16978 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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. 

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 nonexhaustive 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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: § 1630.1 (added (c)(3) and 

(4)); § 1630.2(g)(3) (added crossreference to 1630.2(l)); § 1630.2 (h) 

(replaced the term ‘‘mental retardation’’ 

with the term ‘‘intellectual disability’’); 

§ 1630.2(i) (revised definition of ‘‘major 

life activities’’ and provided examples); 

§ 1630.2(j) (revised definition of 

‘‘substantially limits’’ and provided 

examples); § 1630.2(k) (provided 

examples of ‘‘record of’’ a disability); 

§ 1630.2(l) (revised definition of 

‘‘regarded as’’ having a disability and 

provided examples); § 1630.2(m) 

(revised terminology); § 1630.2(o) 

(added (o)(4) stating that reasonable 

accommodations are not available to 

individuals who are only ‘‘regarded as’’ 

individuals with disabilities); § 1630.4 

(renumbered section and added 

§ 1630.4(b) regarding ‘‘claims of no 

disability’’); § 1630.9 (revised 

terminology in § 1630.9(c) and added 

§ 1630.9(e) stating that an individual 

covered only under the ‘‘regarded as’’ 

definition of disability is not entitled to 

reasonable accommodation); § 1630.10 

(revised to add provision on 

qualification standards and tests related 

to uncorrected vision); and § 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 interagency 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. 


erowe on DSK5CLS3C1PROD with RULES_2
16980 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 § 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, § 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 § 1630.2(h) of the 

NPRM was not consistent with the 

description of ‘‘major bodily functions’’ 

in § 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 

§ 1630.2(h), because both are mentioned 

in the definition of ‘‘major bodily 

functions’’ in § 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 

§ 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 § 1630.2(h). In 

response to comments, the Commission 

has also made clear that the list of body 

systems in § 1630.2(h)(1) is nonexhaustive, just as the list of mental 

impairments in § 1630.2(h)(2) has 

always made clear with respect to its 

examples. The Commission has also 

amended the final appendix to 

§ 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 longstanding 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 § 1630.2(j) of the 

final regulations is substantively the 

same as § 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 

§§ 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, § 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 § 1630.2(j)(5) of the NPRM. 

In response to comments (discussed 

below), § 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 § 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 § 1630.2(j)(6), describing 

certain impairments that may or may 

not meet the definition of ‘‘substantially 

limits,’’ and NPRM § 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 § 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 

§ 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. 


erowe on DSK5CLS3C1PROD with RULES_2
16982 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 longstanding 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 § 1630.2(g)(1) or a 

record of a disability under 

§ 1630.2(g)(2). See, e.g., EEOC 

Compliance Manual Section 902, 

‘‘Definition of the Term Disability,’’ 

§ 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 cosponsors 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 nonexhaustive. 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 nonameliorative 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 caseby-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 

§ 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 

§ 1630.2(j)(5). Many of the commenters 

who expressed support for this section 

also asked that NPRM § 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 § (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 § 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 

§ 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 

§ 1630.2(j)(3) of the final regulations all 

the impairments that were the subject of 


erowe on DSK5CLS3C1PROD with RULES_2
16984 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

examples in NPRM § 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 § 1630.2(j)(3) of the final 

regulations. The regulations as written 

permit courts to conclude that any of 

the impairments mentioned in 

§ 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 

§ 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 §§ 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 longheld 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 

§ 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 § 1630.2(l) as well as the 

defense as set forth in § 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 § 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 § 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 


erowe on DSK5CLS3C1PROD with RULES_2
16986 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 § 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 (§ 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 

§ 1630.4 of the final regulations, adding 

a new provision in § 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 § 1630.9(c) to 

conform citations therein to the 

amended ADA. In addition, a new 

§ 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 (§ 1630.2(g)(1)(iii)). In 

addition, the appendix to § 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 

§ 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 

§ 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 §§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 16987 

1The 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. 

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. 

3Prior 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. 

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 interagency 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. 

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. 


erowe on DSK5CLS3C1PROD with RULES_2
16988 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

4The 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. 

5From 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/disabilitystatistics 

faq.cfm. 

(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

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 underinclusive 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 preADAAA 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 noninstitutionalized 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 § 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 noninstitutionalized 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 16989 

6These 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. 

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 worklimitation disabilities would 

consistently meet the definition of 

disability under NPRM § 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 noninstitutionalized 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 § 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 

§ 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

(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 

§ 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 § 1630.2(j)(3)(iii) 

reflects the frequency of those 

impairments among the 8,229,000 noninstitutionalized 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 


erowe on DSK5CLS3C1PROD with RULES_2
16990 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

7We note that this approach was used by one of 

the comments submitted by an employer 

association. 

8See ‘‘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). 

9See ‘‘Who Gets MS?’’ http:// 

www.nationalmssociety.org/about-multiplesclerosis/what-we-know-about-ms/who-gets-ms/ 

index.aspx (last visited Mar. 1, 2011). 

10See ‘‘Answers to Frequently Asked Questions,’’ 

http://www.mda.org/news/ 

080804telethon_basic_info.html (last visited Mar. 1, 

2011). 

11See ‘‘Cancer Prevalence: How Many People 

Have Cancer?’’ http://www.cancer.org/cancer/ 

cancerbasics/cancer-prevalence (last visited Mar. 1, 

2011). 

12See ‘‘2011 National Diabetes Fact Sheet’’ 

(released Jan. 26, 2011), http://www.diabetes.org/ 

diabetes-basics/diabetes-statistics/ (last visited Mar. 

1, 2011). 

13See ‘‘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/. 

14See ‘‘Cerebral Palsy Fact Sheet,’’ http:// 

www.ucp.org/uploads/cp_fact_sheet.pdf (last 

visited Mar. 1, 2011). 

15See ‘‘HIV in the United States,’’ http:// 

www.cdc.gov/hiv/topics/surveillance/resources/ 

factsheets/us_overview.htm (last visited Mar. 1, 

2011). 

16 ‘‘What is Mental Illness: Mental Illness Facts,’’ 

http://www.nami.org/ 

template.cfm?section=About_Mental_Illness (last 

visited Mar. 1, 2011). 

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 § 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 § 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: 

—Autism—Approximately 1.5 million 

individuals in the United States are 

affected by autism.8

—Multiple Sclerosis—Approximately 

400,000 Americans have multiple 

sclerosis according to the National 

Multiple Sclerosis Society.9

—Muscular Dystrophy—Approximately 

250,000 Americans have muscular 

dystrophy according to the Muscular 

Dystrophy Association.10

—Cancer—In 2007, approximately 

11,714,000 individuals were living 

with cancer in the United States.11

—Diabetes—An estimated 18.8 million 

adults in the United States have 

diabetes according to the CDC.12

—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. 

—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

—HIV Infection—The CDC estimates 

that more than 1.1 million Americans 

are living with HIV infection.15

—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

Thus, based on this data, the number 

of individuals with the impairments 

cited in § 1630.2(j)(3(iii) could be at 

least 60 million. In addition, we know 

that people with many other 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 16991 

17Participants 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. 

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 § 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 underinclusive. 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 § 1630.2(j)(3)(iii) will be participating 

in the labor force. 

Using the 60 million figure, if we 

assume 20% of individuals with 

impairments identified in 

§ 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 

§ 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 § 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 


erowe on DSK5CLS3C1PROD with RULES_2
16992 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 16993 

18 Information provided to the EEOC by Beth Loy, 

Ph.D., Job Accommodation Network. 

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. 

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 onetime 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 generallyapplicable 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. 

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

According to JAN, if these two outlier 

accommodations are deleted from the 


erowe on DSK5CLS3C1PROD with RULES_2
16994 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

21 Id. 

22 Id. 

23Occupational Outlook Handbook, 2008–09 

Edition, http://stats.bls.gov/OCO/OCOS021.htm 

(downloaded September 2, 2009). 

24http://www.sba.gov/advo/research/us_06ss.pdf 

(downloaded Sept. 2, 2009). 

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. 

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. 

(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 abovediscussed 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) × $150 = 

$60 million annually 

1.2 million new accommodations 

annually (6.1 million over 5 years) 

× $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. 

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

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 underestimated 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 feebased 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 


erowe on DSK5CLS3C1PROD with RULES_2
16996 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

25Blanck, 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). 

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

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 16997 

Percent 

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 costper-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 


erowe on DSK5CLS3C1PROD with RULES_2
16998 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

26This 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. 

reduces stigma, exclusion, and 

humiliation, and promotes selfrespect. 

—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

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 questionand-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 

■ 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. 

■ 2. Revise § 1630.1 to read as follows: 

§ 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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
17000 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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. 

■ 3. Amend § 1630.2 as follows: 

■ a. Revise paragraphs (g) through (m). 

■ 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’’. 

■ c. In paragraph (o)(3), remove the 

words ‘‘the qualified individual with a 

disability’’ and add, in their place, ‘‘the 

individual with a disability’’. 

■ d. Add paragraph (o)(4). 

The revisions and additions read as 

follows: 

§ 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 § 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. 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 § 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 


erowe on DSK5CLS3C1PROD with RULES_2
17002 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 § 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 § 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 § 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). 

* * * * * 

■ 4. Revise § 1630.4 to read as follows: 

§ 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 §§ 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. 

■ 5. Amend § 1630.9 as follows: 

■ a. Revise paragraph (c). 

■ 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’’. 

■ 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’’. 

■ d. Add paragraph (e). 

The revisions and additions read as 

follows: 

§ 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 

(§ 1630.2(g)(1)(i)), or ‘‘record of’’ prong 

(§ 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 (§ 1630.2(g)(1)(iii)). 

■ 6. Revise § 1630.10 to read as follows: 

§ 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 § 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 17003 

1Claims 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 

Continued 

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. 

■ 7. Amend § 1630.15 by redesignating 

paragraph (f) as paragraph (g), and 

adding new paragraph (f) to read as 

follows: 

§ 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. 

* * * * * 

■ 8. Amend § 1630.16(a) by removing 

from the last sentence the word 

‘‘because’’ and adding, in its place, the 

words ‘‘on the basis’’. 

* * * * * 

■ 9. Amend the Appendix to Part 1630 

as follows: 

■ A. Remove the ‘‘Background.’’ 

■ B. Revise the ‘‘Introduction.’’ 

■ C. Add ‘‘Note on Certain Terminology 

Used’’ after the ‘‘Introduction.’’ 

■ D. Revise § 1630.1. 

■ E. Revise Sections 1630.2(a) through 

(f). 

■ F. Revise § 1630.2(g). 

■ G. Revise § 1630.2(h). 

■ H. Revise § 1630.2(i). 

■ I. Revise § 1630.2(j). 

■ J. Add § 1630.2(j)(1), 1630.2(j)(3), 

1630.2(j)(4), and 1630.2(j)(5) and (6). 

■ K. Revise § 1630.2(k). 

■ L. Revise § 1630.2(l). 

■ M. Amend § 1630.2(m) by revising the 

heading and first sentence. 

■ N. Amend § 1630.2(o) as follows: 

■ i. Remove the first paragraph and add, 

in its place, three new paragraphs. 

■ ii. Remove the words ‘‘a qualified 

individual with a disability’’ wherever 

they appear and add, in their place, ‘‘an 

individual with a disability’’. 

■ iii. Remove the words ‘‘the qualified 

individual with a disability’’ wherever 

they appear and add, in their place, ‘‘the 

individual with a disability’’. 

■ O. Revise § 1630.4. 

■ P. Amend § 1630.5 by revising the 

first paragraph. 

■ Q. Amend § 1630.9 as follows: 

■ i. Remove the words ‘‘a qualified 

individual with a disability’’ wherever 

they appear and add, in their place, ‘‘the 

individual with a disability’’. 

■ ii. Remove the words ‘‘the qualified 

individual with a disability’’ wherever 

they appear and add, in their place, ‘‘the 

individual with a disability’’. 

■ iii. Add new § 1630.9(e) after existing 

§ 1630.9(d). 

■ R. Revise § 1630.10. 

■ S. Amend § 1630.15 by adding new 

§ 1630.15(f) after existing § 1630.15(e). 

■ T. Amend § 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’’. 

■ U. Amend § 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 disabilitybased 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 antidiscrimination provisions of the ADA 

generally must allege and prove that they are 

members of the ‘‘protected class.’’ 1 Under the 


erowe on DSK5CLS3C1PROD with RULES_2
17004 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

whom the applicant or employee is known to have 

a relationship or association. See 42 U.S.C. 

12112(b)(4). 

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. 

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 

§ 1630.2(b). The ADA defines ‘‘covered 

entities’’ to mean an employer, employment 

agency, labor organization, or joint labormanagement 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 


erowe on DSK5CLS3C1PROD with RULES_2
17006 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 

§ 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 § 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, 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 nonexhaustive. 

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 nonexhaustive, 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 nowsuperseded 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 

§ 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 

§ 1630.2(i)(1)(ii). The Commission has added 

these examples to further illustrate the nonexhaustive 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 


erowe on DSK5CLS3C1PROD with RULES_2
17008 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

‘‘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.’’ 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 

qualified.’ ’ ’’ 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 preADAAA 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 


erowe on DSK5CLS3C1PROD with RULES_2
17010 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 selfaccommodations 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 nonexhaustive. 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 nonameliorative 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 § 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 caseby-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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 HoyerSensenbrenner 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. DartmouthHitchock 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 § 1630.2(g)(1)(i) or 

§ 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 sixmonth ‘transitory’ part of the ‘transitory and 

minor’ exception to ‘regarded as’ coverage in 

§ 1630.2(l) does not apply to the definition of 

‘disability’ under § 1630.2(g)(1)(i) or 

§ 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 HoyerSensenbrenner 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 


erowe on DSK5CLS3C1PROD with RULES_2
17012 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

Amendments Act and flows from application 

of the rules of construction set forth in 

§§ 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 § 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 underproduce 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 ‘‘nonameliorative 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 17013 

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). 

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. 

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 § 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 threepart 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 § 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

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

Demonstrating a substantial limitation in 

performing the unique aspects of a single 

specific job is not sufficient to establish that 


erowe on DSK5CLS3C1PROD with RULES_2
17014 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

4 480 U.S. at 282–83. 

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 jobrelated 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 § 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); § 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. 

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 HoyerSensenbrenner 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 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 § 1630.2(l)(2) and § 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 


erowe on DSK5CLS3C1PROD with RULES_2
17016 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 

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 § 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 § 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 § 1630.2(l); Appendix to 

§ 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 

* * * * * 

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Rules and Regulations 17017 

disability even if the employer subjectively 

believes that the employee’s disorder is 

transitory and minor. 

* * * * * 

[FR Doc. 2011–6056 Filed 3–24–11; 8:45 am] 

BILLING CODE P 


erowe on DSK5CLS3C1PROD with RULES_2