On October 11, 2016, new regulations clarifying the definition of the term “disability” under Titles II and III of the Americans with Disabilities Act (ADA) will take effect.  Title II prohibits disability discrimination by state and local governments (including public schools and state colleges and universities) and Title III prohibits disability discrimination by places of public accommodations and in commercial facilities (including independent schools and private colleges and universities).  The new Title II and Title III regulations implement the Americans with Disabilities Amendment Act of 2008 and are consistent with the regulations the Equal Employment Opportunity Commission adopted under Title I of the ADA, which governs employment discrimination on the basis of disability.

These new regulations reiterate that the term “disability” should be broadly construed, and instruct that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  Importantly, however, the regulations do not change the basic definition of disability: “(i) a physical or mental impairment that substantially limits one or more major life activities of such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment . . . .” Rather, they provide rules of construction for interpretation of the definition and the terms used therein.  For example, they specify that, among other things:

  • The term “disability” must be “construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;”
  • The term “major life activity” must not be “interpreted strictly to create a demanding standard” and that “[w]hether an activity is a major life activity is not determined by reference to whether it is of central importance to daily life;” and
  • The term “substantially limits” must be “construed broadly in favor of expansive coverage” and is “not meant to be a demanding standard;”

Of particular significance is the addition of attention deficit hyperactivity disorder and dyslexia to the list of examples of mental and physical impairments, and the addition of “writing” and “interacting with others” to the list of examples of major life activities (which also include caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, reading, speaking, breathing, learning, concentrating, thinking, communicating, and working, in addition to the operation of major bodily functions).  Further, the new regulations add a new section on “predictable assessments” which list a number of impairments that “in virtually all cases” will result in a determination that an individual has an actual disability.  The list of such impairments include major depressive disorder, bipolar disorder, post-traumatic stress-disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia (the list also includes: deafness, blindness, intellectual disability, partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, and HIV).

Entities that receive federal funding, and therefore are also covered by Section 504 of the Rehabilitation Act of 1973, should also take note of these new definitions and rules of construction as the ADA and Section 504 are often interpreted and applied in tandem when both laws apply.  Thus, for example, public schools should be aware of and apply these new regulations in making decisions about Section 504 eligibility for students.

When Congress passed the ADA in 1990, it adopted the functional definition of disability from Section 504 of the Rehabilitation Act of 1973, in hopes that the definition was well understood.  However, the Supreme Court narrowed the definition in Sutton v. United Air Lines, 547 U.S. 471, 482 (1999) and Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  In response, Congress amended the ADA with the Americans with Disabilities Amendment Act of 2008 to restore the broad definition of the term “disability” as it originally intended.  The ADA Amendments Act of 2008 became effective January 1, 2009.

For a complete copy of the new regulations, click here.

For a complete copy of the Americans with Disabilities Act Amendments of 2008, click here.