ADAAA Final Regulations: A Year of Judicial Review Considerations for Plaintiffs' Counsel in ADA Cases in Light of the Amendments Act and Regulations Jennifer Mathis Deputy Legal Director Judge David L. Bazelon Center for Mental Health Law Washington DC March 2012 The ADA Amendments Act (ADAAA) became effective on January 1, 2009. As courts generally found that the new law did not apply retroactively to conduct occurring before January 1, 2009, it was not until the past year or so that we began to see a significant number of judicial decisions applying the new law. Last year, the EEOC promulgated implementing regulations that took effect on May 24, 2011, and courts have begun to apply these regulations. In light of the new law and regulations, as well as judicial interpretations, there are a number of new considerations for plaintiffs' counsel to take into account in accepting new clients and pursuing ADA employment discrimination claims. Following is a summary of key considerations for plaintiffs' lawyers. 1. Coverage should not be the subject of extensive litigation in most cases now. While proving that an individual had a disability was once a primary concern of plaintiffs' counsel, this hurdle is now significantly easier. While plaintiffs' lawyers should still pay close attention to the issue of coverage, this issue no longer has the type of primacy that it once did in ADA employment cases. In addition, a tremendous number of individuals who would not likely have been covered using the standards applied by courts prior to the ADAAA are now clearly covered under the ADAAA. Accordingly, plaintiffs' lawyers should be able to accept many more ADA clients due to the less stringent requirements for showing disability under the new law. The burden of showing coverage should be particularly easy for individuals with the impairments listed in 29 C.F.R. 1630.2(j)(3)(iii). 1 The EEOC, charged with enforcing Title I of the ADA, has determined that, applying the principles set forth in the ADAAA and the EEOC's regulations, the analysis of whether these impairments are disabilities will have predictable results and in virtually all cases, these impairments will be found to substantially limit a major life activity. 2 Such predictable results are possible now that impairments are to be considered in their active state, without regard to the ameliorative effects of mitigating measures, and now that limitations on major bodily functions may be considered. 1 These impairments are deafness, blindness, intellectual disabilities, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.. 2 29 C.F.R. 1630.2(j)(3)(ii), (iii). 1
Consistent with the EEOC's analysis in Section 1630.2(j)(3)(iii), courts applying the ADAAA have routinely denied motions to dismiss and motions for summary judgment contending that impairments listed in that section are not disabilities. 3 See, e.g., Norton v. Assisted Living Concepts, Inc., 786 F. Supp.2d 1173, 1185-86 & n.6 (E.D. Tex. 2011) ("The court finds that renal cancer, when active, 'substantially limits' the 'major life activity' of 'normal cell growth'" even if it is in remission; cancer at any stage substantially limits normal cell growth); Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp.2d 976, 984-86 (N.D. Ind. 2010) (denying employer's summary judgment motion where plaintiff had stage III renal carcinoma that was in remission; cancer substantially limited normal cell growth); Horgan v. Simmons, 704 F.Supp.2d 814, 819 (N.D. Ill. 2010) (denying motion to dismiss; plausible that plaintiff's HIV positive status substantially limited immune function). 4 While ADA plaintiffs with diabetes and epilepsy faced aggressive challenges to coverage in most pre-adaaa cases, such challenges are extremely rare in the post-adaaa world. The ADAAA and the new regulations make it far simpler to demonstrate coverage for many impairments beyond those listed in Section 1630.2(j)(3)(iii). For example, impairments that were frequently determined not to be disabilities pre-adaaa because of their episodic nature are now routinely found to be disabilities. The ADAAA provides that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. 42 U.S.C. 12102(4)(D). "This provision is intended to reject the reasoning of court decisions 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." 29 C.F.R. Part 1630 App. 1630(j)(1)(vii). This provision's significance in changing outcomes has been highlighted by a number of courts. See, e.g., Kinney v. Century Servs. Corp. II, 2011 WL 3476569, *10 (S.D. Ind. Aug. 9, 2011) (denying summary judgment and declining to follow prior Seventh Circuit precedent that "isolated bouts" of depression are not disabilities; ADAAA and EEOC regulations rejected such reasoning); Estate of Murray v. UHS of Fairmount, Inc., 2011 WL 5449364, *5-8 (E.D. Pa. Nov. 10, 2011) (citing new rule concerning episodic impairments as well as rejection of requirement that impairments be permanent or long-term, and denying summary judgment against plaintiff with chronic depression); Medvic v. Compass Sign Co., 2011 WL 3513499, *6-7 (E.D. Pa. Aug. 10, 2011) (denying summary judgment and concluding that a jury could find that plaintiff's 3 As it is still early in the life of the ADAAA, few post-trial decisions have been issued and most decisions are on motions to dismiss or for summary judgment. 4 One court granted a motion to dismiss an ADA claim brought by a person who alleged that she was fatigued due to cancer treatment and was not supposed to lift objects. Brandon v. O'Mara, 2011 WL 4478492 (S.D.N.Y. Sept. 28, 2011). This decision was not based on a determination that cancer did not substantially limit a major life activity, but rather on the pro se plaintiff's failure to allege anything more than the aforementioned facts, making it "virtually impossible to determine whether Brandon's impairment limited her ability to lift objects 'as compared to most people in the general population.'" Id. at *7. 2
stutter substantially limits his ability to communicate when active; court's analysis "has been altered by the 2008 ADA Amendments Act..., which rejected the 'permanent' and 'long term' requirement embodied in the original Act and stated that 'episodic or in remission fits within the definition of disability if it would substantially limit when active'"). Finally, individuals with impairments that were routinely found not sufficiently severe to be disabilities pre-adaaa, particularly when mitigated, are now able to establish coverage -- or proceed past summary judgment on coverage -- under the ADAAA. See, e.g., Markham v. Boeing Co., 2011 WL 6217117 (D. Kan. Dec. 14, 2011) (denying summary judgment on coverage where plaintiff had monocular vision); Gibbs v. ADS Alliance Data Systems, Inc., 2011 WL 3205779 (D. Kan. July 28, 2011) (denying summary judgment where plaintiff had surgery due to carpal tunnel syndrome); Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010) (denying motion to dismiss on coverage where plaintiff had severe obesity); EEOC v. Resources for Human Dev., Inc., 2011 WL 6091560 (E.D. La. Dec. 7, 2011) (denying summary judgment where plaintiff had severe obesity; plaintiff is not required to show that her obesity had a physiological basis). 2. For many impairments, focusing on major bodily functions rather than more traditional major life activities will mean a simpler coverage analysis. The ADAAA's clarification that major life activities include major bodily functions (such as endocrine function, neurological function, immune function, and brain function) simplifies the coverage analysis for many types of impairments. Congress intended this provision to expand coverage and correct the absurd result that individuals with significant impairments, such as cancer and liver disease, were found not disabled when their daily activities were not affected. The EEOC's interpretive guidance notes: 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-yearold 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 3
would qualify them for protection under the ADA. 2008 House Education and Labor Committee Report at 12. 29 C.F.R. Part 1630, App. 1630.2(i) (Major Life Activities). For many impairments, showing how they limit major bodily functions may be more straightforward than showing how they limit other life activities. For example, since diabetes substantially limits endocrine function in virtually all cases, see 29 C.F.R. 1630.2(j)(3)(iii), showing that it substantially limits endocrine function will generally be less involved than showing that it substantially limits a particular person in eating, sleeping, or other daily activities. Similarly, showing that cancer substantially limits normal cell growth will generally be less involved than showing that it substantially limits a person in daily activities. Indeed, for most of the impairments listed in Section 1630.2(j)(3)(iii), the EEOC has pointed to a major bodily function that will be substantially limited in virtually all cases. In addition, focusing on bodily functions rather than daily activities will often be less invasive of a person's privacy. For example, showing that HIV infection substantially limits a person's immune function will generally be far less intrusive than having to show that it substantially limits the person in reproduction -- a showing that frequently invited extensive discovery into plaintiffs' personal lives and sexual activities in pre-adaaa cases. The EEOC's interpretive guidance makes clear that a major bodily function can include the operations of a single organ, such as the kidney, liver or pancreas. 29 C.F.R. Part 1630 App. 1630.2(i) (Major Life Activities). Thus, a person who has pancreatitis need only show a substantial limitation in pancreatic function, rather than a substantial limitation in the function of the endocrine system (although both could undoubtedly be readily shown). 3. For claims that do not involve accommodations, consider using the "regarded as" prong. Showing coverage under the "regarded as" prong is now significantly easier than it was under pre-adaaa standards. In fact, it should also be simpler than showing coverage under the "actual" or "record of" prong because it does not require plaintiffs to show a substantial limitation in a major life activity. Whether an impairment substantially limits a major life activity is irrelevant to coverage under the "regarded as" prong. 29 C.F.R. 1630.2(j)(2). Before the ADAAA, plaintiffs proceeding under the "regarded as" prong typically had to prove what was in an employer's head -- that is, that the employer believed that the person was substantially limited in a major life activity. The ADAAA eliminated this requirement. Instead, a plaintiff need only show that the employer took a prohibited action because of an impairment that the plaintiff had or was perceived to have. 42 U.S.C. 12102(3)(A). The actual or perceived impairment cannot be one that is both transitory (lasting six months or less) and minor. Id. 12102(3)(B). Gaus v. Norfolk Southern Ry. Co., 2011 WL 4527359 (W.D. Pa. Sept. 28, 2011), highlights the dramatic difference between pre- and post-adaaa "regarded as" coverage. The 4
court analyzed whether the employer regarded an employee as disabled when it refused to permit the employee to return to his job as an electrician based on his chronic pain. The period during which the electrician was barred from returning to work began before the effective date of the ADAAA and ended after the effective date, so the court analyzed the ADA claim under both preand post-adaaa law. For the time prior to January 1, 2009, the court applied pre-adaaa law and found no evidence that the employer believed that the plaintiff was substantially limited in working. Id. at *12-16. In contrast, for the period after that date, the court applied the new "regarded as" prong and had little difficulty concluding that the employer barred the plaintiff from returning based on his impairment -- chronic pain -- and that the employer did not show that the pain was both transitory and minor. Id. at *16-20. The court granted summary judgment to the employer with respect to the pre-adaaa period but not the post-adaaa period. No Accommodations Available Individuals seeking accommodations cannot proceed under the "regarded as" prong. People covered solely under the "regarded as" prong are not entitled to reasonable accommodations. 42 U.S.C. 12201(h). If a plaintiff does not need accommodations, however, he or she should consider using the "regarded as" prong because of its simplicity. As the EEOC emphasized in its regulations, "[w]here 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." 29 C.F.R. 1630.2(g)(3). Plaintiffs' lawyers should be careful, however, to anticipate whether reasonable accommodation could become an issue down the road. Sometimes it will not be clear at the outset of a case that accommodations will be relevant. The plaintiff may bring a claim that does not seek accommodations, but the employer may raise a defense that causes the plaintiff to invoke the reasonable accommodation mandate. For example, if the plaintiff's claim is that he was terminated due to his epilepsy and the employer raises a defense that the plaintiff's epilepsy posed a direct threat to the safety of others, the plaintiff may wish to argue that even if he did pose a direct threat, the employer had a duty to make reasonable accommodations to alleviate that threat. Accordingly, plaintiffs' lawyers should consider at the outset whether accommodations may become relevant at any point in the case. Plaintiffs may always proceed under both the "actual disability" and "regarded as" prongs (as well as the "record of" prong). 5 Defenses Not Relevant to "Regarded As" Coverage Demonstrating that an employer took an action because of an actual or perceived impairment is part of showing "regarded as" coverage. This analysis does not permit the consideration of defenses for the purpose of deciding coverage, however (other than the defense 5 The EEOC regulations also make clear that a person may establish coverage under any one or all of the prongs of the definition of disability. 29 C.F.R. 1630.2(g)(2). 5
that the impairment is "transitory and minor."). Defenses are only relevant to liability and not to coverage under the "regarded as" prong. 29 C.F.R. 1630.2(l)(2), (l)(3). "Transitory and Minor" Defense The "transitory and minor" exception to "regarded as" coverage is to be construed narrowly. 29 C.F.R. Part 1630, App. 1630.2(l) (Regarded As Substantially Limited in a Major Life Activity) (citing House Judiciary Report). The EEOC regulations make clear that whether the impairment a person has, or is perceived to have, is "transitory and minor" must be determined objectively, and not based on the employer's subjective perceptions. 29 C.F.R. 1630.15(f). The EEOC's interpretive guidance provides an example of an employer who terminates an employee whom it believes has bipolar disorder; the guidance explains that the employer cannot take advantage of the exception by claiming that it believed the employee's impairment was transitory and minor, since bipolar disorder is not transitory and minor. Id. Part 1630, App. 1630.2(l). See, e.g., Gaus, at *17 (employer presented no evidence that Gaus's chronic pain condition was objectively transitory and minor). The "transitory and minor" exception is an affirmative defense and the employer bears the burden of proving that the actual or perceived impairment is transitory and minor. 29 C.F.R. 1630.15. See, e.g., Davis v New York City Dep't of Educ., 2012 WL 139255, *6 (E.D.N.Y. Jan. 18, 2012) (denying motion to dismiss; "Although plaintiff's three-month period of disability appears to be transitory, it is not apparent from the face of the Complaint that plaintiff's impairment was minor. ); Dube v. Texas Health & Hum. Servs. Comm'n, 2011 WL 3902762, *5 (W.D. Tex. Sept. 6, 2011) (denying motion to dismiss; "Because this is a defense to the claim, it would be appropriate to dismiss under Rule 12(b)(6) only if the defense is apparent from the face of the complaint"). Given the straightforward nature of "regarded as" coverage under the ADAAA, and the narrow scope of the "transitory and minor" defense, this coverage avenue deserves serious consideration by plaintiffs' lawyers. 4. Short-term disabilities may be covered. Plaintiffs' counsel should be aware that the ADAAA and the new regulations clarify that short-term impairments may be disabilities. Before the ADAAA, a number of courts had interpreted the ADA to cover only impairments that are permanent or long-term. In passing the ADAAA, however, Congress included a "transitory and minor" exception for the "regarded as" prong, but did not apply this exception to the "actual" or "record of" prongs. The EEOC's regulations explain that the "transitory" part of this exception does not apply to the "actual" and "record of" prongs, and that the "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting...." 29 C.F.R. 1630.2(j)(1)(ix). In addition, even under the EEOC's original regulations, the duration of an impairment was only one factor in determining whether it was a disability, and impairments of short duration could be disabilities. As the EEOC noted in the preamble to the ADAAA regulations: 6
... 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. 76 Fed. Reg. 16982 (Mar. 25, 2011). See also Estate of Murray v. UHS of Fairmount, Inc., 2011 WL 5449364, *6 (ED Pa Nov. 10, 2011) (EEOC's "updated regulations bring into question the continuing vitality of the 'permanent or long term impact' factor laid out by the Third Circuit in Emory [v. AstraZeneca Pharms. LP, 401 F.3d 174, 179 80 (3d Cir.2005)]."); Medvic v. Compass Sign Co., 2011 WL 3513499, *6-7 (E.D. Pa. Aug. 10, 2011) (denying summary judgment and concluding that a jury could find that plaintiff's stutter substantially limits his ability to communicate when active; court's analysis "has been altered by the 2008 ADA Amendments Act..., which rejected the 'permanent' and 'long term' requirement embodied in the original Act and stated that 'episodic or in remission fits within the definition of disability if it would substantially limit when active'"). 5. While the standards for showing coverage are much easier to meet, plaintiffs must still be careful to adequately plead and prove that they meet the definition of disability. While the ADAAA has made it far simpler to demonstrate a disability covered by the ADA, plaintiffs' lawyers must take care to plead the elements of a disability and to present sufficient evidence of a covered disability. Even with the broad coverage and lower standards of the ADAAA, courts have occasionally dismissed claims under the ADAAA due to insufficient pleading. See, e.g., Aguirre v. W.L. Flowers Machine & Welding Co., Inc., 2011 WL 2672348, *2-3 (S.D. Tex. July 7, 2011) (complaint allegations that plaintiff had a medical condition that prevented him from working more than 45 hours per week, without more, were insufficient to state an ADA claim; plaintiff directed to file an amended complaint); Broderick v. Research Foundation of State Univ. of New York, 2010 WL 3173832, *2 (E.D.N.Y. Aug. 11, 2010) (conclusory allegation in complaint that plaintiff was disabled due to unspecified hip and lower back injury, without any further explanation, was insufficient; ADA claims dismissed with leave to replead). Similarly, courts have required sufficient evidence to demonstrate a disability at later stages of cases. See, e.g., Gesegnet v. J.B. Hunt Transport, Inc., 2011 WL 2119248, *4 (W.D. Ky. May 26, 2011) (finding plantiff's evidence of disability lacking where it consisted of plaintiff's affidavit that was "mostly devoid of specific examples of major life impairments and mostly contains conclusory generalizations about his inability to perform basic functions;" court nonetheless assumed that plaintiff had a disability given the broad definition of the ADAAA). The EEOC's regulations clarify that the determination of whether an impairment substantially limits a major life activity in comparison to most people's ability to perform that major life activity "usually will not require scientific, medical, or statistical analysis." 29 C.F.R. 7
1630.2(j)(1)(v). In general, a person's own testimony describing the effects of his or her impairment should be an adequate source of evidence. See, e.g., Carbaugh v. Unisoft International, Inc., 2011 WL 5553724, *6-8 (S.D. Tex. Nov. 15, 2011) (plaintiff's own description of his multiple sclerosis symptoms was sufficient to overcome summary judgment); Estate of Murray, *5-8 (plaintiff's own testimony concerning her depression was sufficient to overcome summary judgment). Nonetheless, particularly while the law is developing in this area post-adaaa, plaintiffs' lawyers should proceed with an abundance of caution and should include evidence from treatment professionals whenever possible. 6. Substantially Limited in Working: A Word of Caution The ADAAA made it easier to demonstrate a substantial limitation in a major life activity, including the major life activity of working. 29 C.F.R. Part 1630, App. 1630.2(j) (Substantially Limits). Plaintiffs counsel should use this avenue only in limited circumstances, however. The EEOC s ADAAA regulations set forth a simpler approach to showing a substantial limitation in working than that contained in its pre-adaaa regulations. Consistent with Congress's intent to reduce the intense scrutiny of whether an impairment is a disability, the EEOC's implementing regulations eliminated the regulatory provisions concerning the major life activity of working, as no other major life activity received such special attention in the regulations. The EEOC included a more straightforward and streamlined discussion of working in its interpretive guidance. The guidance explains that plaintiffs will only need to rely on the major life activity of working in very targeted situations. The EEOC guidance retains the framework that an individual is substantially limited in working when he or she is substantially limited in performing a class of jobs or a broad range of jobs. The guidance clarifies that this test must be applied in a more straightforward manner than applied by the courts pre-adaaa, and using a lower standard. Id. 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 job-related 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)." Id. As the EEOC has emphasized, it will rarely be necessary for plaintiffs to rely on the major life activity of working to establish coverage. "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." 29 C.F.R. Part 1630, App. 1630.2(j) (Substantially Limits). This is particularly true in light of the changes made by the ADAAA. In addition, many impairments that courts previously analyzed to determine if they substantially limited working would now be analyzed under the "regarded as" prong. Id. 8
While the ADAAA has lowered the burden of demonstrating a substantial limitation in working, it will typically still be easier for most plaintiffs to show a substantial limitation in another major life activity, or to show coverage under the regarded as prong, than to show that they are substantially limited in a class or broad range of jobs. In the rare case where showing a substantial limitation in working is the most viable means of showing coverage, focusing on a class of jobs will generally be simpler than focusing on a broad range of jobs. In any event, plaintiffs' counsel should proceed with great caution and rely on working only in the limited circumstances where it appears necessary to do so. 9