28 CFR Parts 35 and 36 Amendment of ADA Title II and Title III Regulations To Implement ADA Amendments Act of 2008 - Final Rule

Sections 35.108(d)(1)(i) and 36.105(d)(1)(i)—Broad Construction, Not a Demanding Standard

In accordance with Congress’s overarching directive to construe the term ‘‘disability’’ broadly, see 42 U.S.C. 12102(4)(A), the Department, in its NPRM, proposed §§ 35.108(d)(1)(i) and 36.105(d)(1)(i), which state: ‘‘The term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.’’ These provisions are also rooted in the Findings and Purposes of the ADA Amendments Act, in which Congress instructed that ‘‘the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.’’ See Public Law 110–325, sec. 2(b)(1), (4)–(5).

Several commenters on these provisions supported the Department’s proposal to include these rules of construction, noting that they were in keeping with both the statutory language and Congress’s intent to broaden the definition of ‘‘disability’’ and restore expansive protection under the ADA. Some of these commenters stated that, even after the passage of the ADA Amendments Act, some covered entities continued to apply a narrow definition of ‘‘disability.’’

Other commenters expressed concerns that the proposed language would undermine congressional intent by weakening the meaning of the word ‘‘substantial.’’ One of these commenters asked the Department to define the term ‘‘substantially limited’’ to include an element of materiality, while other commenters objected to the breadth of these provisions and argued that it would make the pool of people who might claim disabilities too large, allowing those without substantial limitations to be afforded protections under the law. Another commenter expressed concern about the application of the regulatory language to the diagnosis of learning disabilities and ADHD.

The Department considered all of these comments and declines to provide a definition of the term ‘‘substantially limits’’ or make any other changes to these provisions in the final rule. The Department notes that Congress considered and expressly rejected including language defining the term ‘‘substantially limits’’: ‘‘We have 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. 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.’’ 154 Cong. Rec. S8441. (daily ed. Sept. 16, 2008) (Statement of the Managers).

The Department believes that the nine rules of construction interpreting the term ‘‘substantially limits’’ provide ample guidance on determining whether an impairment substantially limits a major life activity and are sufficient to ensure that covered entities will be able to understand and apply Congress’s intentions with respect to the breadth of the definition of ‘‘disability.’’

Moreover, the commenters’ arguments that these provisions would undermine congressional intent are unsupported. To the contrary, Congress clearly intended the ADA Amendments Act to expand coverage: ‘‘The managers have introduced the ADA Amendments Act of 2008 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. It is our expectation that because this bill makes the definition of disability more generous, some people who were not covered before will now be covered.’’ 154 Cong. Rec. S8441 (daily ed. Sept. 16, 2008) (Statement of the Managers).

The Department has also considered the comments expressed about the interplay between the proposed regulatory language and the diagnosis of learning disabilities and ADHD disorders. The Department believes that the revised definition of ‘‘disability,’’ including, in particular, the provisions construing ‘‘substantially limits,’’ strikes the appropriate balance to effectuate Congress’s intent when it passed the ADA Amendments Act, and will not modify its regulatory language in response to these comments.