EEOC Expands "Disabled" Definition

Employers are at risk for suits as EEOC implements ADA Amendments Act.

Ella Williams worked on an assembly line building engines for Toyota Motor Manufacturing beginning in 1990. Years of work with pneumatic tools eventually caused Williams pain in her wrists, arms and hands. She was diagnosed with carpal tunnel syndrome and tendonitis. Her doctor restricted her from lifting anything weighing more than 20 pounds and from any job that required her to raise her arms over her head or to repetitively flex and extend her elbows and wrists. Toyota reassigned her to a quality-control position where she would wipe oil onto new vehicles and visually inspect the paint job for flaws. But soon thereafter, Williams began to experience neck and shoulder pain and was diagnosed with inflammation of the muscles and tendons in her shoulder blades, nerve compression and nerve irritation that affected both arms. Williams’ doctor placed further restrictions on the tasks she could perform, and soon thereafter she was terminated. She sued under the Americans with Disabilities Act (ADA), alleging that Toyota failed to reasonably accommodate her disability. In 2002, the Supreme Court found that Williams’ case never should have reached the question of whether Toyota accommodated her because Williams wasn’t disabled under the law in the first place.

Williams’ story is just one of several ADA cases to reach the high court in the past decade that got civil rights advocates up in arms. If someone with Williams’ significant impairments wasn’t entitled to the protection of the law, then who was? 

It was against that backdrop that Congress passed the ADA Amendments Act (ADAAA) in 2008, substantially expanding the definition of “disabled” under the law and expressly doing away with cases that restricted the coverage of individuals with impairments ranging from learning disabilities to carpal tunnel syndrome. On May 24, the Equal Employment Opportunity Commission’s (EEOC) final regulations implementing the ADAAA went into effect. Employers are bracing for an onslaught of ADA claims from plaintiffs who wouldn’t have been covered by the law just a few years ago.

“It’s jokingly being called the All Americans are Disabled and Must be Accommodated Act,” says Thomas Wilde, a shareholder at Vedder Price. “It gives an extremely expansive definition of ‘disability.’”

Mitigating Measures

The most significant feature of the legislation and the EEOC regulations is the systematic overhaul of longstanding concepts of who is covered under the law. Under past Supreme Court jurisprudence, if medication or a device lessened the effect of the person’s illness or impairment, then that person was not considered “disabled” within the meaning of the law. For instance, someone whose diabetes was well controlled with insulin would not be considered disabled. The ADAAA makes clear that courts can no longer take mitigating measures into account when deciding whether someone is disabled. In the past, many, if not most, ADA cases were screened out based on that question.

“The regs essentially say, ‘Let’s not fuss over the question of whether someone is disabled,’” says Fred Alvarez, a partner at Wilson Sonsini Goodrich & Rosati. “The EEOC sees that question as a distraction. That issue will not be litigated anymore, because it will now be virtually impossible to show that someone does not have a disability.”

Moreover, while previously the courts undertook an individual and contextual analysis of whether a specific person’s condition resulted in a limitation on a “major life activity,” the EEOC regulations explicitly state that many medical conditions—including autism, cancer, diabetes, epilepsy and bipolar disorder—will “in virtually all cases” result in a finding that the person is disabled within the law. Likewise, the regulations give an expended definition of “major life activity” (see “Life Activities Expanded.”)

“That process [of examining an individual’s impairment in context] has been sharply curtailed in a deliberate effort to swell the ranks of ADA plaintiffs and increase the likelihood that they will be successful,” says Paul Derrick, a partner at Cranfill Sumner & Hartzog.

New Accommodations

The upshot will be a shift in focus from the question of whether a worker was substantially impaired in a major life activity to the questions of whether the employer discriminated against the worker and whether the employer took appropriate steps to accommodate him. That greatly expands the scope of employers’ potential liabilities. “Every employment decision based on an individual’s inability to perform his or her job due to injury or illness is an ADA case waiting to happen,” Derrick says.

That requires companies to become even more vigilant in their efforts to accommodate individuals with impairments that limit them at work. An important first step is revisiting how accommodation efforts are documented.

“There should be a form that provides one method for all employees to request accommodation,” Wilde says. “You also have to document your meetings and what steps you take. Be ready to show that you sat down with the person more than once in an effort to craft a solution.”

Experts also recommend retraining front-line supervisors about the new law and an employer’s duty to accommodate.

“Conditions that everyone was accustomed to thinking were not disabilities now are,” Wilde says. “If the people on the front lines don’t know that you have to engage with those people, you may blow your obligation to engage in the interactive process.”

Rethinking Mental Disabilities

Employers also need to think broadly about what types of issues they will need to accommodate. For instance, Alvarez points out that because the regulations state that “interacting with others” is a major life activity, impairment of which constitutes a disability, employers need to be careful about dealing with employees who in the past were simply regarded as difficult to manage.

“It’s somewhat scary and uncertain,” he says. “What if someone is simply nasty to others? Might that person be considered disabled? To what extent do you have to accommodate someone’s bad behavior?”

Wilde agrees that mental disabilities and emotional disorders are going to become fertile ground for litigation under the ADAAA. “More plaintiffs lawyers will be willing to take on plaintiffs who allege that they’re disabled due to depression,” he says. “The statute has a wide reach.”

Contributing Author

Adele Nicholas

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