EEOC regulations may spur more ADA suits

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According to plaintiffs’ lawyers, proposed new regulations from the Equal Employment Opportunity Commission broadening the definition of “disability” mean that more Americans with Disabilities Act cases might get before a jury.

This would mark a big change from the status quo, where many cases are shut down at the summary judgment stage, said Aaron N. Halstead, of Hawks Quindel SC in Madison.

“Essentially, plaintiffs [in Wisconsin] had just stopped filing ADA cases,” he said. “Most people just file under the [Wisconsin] Fair Employment Act. I cannot even remember that last time I filed an ADA claim.

“The [U.S.] Supreme Court has so narrowed the definition of what it took to be considered disabled that in most practitioners’ views, unless you had a case that was just a slam-dunk, why take the chance?”

The state act has fewer remedies, but the interpretation of the statute by administrative law judges makes it “a more even ground to litigate on,” Halstead said.

Margaret R. Kurlinski, an associate with the Milwaukee headquarters of Godfrey & Kahn SC, said the new regulations won’t change the way most Wisconsin employers do business.

Kurlinski’s focus is mostly on counseling clients to stay in compliance with the law, rather than litigation.

She said, “For those employers who have always endeavored to keep their employees at work and doing work, these changes aren’t going to affect them too much, especially in Wisconsin, since we already have a fairly low threshold for when a disability qualifies under state law.”

But in federal court “the Act and the proposed amendments have changed the analysis, from whether an individual is disabled, straight to the accommodation issue.”

Per Se disabling conditions

The ADA Amendments Act of 2008, or ADAAA, amended the 1991 law to clarify the definition of “disability.”

The term is still defined as an impairment that substantially limits one or more major life activities, but the new law allows a broader interpretation of disability.

The proposed regulations, sec. 1630.2(j)(5), list conditions that will consistently meet the definition of disability, including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, obsessive-compulsive disorder, post-traumatic stress disorder and schizophrenia.

The regulations also expand the definition of major life activities in sec. 1630.2(i) to include “the operation of major bodily functions,” such as “hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular.”

In addition, the regulations provide that the positive effects from an individual’s use of one or more mitigating measures should be ignored when determining if an impairment substantially limits a major life activity — the lone exceptions, per sec. 1630.2(j)(3), being ordinary eyeglasses or contacts.

The regulations, 29 CFR Part 1630, were published in the Federal Register on Sept. 23 as a “Notice of Proposed Rulemaking,” opening a 60-day public comment period.

The EEOC also published guidance in question and answer form on its Web site to assist employers and workers in understanding the proposed regulations’ provisions.

Employment attorneys had been waiting since the law’s passage last year to see how the EEOC would interpret the new statute. The Commission was originally set to release guidelines by the end of 2008, before the new law took effect, but postponed them.

The ADAAA has been in effect since January without the required accompanying regulatory guidance.

Case-by-case analysis?

The tenor of the proposed regulations wasn’t surprising, said Kurlinski, but the listing of “per se” disabling conditions is somewhat troubling to her.

“They tie an employer’s hands from doing a case-by-case analysis,” she said.

Psychological impairments pose the greatest challenge to employers, she added, because definitions and diagnoses involve a level of subjectivity; the distinction between “major depression” and its other forms isn’t always clear.

She’s also not very happy that the proposed regulations include a phrase she considers too vague: “interacting with others.”

What prompted the ADAAA, according to Halstead, was a U.S. Supreme Court decision, Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). In his view, the case demonstrated “hostility” toward plaintiffs.

Halstead expects the proposed regulations to be tinkered with in the coming month and a half or so, but by and large, doesn’t foresee significant changes.

But Kurlinski suggested some of the examples, “might be styled back a bit or qualified more.”

For example, one example discussing major life activities indicates that a condition need not be long term for it to still qualify as a disability. That’s causing some concern for employers.

Halstead noted that meeting the definition of disability is merely the first step in determining liability.

“If Congress had said that employers have a duty to accommodate that’s broader than before, employers might have a good reason for concern. That’s not what it said.”

Whether an accommodation is reasonable or creates an undue burden or whether an employee poses a direct threat to the safety of others, “that can’t be decided as a matter of law, but will be a case-sensitive inquiry in every case” he said.