Appendix to 29 CFR Part 1630—Interpretive Guidance on Title I of the Americans With Disabilities Act

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.