At the end of January, the U.S. Department of Justice proposed rules implementing Titles II and III of the Americans with Disabilities Act in light of the amendments made to the ADA. (See www.ada.gov/nprm_adaaa/nprm_adaaa.htm.)
The proposed rules are quite involved. Nevertheless, I thought I’d go over some particularly significant items for institutions of higher education.
New major life activities added
What the DOJ essentially did was adopt the Equal Employment Opportunity Commission regulations implementing Title I of the ADA. That includes adding reaching, sitting and interacting with others to the list of major life activities.
In particular, the addition of interacting with others could significantly impact students in college because there are many disabilities that potentially limit the ability of a person to interact with others, such as anxiety, autism, attention deficit hyperactivity disorder, and social anxiety disorder.
Immune, circulatory systems included
With respect to physical and mental impairments, the DOJ is proposing to add the immune and circulatory systems to those that may be affected by such impairments. It’s difficult to say what the impact of this will be on postsecondary institutions. Suffice to say, there are most certainly students in college with compromised immune systems.
LD listed under ‘physical or mental impairment’
Also, the DOJ is proposing to add a reference to dyslexia as an example of a specific learning disability falling within the category of “physical or mental impairment.” The reasoning behind that is that some entities mistakenly believe that dyslexia is not a clinically diagnosable impairment.
For instance, a Feb. 26 article by Ty Tagami in the Atlanta Journal-Constitution noted that some K–12 school systems are refusing to modify their programs and/or offer special services under the Individuals with Disabilities in Education Act on the belief that dyslexia is not a disability. (See www.myajc.com/news/news/local-education/parents-push-for-help-with-dyslexia/ncPLc/. To read the full article, you’ll need a one-day pass to the site.)
Keep in mind, however, that IDEA’s definition of “disability” is not the same as the definition of disability under the ADA and § 504.
The proposed use of the phrase “such as dyslexia” means that there is room for other learning disabilities to fall within the scope of covered conditions. In fact, the DOJ specifically stated that it fully expects compliance costs to go up with respect to making modifications to accommodate students with learning disabilities. Thus, if an institution takes a narrow view of learning disability, such as by excluding dyslexia, it may want to reconsider that approach now.
Fleeting conditions qualify for accommodation
The six-month transitory and minor exception that deals with a person being regarded as having a disability does not apply to the “actual disability” or “record of” prongs of the definition of “disability.” That is, the effects of an impairment expected to last less than six months can be substantially limiting and thus require accommodations like any other qualifying condition.
This also echoes the EEOC and gets behind the recent Fourth Circuit case of Summers v. Altarum Institute, Corporation, 740 F.3d 325 (4th Cir. 2014). I would expect that this particular provision of the proposed regulations would also be a game changer for postsecondary institutions because students frequently injure themselves and over time can recover quite nicely. Yet some of those injuries can be quite serious and limiting.
For more analysis on the Fourth Circuit decision in Summers, check out www.williamgoren.com/blog/2014/02/11/temporary-disabilities-ada.
Regulations would lower bar regarding whether conditions substantially limit major life activities
In determining whether an impairment substantially limits an individual in a major life activity, the DOJ has proposed that:
- The term “substantially limits” must be construed broadly in favor of expansive coverage and is not meant to be a demanding standard. That means that institutions might have to be more careful as to just how much documentation they insist upon to establish a disability. Accordingly, if a student’s IDEA documentation is current or relatively new, you may not want to insist on new and independent documentation. You may also see that testing entities that have traditionally required extensive and precise documentation will have to revisit that practice.
- Any impairment must be considered 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. This is the same view as the one taken by the EEOC in its final regulations implementing the amendments to the ADA. The ADAAA specifically states that it is overruling Toyota Motor, Kentucky v. Williams, 534 U.S. 184 (2002), which held that for a person to be substantially limited in the major life activity of performing manual tasks, he must be severely restricted or prevented from performing that major life activity. Since DOJ frequently adopts EEOC standards, this definition of major life activity contained in the proposed regulations may be something that many institutions are already applying. However, in case they are not, the regulation would mean a significant change from their prior practice.
- The primary object of attention in cases under Title II of the ADA should be whether public entities have complied with their obligations and whether discrimination has occurred. It should not be on the extent to which an individual’s impairment substantially limits a major life activity. Therefore, the issue of whether the impairment substantially limits a major life activity should not demand extensive analysis. Interestingly enough, only Title II gets a mention here and not Title III. What that means is that whether a person has a disability should not be the real issue anymore. Now, the focus will turn to whether institutions have made reasonable modifications to their programs and activities for students with disabilities.
- For a student to be “qualified,” he has to meet the essential eligibility requirements of the program or activity with or without reasonable modifications to the program or activity. So, just what are the essential eligibility requirements of the program or activity will become a critical question. (See the April 2013 issue of Disability Compliance for Higher Education, pp. 4–5, for previous article on essential eligibility requirements.)
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, that assessment shall be interpreted and applied to require a degree of functional limitation lower than the standard that applied prior to the ADA Amendments Act. The comparison of an individual’s performance of the 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 evidence, though such scientific, medical or statistical evidence can be used where appropriate.
- The determination of whether the impairment substantially limits a major life activity has to be made without regard to mitigating measures. The only exception is that ordinary eyeglasses or contact lenses are considered in whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are those that are intended to fully correct visual acuity or to eliminate refractive error. This is a provision actually demanded by the amendments to the ADA. As I point out in my book, Understanding the Americans with Disabilities Act, Fourth Edition (http://apps.americanbar.org/abastore/index.cfm?fm=Product.AddToCart&pid=5150465), the provision makes sense because with the exception of ordinary eyeglasses or contact lenses, everything else that ameliorates a disability doesn’t cure a disability, but rather it just compensates for it. Because this provision is a change demanded by the explicit statutory language of the ADAAA, all institutions should already be complying.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This too is a change demanded by the explicit statutory language of the ADAAA. Thus, it should also not have any impact on the existing practices of institutions of higher education, since they should already be in compliance.
- An impairment that substantially limits a single major life activity need not substantially limit other major life activities to be considered a substantially limiting impairment. This proposed rule states that case law holding otherwise is not correct. For institutions that were following this line of cases, this means re-evaluating that practice. Since this line of cases could be said to be an outlier based upon a reading of the ADA, most institutions were probably not following this line of cases anyway. Therefore, for most institutions, this particular provision should have little or no impact upon them.
I encourage everyone to read the proposed regulations. In many ways, these regulations are expected because it is important for the EEOC and the DOJ to be on the same page. But since the context is different between the DOJ, which has jurisdiction over Titles II and III of the ADA, and the EEOC, which has jurisdiction over Title I of the ADA, they impact situations differently.
Also, while there may be some revisions to these regulations, I don’t expect the final rules to be significantly different.