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(f) and 36.105(f)—Is Regarded as Having Such an Impairment

The ‘‘regarded as having such an impairment’’ prong of the definition of ‘‘disability’’ was included in the ADA specifically to protect individuals who might not meet the first two prongs of the definition, but who were subject to adverse decisions by covered entities based upon unfounded concerns, mistaken beliefs, fears, myths, or prejudices about persons with disabilities. See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). The rationale for the ‘‘regarded as’’ part of the definition of ‘‘disability’’ was articulated by the Supreme Court in the context of section 504 of the Rehabilitation Act of 1973 in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). In Arline, the Court noted that, although an individual may have an impairment that does not diminish his or her physical or mental capabilities, it could ‘‘nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.’’ Id. at 283. Thus, individuals seeking the protection of the ADA under the ‘‘regarded as’’ prong only had to show that a covered entity took some action prohibited by the statute because of an actual or perceived impairment. At the time of the Arline decision, there was no requirement that the individual demonstrate that he or she, in fact, had or was perceived to have an impairment that substantially limited a major life activity. See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). For example, if a daycare center refused to admit a child with burn scars because of the presence of the scars, then the daycare center regarded the child as an individual with a disability, regardless of whether the child’s scars substantially limited a major life activity.

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court significantly narrowed the application of this prong, holding that individuals who asserted coverage under the ‘‘regarded as having such an impairment’’ prong had to establish either that the covered entity mistakenly believed that the individual had a physical or mental impairment that substantially limited a major life activity, or that the covered entity mistakenly believed that ‘‘an actual, non-limiting impairment substantially limit[ed]’’ a major life activity, when in fact the impairment was not so limiting. Id. at 489. Congress expressly rejected this standard in the ADA Amendments Act by amending the ADA to clarify that it is sufficient for an individual to establish that the covered entity regarded him or her as having an impairment, regardless of whether the individual actually has the impairment or whether the impairment constitutes a disability under the Act. 42 U.S.C. 12102(3)(A). This amendment restores Congress’s intent to allow individuals to establish coverage under the ‘‘regarded as’’ prong by showing that they were treated adversely because of an actual or perceived impairment without having to establish the covered entity’s beliefs concerning the severity of the impairment. See H.R. Rep. No. 110–730, pt. 2, at 18 (2008).

Thus, under the ADA as amended, it is not necessary, as it was prior to the ADA Amendments Act and following the Supreme Court’s decision in Sutton, 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 be covered under the ‘‘regarded as’’ prong, an individual is not subject to any functional test. See 154 Cong. Rec. S8843 (daily ed. Sept. 16, 2008) (Statement of the Managers) (‘‘The functional limitation imposed by an impairment is irrelevant to the third ‘regarded as’ prong.’’); H.R. Rep. No. 110–730, pt. 2, at 17 (2008) (‘‘[T]he 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.’’

In the NPRM, the Department proposed §§ 35.108(f)(1) and 36.105(f)(1), which are intended to restore the meaning of the ‘‘regarded as’’ prong of the definition of ‘‘disability’’ by adding language that incorporates the amended statutory provision: ‘‘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 physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, except for an impairment that is both transitory and minor.’’

The proposed provisions also incorporate the statutory definition of transitory impairment, stating that a ‘‘transitory impairment is an impairment with an actual or expected duration of six months or less.’’ The ‘‘transitory and minor’’ exception was not in the third prong in the original statutory definition of ‘‘disability.’’ Congress added this exception to address concerns raised by the business community 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.’’ See H.R. Rep. No. 110–730, pt. 2, at 18 (2008). However, as an exception to the general rule for broad coverage under the ‘‘regarded as’’ prong, this limitation on coverage should be construed narrowly. Id. The ADA Amendments Act did not define ‘‘minor.’’

In addition, proposed §§ 35.108(f)(2) and 36.105(f)(2) stated that any time a public entity or covered entity takes a prohibited action because of an individual’s actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action, that individual is ‘‘regarded as’’ having such an impairment. Commenters on these provisions recommended that the Department revise its language to clarify that the determination of whether an impairment is in fact ‘‘transitory and minor’’ is an objective determination and that a covered entity may not defeat ‘‘regarded as’’ coverage of an individual simply by demonstrating that it subjectively believed that the impairment is transitory and minor. In addition, a number of commenters cited the EEOC title I rule at 29 CFR 1630.15(f) and asked the Department to clarify that ‘‘the issue of whether an actual or perceived impairment is ‘transitory and minor’ is an affirmative defense and not part of the plaintiff’s burden of proof.’’ The Department agrees with these commenters and has revised paragraphs (1) and (2) of these sections for clarity, as shown in §§ 35.108(f)(2) and 36.105(f)(2) of the final rule.

The revised language makes clear that the relevant inquiry under these sections is whether the actual or perceived impairment that is the basis of the covered entity’s action is objectively ‘‘transitory and minor,’’ not whether the covered entity claims it subjectively believed the impairment was transitory and minor. For example, a private school that expelled a student whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the student’s impairment was transitory and minor, because bipolar disorder is not objectively transitory and minor. Similarly, a public swimming pool that refused to admit an individual with a skin rash, mistakenly believing the rash to be symptomatic of HIV, will have ‘‘regarded’’ the individual as having a disability. It is not a defense to coverage that the skin rash was objectively transitory and minor because the covered entity took the prohibited action based on a perceived impairment, HIV, that is not transitory and minor.

The revised regulatory text also makes clear that the ‘‘transitory and minor’’ exception to a ‘‘regarded as’’ claim is a defense to a claim of discrimination and not part of an individual’s prima facie case. The Department reiterates that to fall within this exception, the actual or perceived impairment must be both transitory (less than six months in duration) and minor. For example, an individual with a minor back injury could be ‘‘regarded as’’ an individual with a disability if the back impairment lasted or was anticipated to last more than six months. The Department notes that the revised regulatory text is consistent with the EEOC rule which added the transitory and minor exception to its general affirmative defense provision in its title I ADA regulation at 29 CFR 1630.15(f). Finally, in the NPRM, the Department proposed §§ 35.108(f)(3) and 36.105(f)(3) which provided that an individual who is ‘‘regarded as having such an impairment’’ does not establish liability based on that alone. Instead, an individual can establish liability only when an individual proves that a private entity or covered entity discriminated on the basis of disability within the meaning of the ADA. This provision was intended to make it clear that in order to establish liability, an individual must establish coverage as a person with a disability, as well as establish that he or she had been subjected to an action prohibited by the ADA.

The Department received no comments on the language in these paragraphs. Upon consideration, in the final rule, the Department has decided to retain the regulatory text for §§ 35.108(f)(3) and 36.105(f)(3) except that the reference to ‘‘covered entity’’ in the title III regulatory text is changed to ‘‘public accommodation.’’