantial limitation 
and considering facts such as condition, manner, or duration, the 
non-ameliorative effects of mitigating measures may be considered. 
Such ``non-ameliorative effects'' could include negative side 
effects of medicine, burdens associated with following a particular 
treatment regimen, and complications that arise from surgery, among 
others. Of course, in many instances, it will not be necessary to 
assess the negative impact of a mitigating measure in determining 
that a particular impairment substantially limits a major life 
activity. For example, someone with end-stage renal disease is 
substantially limited in kidney function, and it thus is not 
necessary to consider the burdens that dialysis treatment imposes.
    Condition, manner, or duration may also suggest the amount of 
time or effort an individual has to expend when performing a major 
life activity because of the effects of an impairment, even if the 
individual is able to achieve the same or similar result as someone 
without the impairment. For this reason, the regulations include 
language which says that the outcome an individual with a disability 
is able to achieve is not determinative of whether he or she is 
substantially limited in a major life activity.
    Thus, someone with a learning disability may achieve a high 
level of academic success, but may nevertheless be substantially 
limited in the major life activity of learning because of the 
additional time or effort he or she must spend to read, write, or 
learn compared to most people in the general population. As Congress 
emphasized in passing the Amendments Act, ``[w]hen considering the 
condition, manner, or duration in which an individual with a 
specific learning disability performs a major life activity, it is 
critical to reject the assumption that an individual who has 
performed well academically cannot be

[[Page 17013]]

substantially limited in activities such as learning, reading, 
writing, thinking, or speaking.'' 2008 Senate Statement of Managers 
at 8. Congress noted that: ``In particular, some courts have found 
that students who have reached a high level of academic achievement 
are not to be considered individuals with disabilities under the 
ADA, as such individuals may have difficulty demonstrating 
substantial limitation in the major life activities of learning or 
reading relative to `most people.' When considering the condition, 
manner or duration in which an individual with a specific learning 
disability performs a major life activity, it is critical to reject 
the assumption that an individual who performs well academically or 
otherwise cannot be substantially limited in activities such as 
learning, reading, writing, thinking, or speaking. As such, the 
Committee rejects the findings in Price v. National Board of Medical 
Examiners, Gonzales v. National Board of Medical Examiners, and Wong 
v. Regents of University of California. The Committee believes that 
the comparison of individuals with specific learning disabilities to 
`most people' is not problematic unto itself, but requires a careful 
analysis of the method and manner in which an individual's 
impairment limits a major life activity. For the majority of the 
population, the basic mechanics of reading and writing do not pose 
extraordinary lifelong challenges; rather, recognizing and forming 
letters and words are effortless, unconscious, automatic processes. 
Because specific learning disabilities are neurologically-based 
impairments, the process of reading for an individual with a reading 
disability (e.g. dyslexia) is word-by-word, and otherwise 
cumbersome, painful, deliberate and slow--throughout life. The 
Committee expects that individuals with specific learning 
disabilities that substantially limit a major life activity will be 
better protected under the amended Act.'' 2008 House Educ. & Labor 
Rep. at 10-11.
    It bears emphasizing that while it may be useful in appropriate 
cases to consider facts such as condition, manner, or duration, it 
is always necessary to consider and apply the rules of construction 
in Sec.  1630.2(j)(1)(i)-(ix) that set forth the elements of broad 
coverage enacted by Congress. 2008 Senate Statement of Managers at 
6. Accordingly, while the Commission's regulations retain the 
concept of ``condition, manner, or duration,'' they no longer 
include the additional list of ``substantial limitation'' factors 
contained in the previous version of the regulations (i.e., the 
nature and severity of the impairment, duration or expected duration 
of the impairment, and actual or expected permanent or long-term 
impact of or resulting from the impairment).
    Finally, ``condition, manner, or duration'' are not intended to 
be used as a rigid three-part standard that must be met to establish 
a substantial limitation. ``Condition, manner, or duration'' are not 
required ``factors'' that must be considered as a talismanic test. 
Rather, in referring to ``condition, manner, or duration,'' the 
regulations make clear that these are merely the types of facts that 
may be considered in appropriate cases. To the extent such aspects 
of limitation may be useful or relevant to show a substantial 
limitation in a particular fact pattern, some or all of them (and 
related facts) may be considered, but evidence relating to each of 
these facts may not be necessary to establish coverage.
    At the same time, individuals seeking coverage under the first 
or second prong of the definition of disability should not be 
constrained from offering evidence needed to establish that their 
impairment is substantially limiting. See 2008 Senate Statement of 
Managers at 7. Of course, covered entities may defeat a showing of 
``substantial limitation'' by refuting whatever evidence the 
individual seeking coverage has offered, or by offering evidence 
that shows an impairment does not impose a substantial limitation on 
a major life activity. However, a showing of substantial limitation 
is not defeated by facts related to ``condition, manner, or 
duration'' that are not pertinent to the substantial limitation the 
individual has proffered.

Sections 1630.2(j)(5) and (6) Examples of Mitigating Measures; Ordinary 
Eyeglasses or Contact Lenses

    These provisions of the regulations provide numerous examples of 
mitigating measures and the definition of ``ordinary eyeglasses or 
contact lenses.'' These definitions have been more fully discussed 
in the portions of this interpretive guidance concerning the rules 
of construction in Sec.  1630.2(j)(1).

Substantially Limited in Working

    The Commission has removed from the text of the regulations a 
discussion of the major life activity of working. This is consistent 
with the fact that no other major life activity receives special 
attention in the regulation, and with the fact that, in light of the 
expanded definition of disability established by the Amendments Act, 
this major life activity will be used in only very targeted 
situations.
    In most instances, an individual with a disability will be able 
to establish coverage by showing substantial limitation of a major 
life activity other than working; impairments that substantially 
limit a person's ability to work usually substantially limit one or 
more other major life activities. This will be particularly true in 
light of the changes made by the ADA Amendments Act. See, e.g., 
Corley v. Dep't of Veterans Affairs ex rel Principi, 218 F. App'x. 
727, 738 (10th Cir. 2007) (employee with seizure disorder was not 
substantially limited in working because he was not foreclosed from 
jobs involving driving, operating machinery, childcare, military 
service, and other jobs; employee would now be substantially limited 
in neurological function); Olds v. United Parcel Serv., Inc., 127 F. 
App'x. 779, 782 (6th Cir. 2005) (employee with bone marrow cancer 
was not substantially limited in working due to lifting restrictions 
caused by his cancer; employee would now be substantially limited in 
normal cell growth); Williams v. Philadelphia Hous. Auth. Police 
Dep't, 380 F.3d 751, 763-64 (3d Cir. 2004) (issue of material fact 
concerning whether police officer's major depression substantially 
limited him in performing a class of jobs due to restrictions on his 
ability to carry a firearm; officer would now be substantially 
limited in brain function).\2\
---------------------------------------------------------------------------

    \2\ In addition, many cases previously analyzed in terms of 
whether the plaintiff was ``substantially limited in working'' will 
now be analyzed under the ``regarded as'' prong of the definition of 
disability as revised by the Amendments Act. See, e.g., Cannon v. 
Levi Strauss & Co., 29 F. App'x. 331 (6th Cir. 2002) (factory worker 
laid off due to her carpal tunnel syndrome not regarded as 
substantially limited in working because her job of sewing machine 
operator was not a ``broad class of jobs''; she would now be 
protected under the third prong because she was fired because of her 
impairment, carpal tunnel syndrome); Bridges v. City of Bossier, 92 
F.3d 329 (5th Cir. 1996) (applicant not hired for firefighting job 
because of his mild hemophilia not regarded as substantially limited 
in working; applicant would now be protected under the third prong 
because he was not hired because of his impairment, hemophilia).
---------------------------------------------------------------------------

    In the rare cases where an individual has a need to demonstrate 
that an impairment substantially limits him or her in working, the 
individual can do so by showing that the impairment substantially 
limits his or her ability to perform a class of jobs or broad range 
of jobs in various classes as compared to most people having 
comparable training, skills, and abilities. In keeping with the 
findings and purposes of the Amendments Act, the determination of 
coverage under the law should not require extensive and elaborate 
assessment, and the EEOC and the courts are to apply a lower 
standard in determining when an impairment substantially limits a 
major life activity, including the major life activity of working, 
than they applied prior to the Amendments Act. The Commission 
believes that the courts, in applying an overly strict standard with 
regard to ``substantially limits'' generally, have reached 
conclusions with regard to what is necessary to demonstrate a 
substantial limitation in the major life activity of working that 
would be inconsistent with the changes now made by the Amendments 
Act. Accordingly, as used in this section the terms ``class of 
jobs'' and ``broad range of jobs in various classes'' will be 
applied in a more straightforward and simple manner than they were 
applied by the courts prior to the Amendments Act.\3\
---------------------------------------------------------------------------

    \3\ In analyzing working as a major life activity in the past, 
some courts have imposed a complex and onerous standard that would 
be inappropriate under the Amendments Act. See, e.g., Duncan v. 
WMATA, 240 F.3d 1110, 1115 (DC Cir. 2001) (manual laborer whose back 
injury prevented him from lifting more than 20 pounds was not 
substantially limited in working because he did not present evidence 
of the number and types of jobs available to him in the Washington 
area; testimony concerning his inquiries and applications for truck 
driving jobs that all required heavy lifting was insufficient); 
Taylor v. Federal Express Corp., 429 F.3d 461, 463-64 (4th Cir. 
2005) (employee's impairment did not substantially limit him in 
working because, even though evidence showed that employee's injury 
disqualified him from working in numerous jobs in his geographic 
region, it also showed that he remained qualified for many other 
jobs). Under the Amendments Act, the determination of whether a 
person is substantially limited in working is more straightforward 
and simple than it was prior to the Act.
---------------------------------------------------------------------------

    Demonstrating a substantial limitation in performing the unique 
aspects of a single specific job is not sufficient to establish that

[[Page 17014]]

a person is substantially limited in the major life activity of 
working.
    A class of jobs may be determined by reference to the nature of 
the work that an individual is limited in performing (such as 
commercial truck driving, assembly line jobs, food service jobs, 
clerical jobs, or law enforcement jobs) or by reference to job-
related requirements that an individual is limited in meeting (for 
example, jobs requiring repetitive bending, reaching, or manual 
tasks, jobs requiring repetitive or heavy lifting, prolonged sitting 
or standing, extensive walking, driving, or working under conditions 
such as high temperatures or noise levels).
    For example, if a person whose job requires heavy lifting 
develops a disability that prevents him or her from lifting more 
than fifty pounds and, consequently, from performing not only his or 
her existing job but also other jobs that would similarly require 
heavy lifting, that person would be substantially limited in working 
because he or she is substantially limited in performing the class 
of jobs that require heavy lifting.

Section 1630.2(k) Record of a Substantially Limiting Impairment

    The second prong of the definition of ``disability'' provides 
that an individual with a record of an impairment that substantially 
limits or limited a major life activity is an individual with a 
disability. The intent of this provision, in part, is to ensure that 
people are not discriminated against because of a history of 
disability. For example, the ``record of'' provision would protect 
an individual who was treated for cancer ten years ago but who is 
now deemed by a doctor to be free of cancer, from discrimination 
based on that prior medical history. This provision also ensures 
that individuals are not discriminated against because they have 
been misclassified as disabled. For example, individuals 
misclassified as having learning disabilities or intellectual 
disabilities (formerly termed ``mental retardation'') are protected 
from discrimination on the basis of that erroneous classification. 
Senate Report at 23; House Labor Report at 52-53; House Judiciary 
Report at 29; 2008 House Judiciary Report at 7-8 & n.14. Similarly, 
an employee who in the past was misdiagnosed with bipolar disorder 
and hospitalized as the result of a temporary reaction to medication 
she was taking has a record of a substantially limiting impairment, 
even though she did not actually have bipolar disorder.
    This part of the definition is satisfied where evidence 
establishes that an individual has had a substantially limiting 
impairment. The impairment indicated in the record must be an 
impairment that would substantially limit one or more of the 
individual's major life activities. There are many types of records 
that could potentially contain this information, including but not 
limited to, education, medical, or employment records.
    Such evidence that an individual has a past history of an 
impairment that substantially limited a major life activity is all 
that is necessary to establish coverage under the second prong. An 
individual may have a ``record of'' a substantially limiting 
impairment--and thus be protected under the ``record of'' prong of 
the statute--even if a covered entity does not specifically know 
about the relevant record. Of course, for the covered entity to be 
liable for discrimination under title I of the ADA, the individual 
with a ``record of'' a substantially limiting impairment must prove 
that the covered entity discriminated on the basis of the record of 
the disability.
    The terms ``substantially limits'' and ``major life activity'' 
under the second prong of the definition of ``disability'' are to be 
construed in accordance with the same principles applicable under 
the ``actual disability'' prong, as set forth in Sec.  1630.2(j).
    Individuals who are covered under the ``record of'' prong will 
often be covered under the first prong of the definition of 
disability as well. This is a consequence of the rule of 
construction in the ADAAA and the regulations providing that an 
individual with an impairment that is episodic or in remission can 
be protected under the first prong if the impairment would be 
substantially limiting when active. See 42 U.S.C. 12102(4)(D); Sec.  
1630.2(j)(1)(vii). Thus, an individual who has cancer that is 
currently in remission is an individual with a disability under the 
``actual disability'' prong because he has an impairment that would 
substantially limit normal cell growth when active. He is also 
covered by the ``record of'' prong based on his history of having 
had an impairment that substantially limited normal cell growth.
    Finally, this section of the EEOC's regulations makes it clear 
that an individual with a record of a disability is entitled to a 
reasonable accommodation currently needed for limitations resulting 
from or relating to the past substantially limiting impairment. This 
conclusion, which has been the Commission's long-standing position, 
is confirmed by language in the ADA Amendments Act stating that 
individuals covered only under the ``regarded as'' prong of the 
definition of disability are not entitled to reasonable 
accommodation. See 42 U.S.C. 12201(h). By implication, this means 
that individuals covered under the first or second prongs are 
otherwise eligible for reasonable accommodations. See 2008 House 
Judiciary Committee Report at 22 (``This makes clear that the duty 
to accommodate . . . arises only when an individual establishes 
coverage under the first or second prong of the definition.''). 
Thus, as the regulations explain, an employee with an impairment 
that previously substantially limited but no longer substantially 
limits, a major life activity may need leave or a schedule change to 
permit him or her to attend follow-up or ``monitoring'' appointments 
from a health care provider.

Section 1630.2(l) Regarded as Substantially Limited in a Major Life 
Activity

    Coverage under the ``regarded as'' prong of the definition of 
disability should not be difficult to establish. See 2008 House 
Judiciary Committee Report at 17 (explaining that Congress never 
expected or intended it would be a difficult standard to meet). 
Under the third prong of the definition of disability, an individual 
is ``regarded as having such an impairment'' if the individual is 
subjected to an action prohibited by the ADA because of an actual or 
perceived impairment that is not ``transitory and minor.''
    This third prong of the definition of disability was originally 
intended to express Congress's understanding that ``unfounded 
concerns, mistaken beliefs, fears, myths, or prejudice about 
disabilities are often just as disabling as actual impairments, and 
[its] corresponding desire to prohibit discrimination founded on 
such perceptions.'' 2008 Senate Statement of Managers at 9; 2008 
House Judiciary Committee Report at 17 (same). In passing the 
original ADA, Congress relied extensively on the reasoning of School 
Board of Nassau County v. Arline \4\ ``that the negative reactions 
of others are just as disabling as the actual impact of an 
impairment.'' 2008 Senate Statement of Managers at 9. The ADAAA 
reiterates Congress's reliance on the broad views enunciated in that 
decision, and Congress ``believe[s] that courts should continue to 
rely on this standard.'' Id.
---------------------------------------------------------------------------

    \4\ 480 U.S. at 282-83.
---------------------------------------------------------------------------

    Accordingly, the ADA Amendments Act broadened the application of 
the ``regarded as'' prong of the definition of disability. 2008 
Senate Statement of Managers at 9-10. In doing so, Congress rejected 
court decisions that had required an individual to establish that a 
covered entity perceived him or her to have an impairment that 
substantially limited a major life activity. This provision is 
designed to restore Congress's intent to allow individuals to 
establish coverage under the ``regarded as'' prong by showing that 
they were treated adversely because of an impairment, without having 
to establish the covered entity's beliefs concerning the severity of 
the impairment. Joint Hoyer-Sensenbrenner Statement at 3.
    Thus it is not necessary, as it was prior to the ADA Amendments 
Act, for an individual to demonstrate that a covered entity 
perceived him as substantially limited in the ability to perform a 
major life activity in order for the individual to establish that he 
or she is covered under the ``regarded as'' prong. Nor is it 
necessary to demonstrate that the impairment relied on by a covered 
entity is (in the case of an actual impairment) or would be (in the 
case of a perceived impairment) substantially limiting for an 
individual to be ``regarded as having such an impairment.'' In 
short, to qualify for coverage under the ``regarded as'' prong, an 
individual is not subject to any functional test. See 2008 Senate 
Statement of Managers at 13 (``The functional limitation imposed by 
an impairment is irrelevant to the third `regarded as' prong.''); 
2008 House Judiciary Committee Report at 17 (that is, ``the 
individual is not required to show that the perceived impairment 
limits performance of a major life activity''). The concepts of 
``major life activities'' and ``substantial limitation'' simply are 
not relevant in evaluating whether an individual is ``regarded as 
having such an impairment.''
    To illustrate how straightforward application of the ``regarded 
as'' prong is, if an employer refused to hire an applicant because 
of skin graft scars, the employer has regarded the applicant as an 
individual with a disability. Similarly, if an employer

[[Page 17015]]

terminates an employee because he has cancer, the employer has 
regarded the employee as an individual with a disability.
    A ``prohibited action'' under the ``regarded as'' prong refers 
to an action of the type that would be unlawful under the ADA (but 
for any defenses to liability). Such prohibited actions include, but 
are not limited to, refusal to hire, demotion, placement on 
involuntary leave, termination, exclusion for failure to meet a 
qualification standard, harassment, or denial of any other term, 
condition, or privilege of employment.
    Where an employer bases a prohibited employment action on an 
actual or perceived impairment that is not ``transitory and minor,'' 
the employer regards the individual as disabled, whether or not 
myths, fears, or stereotypes about disability motivated the 
employer's decision. Establishing that an individual is ``regarded 
as having such an impairment'' does not, by itself, establish 
liability. Liability is established only if an individual meets the 
burden of proving that the covered entity discriminated unlawfully 
within the meaning of section 102 of the ADA, 42 U.S.C. 12112.
    Whether a covered entity can ultimately establish a defense to 
liability is an inquiry separate from, and follows after, a 
determination that an individual was regarded as having a 
disability. Thus, for example, an employer who terminates an 
employee with angina from a manufacturing job that requires the 
employee to work around machinery, believing that the employee will 
pose a safety risk to himself or others if he were suddenly to lose 
consciousness, has regarded the individual as disabled. Whether the 
employer has a defense (e.g., that the employee posed a direct 
threat to himself or coworkers) is a separate inquiry.
    The fact that the ``regarded as'' prong requires proof of 
causation in order to show that a person is covered does not mean 
that proving a ``regarded as'' claim is complex. While a person must 
show, for both coverage under the ``regarded as'' prong and for 
ultimate liability, that he or she was subjected to a prohibited 
action because of an actual or perceived impairment, this showing 
need only be made once. Thus, evidence that a covered entity took a 
prohibited action because of an impairment will establish coverage 
and will be relevant in establishing liability, although liability 
may ultimately turn on whether the covered entity can establish a 
defense.
    As prescribed in the ADA Amendments Act, the regulations provide 
an exception to coverage under the ``regarded as'' prong where the 
impairment on which a prohibited action is based is both transitory 
(having an actual or expected duration of six months or less) and 
minor. The regulations make clear (at Sec.  1630.2(l)(2) and Sec.  
1630.15(f)) that this exception is a defense to a claim of 
discrimination. ``Providing this exception responds to concerns 
raised by employer organizations and is reasonable under the 
`regarded as' prong of the definition because individuals seeking 
coverage under this prong need not meet the functional limitation 
requirement contained in the first two prongs of the definition.'' 
2008 Senate Statement of Managers at 10; see also 2008 House 
Judiciary Committee Report at 18 (explaining that ``absent this 
exception, the third prong of the definition would have covered 
individuals who are regarded as having common ailments like the cold 
or flu, and this exception responds to concerns raised by members of 
the business community regarding potential abuse of this provision 
and misapplication of resources on individuals with minor ailments 
that last only a short period of time''). However, as an exception 
to the general rule for broad coverage under the ``regarded as'' 
prong, this limitation on coverage should be construed narrowly. 
2008 House Judiciary Committee Report at 18.
    The relevant inquiry is whether the actual or perceived 
impairment on which the employer's action was based is objectively 
``transitory and minor,'' not whether the employer claims it 
subjectively believed the impairment was transitory and minor. For 
example, an employer who terminates an employee whom it believes has 
bipolar disorder cannot take advantage of this exception by 
asserting that it believed the employee's impairment was transitory 
and minor, since bipolar disorder is not objectively transitory and 
minor. At the same time, an employer that terminated an employee 
with an objectively ``transitory and minor'' hand wound, mistakenly 
believing it to be symptomatic of HIV infection, will nevertheless 
have ``regarded'' the employee as an individual with a disability, 
since the covered entity took a prohibited employment action based 
on a perceived impairment (HIV infection) that is not ``transitory 
and minor.''
    An individual covered only under the ``regarded as'' prong is 
not entitled to reasonable accommodation. 42 U.S.C. 12201(h). Thus, 
in cases where reasonable accommodation is not at issue, the third 
prong provides a more straightforward framework for analyzing 
whether discrimination occurred. As Congress observed in enacting 
the ADAAA: ``[W]e expect [the first] prong of the definition to be 
used only by people who are affirmatively seeking reasonable 
accommodations or modifications. Any 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 which will 
require no showing with regard to the severity of his or her 
impairment.'' Joint Hoyer-Sensenbrenner Statement at 6.

Section 1630.2(m) Qualified Individual

    The ADA prohibits discrimination on the basis of disability 
against a qualified individual.'' * * *
* * * * *

Section 1630.2(o) Reasonable Accommodation

    An individual with a disability is considered ``qualified'' if 
the individual can perform the essential functions of the position 
held or desired with or without reasonable accommodation. A covered 
entity is required, absent undue hardship, to provide reasonable 
accommodation to an otherwise qualified individual with a 
substantially limiting impairment or a ``record of'' such an 
impairment. However, a covered entity is not required to provide an 
accommodation to an individual who meets the definition of 
disability solely under the ``regarded as'' prong.
    The legislative history of the ADAAA makes clear that Congress 
included this provision in response to various court decisions that 
had held (pre-Amendments Act) that individuals who were covered 
solely under the ``regarded as'' prong were eligible for reasonable 
accommodations. In those cases, the plaintiffs had been found not to 
be covered under the first prong of the definition of disability 
``because of the overly stringent manner in which the courts had 
been interpreting that prong.'' 2008 Senate Statement of Managers at 
11. The legislative history goes on to explain that ``[b]ecause of 
[Congress's] strong belief that accommodating individuals with 
disabilities is a key goal of the ADA, some members [of Congress] 
continue to have reservations about this provision.'' Id. However, 
Congress ultimately concluded that clarifying that individuals 
covered solely under the ``regarded as'' prong are not entitled to 
reasonable accommodations ``is an acceptable compromise given our 
strong expectation that such individuals would now be covered under 
the first prong of the definition [of disability], properly 
applied''). Further, individuals covered only under the third prong 
still may bring discrimination claims (other than failure-to-
accommodate claims) under title I of the ADA. 2008 Senate Statement 
of Managers at 9-10.
    In general, an accommodation is any change in the work 
environment or in the way things are customarily done that enables 
an individual with a disability to enjoy equal employment 
opportunities. There are three categories of reasonable 
accommodation. These are (1) accommodations that are required to 
ensure equal opportunity in the application process; (2) 
accommodations that enable the employer's employees with 
disabilities to perform the essential functions of the position held 
or desired; and (3) accommodations that enable the employer's 
employees with disabilities to enjoy equal benefits and privileges 
of employment as are enjoyed by employees without disabilities. It 
should be noted that nothing in this part prohibits employers or 
other covered entities from providing accommodations beyond those 
required by this part.
* * * * *

Section 1630.4 Discrimination Prohibited

    Paragraph (a) of this provision prohibits discrimination on the 
basis of disability against a qualified individual in all aspects of 
the employment relationship. The range of employment decisions 
covered by this nondiscrimination mandate is to be construed in a 
manner consistent with the regulations implementing section 504 of 
the Rehabilitation Act of 1973.
    Paragraph (b) makes it clear that the language ``on the basis of 
disability'' is not intended to create a cause of action for an 
individual without a disability who claims that someone with a 
disability was treated more favorably (disparate treatment), or was

[[Page 17016]]

provided a reasonable accommodation that an individual without a 
disability was not provided. See 2008 House Judiciary Committee 
Report at 21 (this provision ``prohibits reverse discrimination 
claims by disallowing claims based on the lack of disability''). 
Additionally, the ADA and this part do not affect laws that may 
require the affirmative recruitment or hiring of individuals with 
disabilities, or any voluntary affirmative action employers may 
undertake on behalf of individuals with disabilities. However, part 
1630 is not intended to limit the ability of covered entities to 
choose and maintain a qualified workforce. Employers can continue to 
use criteria that are job related and consistent with business 
necessity to select qualified employees, and can continue to hire 
employees who can perform the essential functions of the job.
    The Amendments Act modified title I's nondiscrimination 
provision to replace the prohibition on discrimination ``against a 
qualified individual with a disability because of the disability of 
such individual'' with a prohibition on discrimination ``against a 
qualified individual on the basis of disability.'' As the 
legislative history of the ADAAA explains: ``[T]he bill modifies the 
ADA to conform to the structure of Title VII and other civil rights 
laws by requiring an individual to demonstrate discrimination `on 
the basis of disability' rather than discrimination `against an 
individual with a disability' because of the individual's 
disability. We hope this will be an important signal to both lawyers 
and courts to spend less time and energy on the minutia of an 
individual's impairment, and more time and energy on the merits of 
the case--including whether discrimination occurred because of the 
disability, whether an individual was qualified for a job or 
eligible for a service, and whether a reasonable accommodation or 
modification was called for under the law.'' Joint Hoyer-
Sensenbrenner Statement at 4; see also 2008 House Judiciary Report 
at 21 (``This change harmonizes the ADA with other civil rights laws 
by focusing on whether a person who has been discriminated against 
has proven that the discrimination was based on a personal 
characteristic (disability), not on whether he or she has proven 
that the characteristic exists.'').

Section 1630.5 Limiting, Segregating and Classifying

    This provision and the several provisions that follow describe 
various specific forms of discrimination that are included within 
the general prohibition of Sec.  1630.4. The capabilities of 
qualified individuals must be determined on an individualized, case 
by case basis. Covered entities are also prohibited from segregating 
qualified employees into separate work areas or into separate lines 
of advancement on the basis of their disabilities.
* * * * *

Section 1630.9: Not Making Reasonable Accommodation

* * * * *

Section 1630.9(e)

    The purpose of this provision is to incorporate the 
clarification made in the ADA Amendments Act of 2008 that an 
individual is not entitled to reasonable accommodation under the ADA 
if the individual is only covered under the ``regarded as'' prong of 
the definition of ``individual with a disability.'' However, if the 
individual is covered under both the ``regarded as'' prong and one 
or both of the other two prongs of the definition of disability, the 
ordinary rules concerning the provision of reasonable accommodation 
apply.

Section 1630.10 Qualification Standards, Tests, and Other Selection 
Criteria

Section 1630.10(a)--In General

    The purpose of this provision is to ensure that individuals with 
disabilities are not excluded from job opportunities unless they are 
actually unable to do the job. It is to ensure that there is a fit 
between job criteria and an applicant's (or employee's) actual 
ability to do the job. Accordingly, job criteria that even 
unintentionally screen out, or tend to screen out, an individual 
with a disability or a class of individuals with disabilities 
because of their disability may not be used unless the employer 
demonstrates that those criteria, as used by the employer, are job 
related for the position to which they are being applied and are 
consistent with business necessity. The concept of ``business 
necessity'' has the same meaning as the concept of ``business 
necessity'' under section 504 of the Rehabilitation Act of 1973.
    Selection criteria that exclude, or tend to exclude, an 
individual with a disability or a class of individuals with 
disabilities because of their disability but do not concern an 
essential function of the job would not be consistent with business 
necessity.
    The use of selection criteria that are related to an essential 
function of the job may be consistent with business necessity. 
However, selection criteria that are related to an essential 
function of the job may not be used to exclude an individual with a 
disability if that individual could satisfy the criteria with the 
provision of a reasonable accommodation. Experience under a similar 
provision of the regulations implementing section 504 of the 
Rehabilitation Act indicates that challenges to selection criteria 
are, in fact, often resolved by reasonable accommodation.
    This provision is applicable to all types of selection criteria, 
including safety requirements, vision or hearing requirements, 
walking requirements, lifting requirements, and employment tests. 
See 1989 Senate Report at 37-39; House Labor Report at 70-72; House 
Judiciary Report at 42. As previously noted, however, it is not the 
intent of this part to second guess an employer's business judgment 
with regard to production standards. See Sec.  1630.2(n) (Essential 
Functions). Consequently, production standards will generally not be 
subject to a challenge under this provision.
    The Uniform Guidelines on Employee Selection Procedures (UGESP) 
29 CFR part 1607 do not apply to the Rehabilitation Act and are 
similarly inapplicable to this part.

Section 1630.10(b)--Qualification Standards and Tests Related to 
Uncorrected Vision

    This provision allows challenges to qualification standards 
based on uncorrected vision, even where the person excluded by a 
standard has fully corrected vision with ordinary eyeglasses or 
contact lenses. An individual challenging a covered entity's 
application of a qualification standard, test, or other criterion 
based on uncorrected vision need not be a person with a disability. 
In order to have standing to challenge such a standard, test, or 
criterion, however, a person must be adversely affected by such 
standard, test or criterion. The Commission also believes that such 
individuals will usually be covered under the ``regarded as'' prong 
of the definition of disability. Someone who wears eyeglasses or 
contact lenses to correct vision will still have an impairment, and 
a qualification standard that screens the individual out because of 
the impairment by requiring a certain level of uncorrected vision to 
perform a job will amount to an action prohibited by the ADA based 
on an impairment. (See Sec.  1630.2(l); Appendix to Sec.  
1630.2(l).)
    In either case, a covered entity may still defend a 
qualification standard requiring a certain level of uncorrected 
vision by showing that it is job related and consistent with 
business necessity. For example, an applicant or employee with 
uncorrected vision of 20/100 who wears glasses that fully correct 
his vision may challenge a police department's qualification 
standard that requires all officers to have uncorrected vision of no 
less than 20/40 in one eye and 20/100 in the other, and visual 
acuity of 20/20 in both eyes with correction. The department would 
then have to establish that the standard is job related and 
consistent with business necessity.

Section 1630.15 Defenses

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Section 1630.15(f) Claims Based on Transitory and Minor Impairments 
Under the ``Regarded As'' Prong

    It may be a defense to a charge of discrimination where coverage 
would be shown solely under the ``regarded as'' prong of the 
definition of disability that the impairment is (in the case of an 
actual impairment) or would be (in the case of a perceived 
impairment) both transitory and minor. Section 1630.15(f)(1) 
explains that an individual cannot be ``regarded as having such an 
impairment'' if the impairment is both transitory (defined by the 
ADAAA as lasting or expected to last less than six months) and 
minor. Section 1630.15(f)(2) explains that the determination of 
``transitory and minor'' is made objectively. For example, an 
individual who is denied a promotion because he has a minor back 
injury would be ``regarded as'' an individual with a disability if 
the back impairment lasted or was expected to last more than six 
months. Although minor, the impairment is not transitory. Similarly, 
if an employer discriminates against an employee based on the 
employee's bipolar disorder (an impairment that is not transitory 
and minor), the employee is ``regarded as'' having a

[[Page 17017]]

disability even if the employer subjectively believes that the 
employee's disorder is transitory and minor.
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[FR Doc. 2011-6056 Filed 3-24-11; 8:45 am]
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