28 C.F.R. 35 app C to Part 35 Guidance to Revisions to Ada Title II and Title III Regulations Revising the Meaning and Interpretation of the Definition of ''disability'' and Other Provisions In Order to Incorporate the Requirements of the Ada Amendments Act

• Library: Code of Federal Regulations
• Edition: 2023
• Currency: Current through November 30, 2023
• Citation: 28 C.F.R. 35 app C to Part 35
• Year: 2023

NOTE: This appendix contains guidance providing a section-by-section analysis of the revisions to 28 CFR parts 35 and 36 published on August 11, 2016.

GUIDANCE AND SECTION-BY-SECTION ANALYSIS

This section provides a detailed description of the Department's changes to the meaning and interpretation of the definition of "disability" in the title II and title III regulations, the reasoning behind those changes, and responses to public comments received on these topics. See Office of the Attorney General; Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement ADA Amendments Act of 2008, 79 FR 4839 (Jan. 30, 2014) (NPRM).

Sections 28undefined35.101 and 28undefined36.101 -Purpose and Broad Coverage

Sections 28undefined35.101 and 28undefined36.101 set forth the purpose of the ADA title II and title III regulations. In the NPRM, the Department proposed revising these sections by adding references to the ADA Amendments Act in renumbered §§35.101(a) and 36.101(a) and by adding new §§35.101(b) and 36.101(b), which explain that the ADA is intended to have broad coverage and that the definition of "disability" shall be construed broadly. The proposed language in paragraph (b) stated that the primary purpose of the ADA Amendments Act is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the ADA Amendments Act's purpose of reinstating a broad scope of protection under the ADA, the definition of "disability" in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in ADA cases should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability should not demand extensive analysis.

Many commenters supported inclusion of this information as reiterating the statutory language evincing Congress' intention "to restore a broad definition of `disability' under the ADA. . . ." Several commenters asked the Department to delete the last sentence in §§35.101(b) and 36.101(b), arguing that inclusion of this language is inconsistent with the individualized assessment required under the ADA. Some of these commenters acknowledged, however, that this language is drawn directly from the "Purposes" of the ADA Amendments Act. See Public Law 110-325, sec. 2 (b)(5). The Department declines to remove this sentence from the final rule. In addition to directly quoting the statute, the Department believes that this language neither precludes nor is inconsistent with conducting an individualized assessment of whether an individual is covered by the ADA.

Some commenters recommended that the Department add a third paragraph to these sections expressly stating that "not all impairments are covered disabilities." These commenters contended that "[t]here is a common misperception that having a diagnosed impairment automatically triggers coverage under the ADA." While the Department does not agree that such a misperception is common, it agrees that it would be appropriate to include such a statement in the final rule, and has added it to the rules of construction explaining the phrase "substantially limits" at §§35.108(d)(1)(v) and 36.105 (d)(1)(v).

Sections 28undefined35.104 and 28undefined36.104 -Definitions

The current title II and title III regulations include the definition of "disability" in regulatory sections that contain all enumerated definitions in alphabetical order. Given the expanded length of the definition of "disability" and the number of additional subsections required in order to give effect to the requirements of the ADA Amendments Act, the Department, in the NPRM, proposed moving the definition of "disability" from the general definitional sections at §§35.104 and 28undefined36.104 to a new section in each regulation, §§35.108 and 36.105, respectively.

The Department received no public comments in response to this proposal and the definition of "disability" remains in its own sections in the final rule.

Sections 35.108 (a)(1) and 36.105(a)(1) Definition of "disability"-General

In the ADA, Congress originally defined "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Public Law 101-336, sec. 3 (1990). This three-part definition-the "actual," "record of," and "regarded as" prongs-was modeled after the definition of "handicap" found in the Rehabilitation Act of 1973. H.R. Rep. No. 110-730, pt. 2, at 6 (2008). The Department's 1991 title II and title III ADA regulations reiterate this three-part basic definition as follows:

Disability means, with respect to an individual,

56 FR 35694, 35717 (July 26, 1991); 56 FR 35544, 35548 (July 26, 1991).

While the ADA Amendments Act did not amend the basic structure or terminology of the original statutory definition of "disability," the Act revised the third prong to incorporate by reference two specific provisions construing this prong. 42 U.S.C. 42undefined12102(3)(A)-(B). The first statutory provision clarified the scope of the "regarded as" prong by explaining that "[a]n individual meets the requirement of `being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. 42undefined12102(3)(A). The second statutory provision provides an exception to the "regarded as" prong for impairments that are both transitory and minor. A transitory impairment is defined as "an impairment with an actual or expected duration of 6 months or less." 42 U.S.C. 42undefined12102(3)(B). In the NPRM, the Department proposed revising the "regarded as" prong in §§35.108(a)(1)(iii) and 36.105(a)(1)(iii) to reference the regulatory provisions that implement 42 U.S.C. 42undefined12102(3). The NPRM proposed, at §§35.108(f) and 36.105(f), that "regarded as" having an impairment would mean that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both "transitory and minor."

The first proposed sentence directed that the meaning of the "regarded as prong" shall be understood in light of the requirements in §§35.108(f) and 36.105(f). The second proposed sentence merely provided a summary restatement of the requirements of §§35.108(f) and 36.105(f). The Department received no comments in response to this proposed language. Upon consideration, however, the Department decided to retain the first proposed sentence but omit the second as superfluous. Because the first sentence explicitly incorporates and directs the public to the requirements set out in §§35.108(f) and 36.105(f), the Department believes that summarizing those requirements here is unnecessary. Accordingly, in the final rule, §§35.108(a)(1)(iii) and 36.105(a)(1)(iii) simply reference paragraph (f) of the respective section. See also, discussion in the Guidance and Section-by-Section analysis of §§35.108(f) and 36.105(f), below.

Sections 35.108 (a)(2) and 36.105(a)(2) Definition of "disability"-Rules of Construction

In the NPRM, the Department proposed §§35.108(a)(2) and 36.105(a)(2), which set forth rules of construction on how to apply the definition of "disability." Proposed §§35.108(a)(2)(i) and 36.105(a)(2)(i) state that an individual may establish coverage under any one or more of the prongs in the definition of "disability"-the "actual disability" prong in paragraph (a)(1)(i), the "record of" prong in paragraph (a)(1)(ii) or the "regarded as" prong in paragraph (a)(1)(iii). See §§35.108(a)(1)(i) through (iii); 36.105(a)(1)(i) through (iii). The NPRM's inclusion of rules of construction stemmed directly from the ADA Amendments Act, which amended the ADA to require that the definition of "disability" be interpreted in conformance with several specific directives and an overarching mandate to ensure "broad coverage . . . to the maximum extent permitted by the terms of [the ADA]." 42 U.S.C. 42undefined12102(4)(A).

To be covered under the ADA, an individual must satisfy only one prong. The term "actual disability" is used in these rules of construction as shorthand terminology to refer to an impairment that substantially limits a major life activity within the meaning of the first prong of the definition of "disability." See §§35.108(a)(1)(i); 36.105(a)(1)(i). The terminology selected is for ease of reference. It is not intended to suggest that an individual with a disability who is covered under the first prong has any greater rights under the ADA than an individual who is covered under the "record of" or "regarded as" prongs, with the exception that the ADA Amendments Act revised the ADA to expressly state that an individual who meets the definition of "disability" solely under the "regarded as" prong is not...