[nfbwatlk] GCDE's Comments on the Proposed ADA Ameendments Act Rules

[Nightingale, Noel]

For those of you who are policy or law buffs, I thought you might find of interest the comments about the EEOC's proposed ADA regulation from the Governor's Committee on Employment of People with Disabilities.



-----Original Message-----
From: Olson, Toby [mailto:TOlson2 at ESD.WA.GOV]
Sent: Wednesday, November 25, 2009 11:54 AM
To: GCDE-INFO at LISTSERV.WA.GOV
Subject: GCDE's Comments on the Proposed ADA Ameendments Act Rules





November 23, 2009





Stephen Llewellyn

Executive Officer

Executive Secretariat

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 4NW08R, Room 6NE03F

Washington,D.C. 20507



RE:       Notice of Proposed Rulemaking

            ADA Amendments Act of 2008 Regulations



Dear Mr. Llewellyn:



Thank you for this opportunity to comment on the Commission's Notice of
Proposed Rulemaking on the ADA Amendments Act.



PRELIMINARY REGULATORY IMPACT ANALYSIS:  In general, we support the
Commission's preliminary analysis of the impact of the proposed rule, and
agree with the conclusion that it is very unlikely that the impact of this
regulation would approach the $100 million economically significant
threshold.  The Commission's analysis does a very good job of describing the
limitations of the available data and exploring the probable range of the
costs associated with the proposed rule derived through the application of
those data.  However, the analysis is incomplete in that it does not attempt
to provide a comparable range for the economic impact of the offsetting
benefits that are likely to result from the proposed regulation.

Some of the same sources cited by the Commission in its attempt to project
the number and costs of any increase in reasonable accommodations provided
by employers as a result of the proposed rule also document the benefits
that accrue to employers as a result of providing reasonable accommodations.
The common direct benefits to employers that these studies have documented
include: retention of valued employees, saving the costs associated with
recruiting, selecting and training replacements; improvements in that
employee's productivity, and in overall company productivity; improvements
in




Mr. Llewellyn

November 23, 2009

Page Two



attendance rates; and savings in worker's compensation and other insurance
costs. The JAN Report Workplace Accommodations: Low Cost, High Impact
(09/01/09), draws on 1,548 interviews with employers conducted between
January 2004 and July 2009 and reports that "[t]he study results
consistently showed that the benefits employers receive from making
workplace accommodations far outweigh the low costs."  Those benefits as
well as the costs must be accounted for if the Commission hopes to offer an
accurate analysis of the economic impact of its proposed rule.

Employers stand to gain an additional direct benefit from the proposed rule
in that the average difficulty and expense of litigation, even when the
employer wins on summary judgment, is many times greater than the average
difficulty and expense of providing a reasonable accommodation. Each time an
employer who would have litigated a reasonable accommodation request under
the current rule, chooses, under the proposed rule, to provide an
accommodation instead, that employer will have obtained a very substantial
cost avoidance.

Similarly, the preliminary analysis of administrative costs should also
examine the administrative benefits resulting from the new rule.  While
employers that have modeled their policies and procedures on the court
decisions that the ADA Amendments Act has overturned will need to revise
them, the revisions will have the result of simplifying and streamlining
those policies and procedures.  The one time costs associated with making
and implementing those revisions will be more than offset by the very
significant time savings that will be achieved through the new simplified
procedures.  An employer attempting to model its procedures on the pre ADA
Amendments Act rules and court decisions would find itself repeatedly
engaged in extensive and protracted fact-finding to attempt to obtain a wide
range of detailed information, followed by equally complicated attempts at
analysis of the significance of factors ranging from the details of how an
employee performs personal hygiene tasks to such things as; the geographical
area to which that individual has reasonable access; the number and type of
jobs utilizing similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified because of
the impairment; and the number and types of other jobs not utilizing similar
training, knowledge, skills or abilities, within that geographical area,
from which the individual is also disqualified because of the impairment. By
providing direction to employers on how to determine disability quickly and
with little analysis, the proposed rule will result in very substantial time
savings for any employer that has been following procedures based on the
current rule and pre ADA amendments Act court decisions.

Finally, the preliminary analysis ignores the obvious and very substantial
benefits to people with disabilities and their families.  For example, since
the new rule will only require an additional instance of reasonable
accommodation when the lack of the





Mr. Llewellyn

November 23, 2009

Page Three



accommodation would deny a person with a disability an equal employment
opportunity, and the accommodation would be effective in affording that
equal employment opportunity, there should be a very high correlation
between any additional reasonable accommodations required by the new rule
and additional instances of people with disabilities being able to obtain or
retain employment.  Similarly, any reduction in instances of discrimination
based on disability, or improvement in access to redress for such acts, is a
benefit worthy of recognition and consideration when assessing the impact of
the proposed rule.



SUBSTANTIAL LIMITATION IN THE MAJOR LIFE ACTIVITY OF WORKING: We strongly
support the proposed rule on substantial limitation in the major life
activity of working clarifying that:
"(ii) An impairment substantially limits the major life activity of working
if it substantially limits an individual's ability to perform, or to meet
the qualifications for, the type of work at issue. Whether an impairment
substantially limits the major life activity of working must be construed
broadly to the maximum extent permitted under the ADA and should not demand
extensive analysis.
    (iii) Type of Work
    (A) The type of work at issue includes the job the individual has been
performing, or for which the individual is applying, and jobs with similar
qualifications or job-related requirements which the individual would be
substantially limited in performing because of the impairment.
    (B) The type of work at issue may often be determined by reference to
the nature of the work an individual is substantially limited in performing
because of an impairment as compared to most people having comparable
training, skills, and abilities:.
(iv) Evidence of Ability to Obtain Employment Elsewhere. The fact that an
individual has obtained employment elsewhere is not dispositive of whether
an individual is substantially limited in working."

for the following reasons.



1) The proposed rule is necessary in order to achieve the intent of
Congress.



S. 3406 Section 2. (b) (5) declares  "it is the intent of Congress that the
primary object of attention in cases brought under the ADA should be whether
entities covered under the ADA have complied with their obligations, and to
convey that the question of whether an individual's impairment is a
disability under the ADA should not demand extensive analysis."



The Commission's current rule regarding substantial limitation in working
demands very extensive and complicated analysis encompassing a wide range of
diverse variables. Each of the several factors required to be considered
under the existing rule demands a separate analysis in order to determine
such things as: what constitutes the appropriate class of jobs or broad
range of jobs for that individual; does that person's impairment cause her
or him to be significantly restricted in that range or class of jobs; what
is the geographical area to which that individual has reasonable access;
what are the number and type of jobs



Mr. Llewellyn

November 23, 2009

Page Four

 utilizing similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified because of
the impairment; and what are the number and types of other jobs not
utilizing similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified because of
the impairment. The analysis for each of these elements requires extensive
research to gather and evaluate data that would not be readily available to
or commonly used by employers or workers with disabilities, and each is an
open invitation to conflict regarding the conclusions drawn by either party.
The current rule sets both the standard for substantial limitation in
working and the scope and complexity of the analysis required to demonstrate
that standard so excessively high as to be nearly unobtainable. Its
retention would clearly frustrate congressional intent as cited above.

The proposed rule on substantial limitation in working resolves these
problems. By giving the analysis a focus on the individual's impairment
related to the type of work at issue, the proposed rule would make it
possible for the employer and the individual to reach their conclusions
about whether the individual is substantially limited in working, without
being forced to pursue an analysis process that would clearly exceed the
scope and complexity intended by Congress. By defining the type of work at
issue as the job held or sought and other jobs with similar qualifications
and requirements, the proposed rule would relieve the employer and
individual of the obligation to engage in extensive research to develop data
on a wide range of factors external to the workplace, and then struggle to
draw conclusions about the relevance or applicability of those data
regarding circumstances very far removed from the particular individual and
the particular job.



S. 3406 Section 3. ''(2) MAJOR LIFE ACTIVITIES.- Provides the following
illustrative list of some major life activities. ''(A) IN GENERAL.-For
purposes of paragraph (1), major life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working."



By including working in the illustrative list, without comment or
distinction from the other examples, Congress has ended any speculation
about whether working is a major life activity and removed any justification
for the Commission to regard working as a separate class of major life
activity, or to treat it more restrictively than other types of major life
activities, as it does under the current rule. The proposed rule corrects
that problem by providing an analytical framework for determining
substantial limitation in working that more closely approximates the
approach that will be used under the new rules for all other major life
activities.



 S. 3406 Section 2. (a) (8) states that  "Congress finds that the current
Equal

Employment Opportunity Commission ADA regulations defining the term
''substantially limits'' as ''significantly restricted'' are inconsistent
with congressional intent, by expressing too high a standard." And Section 2
(b) (4) declares that it is a purpose of the Act  "to reject the standards
enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184 (2002),




Mr. Llewellyn

November 23, 2009

Page Five







that the terms ''substantially'' and ''major'' in the definition of
disability under the ADA ''need to be interpreted strictly to create a
demanding standard for qualifying as disabled,'' and that to be
substantially limited in performing a major life activity under the ADA ''an
individual must have an impairment that prevents or severely restricts the
individual from doing activities that are of central importance to most
people's daily lives''



The Commission's current rule on establishing substantial limitation in
working implements the excessively high standards that were rejected by
Congress. The requirement under the current rule to show that an individual
is "significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes" is consistent with a
demanding standard requiring the individual to be prevented or severely
restricted from working, and entirely inconsistent with the congressional
intent declared in this finding.  By lifting the requirement to show
substantial limitation in a broad range or class of jobs, and moving to an
analysis focused on the type of work in question, the proposed rule
addresses the inconsistency with congressional intent, and provides a less
restrictive approach to establishing substantial limitation in working,
allowing for broader coverage.

The provision of the proposed rule clarifying that "[t]he fact that an
individual has obtained employment elsewhere is not dispositive of whether
an individual is substantially limited in working," is necessary in order to
bring the rule into accord with the finding and purpose cited above.
Evidence that an individual is able to obtain other work could be
dispositive only if substantial limitation in the major life activity of
working were interpreted as prevented from working, which is a standard
explicitly rejected by Congress.


S. 3406 Section (4) RULES OF CONSTRUCTION REGARDING THE DEFINITION OF
DISABILITY directs that "[t]he definition of 'disability' in paragraph (1)
shall be construed in accordance with the following: ''(A) The definition of
disability in this Act shall be construed in favor of broad coverage of
individuals under this Act, to the maximum extent permitted by the terms of
this Act.



Under this rule of construction the only germane argument the Commission
would be able to offer in support for an approach to substantial limitation
in working that would provide less broad coverage than the proposed rule
would be that the terms of the Act mandate that more restrictive approach.
Any possible claims purporting the desirability of treating substantial
limitation in working in some way that would result in coverage for fewer
individuals than the proposed rule cannot be relevant considerations for the
Commission under this rule of construction. While there may be room to argue
that the terms of the Act allow some approach to substantial limitation in
working that would afford broader coverage of individuals than the proposed
rule, there is nothing to be found in the terms of the Act that would not
permit the proposed rule, or that would require a more restrictive
application.




Mr. Llewellyn

November 23, 2009

Page Six





2) The proposed rule provides much greater clarity, making it significantly
easier for employers to understand and fulfill their obligations and for
individuals with disabilities to understand and pursue their rights.



Under the Commission's current rule, any employer or individual attempting
to determine whether an impairment resulted in a substantial limitation in
the major life activity of working would be obliged to conduct a very
extensive and complicated analysis encompassing a wide range of diverse
variables, each demanding a separate analysis and requiring research to
gather and evaluate data that would not be readily available to, commonly
used or easily applied by employers or workers with disabilities. As a
result the amount of effort required by the current rule in order to reach a
conclusion, with any degree of confidence, about whether an impairment
results in a substantial limitation in working is so prohibitively high as
to be practically impossible.

By giving the analysis a focus on the individual's impairment related to the
type of work at issue, and by defining the type of work at issue as the job
held or sought and other jobs with similar qualifications and requirements,
the proposed rule very significantly simplifies the analysis an employer or
individual would need to conduct.  By reducing the number of disputable
variables to be considered, the proposed rule also increases the likelihood
of the parties reaching the same conclusion.

The Commission is correct in observing that an individual who has an
impairment that causes a substantial limitation in working will usually be
substantially limited in another major life activity as well.  However, even
in that common situation, the greater clarity and simplicity of the proposed
rule, will often make it significantly easier for employers to understand
and meet their obligations under the law and for individuals to understand
and pursue their rights. To the extent that an individual's disability under
the Act can be determined, or significantly substantiated, using information
from the workplace that is readily available without separate research and
understood by the interested parties without extensive analysis, those
parties are relieved of a need to conduct an investigation or develop
documentation on the impacts of the impairment in the individual's private
life. This could be particularly helpful in facilitating and simplifying
reasonable accommodations processes, since evidence related to establishing
a need for the accommodation would also contribute toward a part of the
determination of whether the individual has a substantial limitation in
working.



MAJOR LIFE ACIVITIES: We support the following proposed rule on major life
activities.

(i) Major Life Activities are those basic activities, including major bodily
functions, that most people in the general population can  perform with
little or no difficulty. Major life activities include, but are not limited
to:



Mr. Llewellyn

November 23, 2009

Page Seven



    (1) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working; and
    (2) The operation of major bodily functions, including functions of  the
immune system, special sense organs, and skin; normal cell growth; and
digestive, genitourinary, bowel, bladder, neurological, brain, respiratory,
circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal,
and reproductive functions. For example, kidney disease affects bladder
function; cancer affects normal cell growth; diabetes affects functions of
the endocrine system (e.g., production of insulin); epilepsy affects
neurological functions or functions of the brain; and Human Immunodeficiency
Virus (HIV) and AIDS affect functions of the immune system and reproductive
functions. Likewise, sickle cell disease affects functions of the hemic
system, lymphedema affects lymphatic functions, and rheumatoid arthritis
affects musculoskeletal functions.
    (3) No Negative Implication From Omission of Particular Major Life
Activities or Impairments.
    (i) The list of examples of major life activities in paragraphs
(i)(1) and (2) of this section is not exhaustive.
    (ii) The list of examples in paragraph (i)(2) of this section is
intended to illustrate some of the types of major bodily functions that  may
be affected by some types of impairments. The impairments listed may affect
major life activities other than those specifically identified.



We support the proposed definition of "Major Life Activities" as ". those
basic activities, including major bodily functions, that most people in the
general population can perform with little or no difficulty," as a
significant improvement over the short list of functions used in the current
rule to define "Major Life Activities" by example. The proposed definition
is responsive to the purpose declared by Congress in  S. 3406 Section 2. (b)
"(4) to reject the standards enunciated by the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)" including
the standard that major life activities be "of central importance in most
people's daily lives."



The proposed definition in conjunction with the admonition to assume "No
Negative Implication From Omission of Particular Major Life Activities or
Impairments," should help to discourage courts from continuing the practice
of fabricating and projecting imaginary organizing criteria on to the list
of examples of major life activities, and then applying those imagined
criteria as justification to exclude nearly any activity not explicitly
listed.



However, the practice of ascribing underlying exclusive criteria to the list
of examples of major life activities is so deeply engrained in some courts
that we strongly urge the Commission to add language to the final rule that
even more clearly and unambiguously warns against doing so. In fact, one
circuit court has already cited congress' inclusion of a list of examples of
major life activities in the ADA Amendments Act to justify excluding other
activities based on the organizing criteria it imagines it has divined from
that list. Winsley v. Cook County Department of Health (7th Cir., April 22,
2009).  Although this case was decided under the ADA, the suggestion in the
decision that the




Mr. Llewellyn

November 23, 2009

Page Eight



list of examples of major life activities in the ADA Amendments Act supports
a narrow and exclusive interpretation of that term is a strong indication
that the final rule needs to be as clear as possible on this issue.   We
urge the Commission to add language to the final rule clarifying that the
term "Major Life Activities" shall be construed in favor of broad coverage
of individuals under this Act, and that imposition of additional criteria
that could exclude some basic activities, including major bodily functions,
that most people in the general population can perform with little or no
difficulty is prohibited under the rule of construction which requires the
term to be interpreted to provide the broadest coverage permitted by the
terms of the Act.



We support the addition of "sitting, reaching and interacting with others to
the list of examples of major life activities and the addition of "hemic,
lymphatic, musculoskeletal, special sense organs and skin, genitourinary,
and cardiovascular" to the list of examples of major bodily functions.  It
is essential that the rule clearly and unambiguously carry out the mandate
that major life activities not be limited to the examples provided in the
Act before common usage is allowed to ossify around those examples in a way
that has the effect excluding most other activities and function.  Providing
additional examples of major life activities and major bodily functions is
the most direct way for the rule to pursue that mandate.  By choosing
activities the Commission has previously used in guidances it has issued
under the current, too restrictive, rule and examples of bodily functions
drawn from the statutory definition of "impairment," the Commission has
taken a conservative approach to introducing additional examples. We urge
the Commission to add further examples, including such of major life
activities as driving, writing and reproduction.



LEARNED BEHAVIOR AND ADAPTIVE NEUROLOGICL MODIFICATIONS: We recommend that
the Commission add an example to the discussion of mitigating measures
illustrating learned behavior or adaptive neurological modifications as
mitigating measures. Of the categories of mitigating measures listed in the
Act, learned behavior and adaptive neurological modifications are likely to
be those for which employers and the courts will be most in need of a clear,
strong example to help them recognize this kind of mitigating measure and
distinguish the ameliorative effects.



Since this type of mitigation does not depend on external agents such as a
device or medication and will often be applied by the individual without any
observable outward indicators, employers and courts will need guidance to
prepare them to even acknowledge the presence and application of such
mitigating measures. There is also a very strong tendency to mistakenly
equate the ameliorative effects of a mitigating measure applied by an
individual to an internal process with recovery from the disability.



A strong example would help employers and the courts understand the
difference between mitigation and recovery.  It should illustrate the fact
that the development and




Mr. Llewellyn

November 23, 2009

Page Nine





application of a technique that allows an individual to temporarily work
around a particular impact of a disability does nothing to diminish the
disability itself. It should also illustrate the fragility of many of these
types of mitigating measures by showing that stress, fatigue or
environmental factors can cause them to fail as completely as any device
might.





Thank you for considering these comments.



Sincerely,

Toby Olson

Toby Olson

Executive Secretary









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