SHRM Urges Changes to Proposed ADA Regulations

By Steve Bates Dec 1, 2009

The Society for Human Resource Management (SHRM) is asking the U.S. Equal Employment Opportunity Commission (EEOC) to revise proposed regulations that appear to broaden the definition of “disability” under federal anti-discrimination law.

While noting SHRM’s strong support for laws and rules that protect the employment-related rights of persons with disabilities, the Society’s comments say that the EEOC’s proposed regulations go beyond the statutory authority granted by Congress.

For about two decades after the Americans with Disabilities Act (ADA) was passed, a series of U.S. Supreme Court decisions narrowed the scope of the law’s definition of disability, and various organizations worked to restore the law to its original intent. The ADA protects qualified individuals with impairments that substantially limit a major life activity from unlawful discrimination.

SHRM—which in November 2009 signed an agreement with the U.S. Department of Labor’s Office of Disability Employment Policy to extend an alliance that helps people with disabilities find meaningful employment—was among organizations working to develop a compromise in ADA changes. The result was the ADA Amendments Act (ADAAA) of 2008.

In a party-line vote on June 17, 2009, the EEOC voted to amend the ADA Title I regulations to include the ADAAA’s new definition of “disability.” In revising the regulations to reflect the ADAAA, SHRM says, the EEOC made changes beyond those specifically requested by Congress and included a new section listing certain impairments that should be presumed to be protected under the anti-discrimination law without an individual analysis—something that has always been required under law.

In addition, the proposed regulations would make a number of changes to incorporate the ADAAA’s definition of disability, including adding the examples of major life activities listed in the law, such as walking, seeing, hearing, speaking, standing, thinking and concentrating. The regulations would add three more: bending, reading and communicating. Also, the regulations would add to the list of bodily functions considered to be major life activities. And they would relax the definition of “substantially limits” as applied to life activities.

'Duration, Condition and Manner'

SHRM’s comments to the EEOC, prepared on SHRM’s behalf by Seyfarth Shaw LLP and sent to the EEOC on Nov. 23, 2009, note that the proposed regulations “remove any reference to the factors of condition, duration and manner in assessing whether an impairment ‘substantially limits’ a major life activity.” SHRM recommends that the EEOC change the rules “to specify that an impairment’s ‘duration, condition and manner’ must be considered in determining whether the impairment is substantially limiting.”

The comments argue that the proposed regulations create “a list of per se disabilities” and thereby discard “the individualized, functional assessment championed by the drafters of the (proposed ADA) Rehabilitation Act (of 2007), the ADA, and the ADAAA. … There is absolutely no reason to think Congress intended to discard that functional analysis and start afresh.”

The SHRM comments continue: “The notion of per se disabilities is also an affront to Congress’s intent in enacting the ADA of 1990. … Congress expressly repudiated the per se approach in 1990.”

SHRM says it recognizes that the ADAAA mandated a wider basis for coverage under anti-discrimination law. “However, SHRM respectfully submits that the inclusion and wording of EEOC’s proposed examples exceed what Congress intended under ADAAA. Any list of impairments departs from the ADA’s original scheme, whereby a determination of disability must be made under an individualized, case-by-case approach.”

If the proposed rules take effect, SHRM warns, “it would be very risky for employers not to deem individuals with any of these impairments as having a disability.” This could lead to employer decisions based “on fear of litigation.”

The regulatory definition of “working” as a major life activity is also problematic, SHRM says. The EEOC’s proposed redefinition of working was made even though “nothing in ADAAA’s legislative history suggests that the current regulatory definition needs revising.”

During October and November 2009, the EEOC held four listening sessions around the country to collect information and feedback from the public on the proposed regulations. EEOC officials say that the town-hall-style sessions were part of a series of national initiatives by the Obama administration to ensure fair and equal access to employment for all Americans. The sessions were held in Philadelphia, Chicago, New Orleans and Oakland, Calif.

Steve Bates is SHRM’s manager of online editorial content. He can be reached at

Related articles:

EEOC’s Proposed ADA Rule Would List Presumptive Disabilities, SHRM Legal Issues, June 17, 2009

President Bush Signs ADA Amendments Bill, HR News, Sept. 25, 2008


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