91-291 A
March 28, 1991
CRS Report for Congress
Congressional Research Service - The Library of Congress

The Americans with Disabilities Act: Equal Employment Opportunity Commission Proposed Regulations on Equal Employment Opportunity for Individuals with Disabilities

Nancy Lee Jones
Legislative Attorney
American Law Division

SUMMARY
The Americans with Disabilities Act (ADA) is a major civil rights statute covering individuals with disabilities. Proposed regulations have recently been published by the Equal Employment Opportunities Commission (EEOC) for title I of the ADA. These proposed regulations may raise several issues, including questions about who is considered to be an individual with disabilities, and whether a qualifications standard may include a requirement that an individual not pose "a direct threat to the health or safety of the individual or others."

BACKGROUND
The ADA, P.L. 101-336, 42 U.S.C. secs. 12101 et seq., has often been described as the most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. Enacted on July 26, 1990, it provides broad based nondiscrimination protection for individuals with disabilities in employment, public services, public accommodations and services operated by private entities, transportation, and telecommunications. The act specifically provides for the issuance of regulations by various entities and recently four sets of proposed regulations have been promulgated: accessibility guidelines by the Architectural and Transportation Barriers Compliance Board(1), regulations for nondiscrimination on the basis of disability by public accommodations by the Department of Justice(2), regulations for nondiscrimination on the basis of...


Footnotes:
1 56 Fed. Reg. 2296 (Jan. 22, 1991)(Comments due by March 25, 1991).
2 56 Fed. Reg. 7452 (Feb. 22. 1991)(Comments due April 23, 1991).
CRS Reports are prepared for Members and committees of Congress
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... disability in state or local government services by the Department of Justice(3), and regulations concerning equal employment opportunity for individuals with disabilities by the EEOC.(4)

ANALYSIS
Section 106 of the ADA, 42 U.S.C. sec. 12116, requires the EEOC to issue regulations implementing title I of the Act within one year of the act’s passage. Proposed regulations were issued on February 28, 1991 and comments will be considered if received by April 29, 1991. On August 1, 1990, the Commission had published an advance notice of proposed rule making’ inviting comment on the development of the proposed rule and numerous comments were received.

The ADA is a detailed statute which is described by the EEOC as "unusual...in that it contains a level of detail more commonly found in regulations, leaving very little room for regulatory discretion....The regulation merely explains and provides guidance on the statutory requirements by relying primarily on existing case law, which is another limitation on Commission discretion in constructing the regulation(6)". Prior to a discussion of the February proposed regulations, therefore, it is helpful to examine briefly the ADA’s statutory language and legislative history regarding title I.

Statutory Requirements of the ADA Regarding Employment
The Americans with Disabilities Act was based on the regulations and judicial interpretation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 794(7). The definition of the term “disability” is the same as that applicable to section 504: the term disability is defined as meaning with respect to an individual "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”(8)

The core requirement of title I of the ADA is that no covered entity shall discriminate against a qualified individual with a disability because of the disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. The term employment is defined as a...

Footnotes:
3 56 Fed. Reg. 8538 (Feb. 28, 1991)(Comments due by April 29, 1991).
4 56 Fed. Reg. 8578 (Feb. 28, 1991)(Comments due by April 29, 1991).
5 65 Fed. Reg. 31192 (Aug. 1, 1990).
6 56 Fed. Reg. 8579 (Feb. 28, 1991).
7 S.Rep. No, 116, 101st Cong., 1st Sess. 24-44 (1989).
8 29 U.S.C. sec. 706(8); ADA sec. 3, 42 U.S.C. sec. 12102(2).

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... person engaged in an industry affecting commerce who has 15 or more employees; however, for the two years following the effective date of the title, an employer means a person engaged in an industry affecting commerce who has 25 or more employees. The term qualified individual with a disability is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the person holds or desires."(9) These requirements also echo those in the section 504 regulations, particularly with regard to the requirement to provide reasonable accommodation unless such accommodation would pose an undue hardship on the operation of the business. The ADA specifically lists some defenses to a charge of discrimination including (1) that the alleged application of qualification standards has been shown to be job related and consistent with business necessity and such performance cannot be accomplished by reasonable accommodation, (2) the term qualification standards can include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the work place, and (3) religious entities may give a preference in employment to individuals of a particular religion to perform work connected with carrying on the entities’ activities.(10)

Major Issues Raised by the EEOC's ADA Regulations
The EEOC’s ADA regulations closely parallel the statutory language of the ADA, its legislative history, and regulatory and judicial interpretation of section 504 of the Rehabilitation Act. However, certain additions are made, such as definitions for the terms "substantially limits," "essential functions," and "reasonable accommodation." A proposed appendix is also included at the end of the regulations which provides further interpretation. In addition, the Commission has stated it will provide more detailed guidance in a compliance manual which is expected to be issued prior to the ADA’s effective date. The Commission has indicated that the compliance manual will contain guidance on issues such as theories of discrimination, definitions of disability and of qualified individual with a disability, and reasonable accommodation and undue hardship."(11)

The EEOC specifically asked for comments on several of the difficult issues raised by title I. These include comments on how to determine whether an employer regards a particular individual as having an impairment that substantially limits the major life activity of working; insurance; worker's compensation; and collective bargaining agreements. With regard to insurance, one of the most difficult issues in disability law, the EEOC has asked for comments on four questions: (1) what are the current risk assessment or...

Footnotes:
9 ADA, sec. 101(8), 42 U.S.C. sec. 12111.
10 For a more detailed discussion of the statutory requirements of the ADA see “The Americans with Disabilities Act: An Overview of Major Provisions,” CRS Rep. No. 90-366A (July 31, 1990).
11 56 Fed. Reg. 8578 (Feb. 28, 1991).
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... classification practices with respect to health and life insurance coverage in the area of employment? (2) must risk assessment or classification be based on actuarial statistics? (3) what is the relationship between “risk” and “cost"? and (4) must an employer or insurance company consider the effect on individuals with disabilities before making cost saving changes in its insurance coverage?”(12) With regard to worker’s compensation, the EEOC has asked for comment on three questions: (1) is submission of medical information to worker's compensation offices a permissible use of information obtained as a result of a medical examination or inquiry? (2) is an inquiry into the medical history of an individual’s worker’s compensation claims a prohibited pre-employment inquiry or could it ever be a job-related inquiry? (3) what has been the experience of federal contractors subject to section 503 of the Rehabilitation Act with respect to State worker’s compensation requirements? Finally, with regard to collective bargaining agreements, the EEOC has posed four questions: (1) can the effect of a particular accommodation on the provisions of a collective bargaining agreement ever be considered an undue hardship? (2) what is the relationship between collective bargaining agreements and the accommodation of reassignment to a vacant position? (3) should a position be considered vacant when the employer has other obligations, such as consent decrees or arbitration agreements, with respect to filling the position? and (4) if a necessary reasonable accommodation is challenged as a violation of a collective bargaining agreement, would the employer or union violate the confidentiality requirements of the ADA by explaining that the accommodation was made to comply with the ADA?

In addition to the issues that the EEOC has specifically sought comment on, several others may prove to be controversial. The issues revolving around the definition of individual with disabilities are among the most critical. Among the specific areas which may be of concern to commentators in this regard is the proposed regulatory guidance on factors to be considered concerning whether an individual is substantially limited in a major life activity. These factors include "the duration or expected duration of the impairment." This raises the issue of whether temporary disabilities such as a broken leg would be covered. In the proposed appendix, the EEOC states that a broken leg that takes 8 weeks to heal is an impairment of a fairly brief duration but does not indicate that this would be an automatic exclusion although it does note that “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact are usually not disabilities."(13) The EEOC emphasizes that "the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis."(14) Similarly, the proposed EEOC regulations do not directly address the controversial issue of whether...

Footnotes:
12 56 Fed. Reg. 8579 (Feb. 28, 1991).
13 66 Fed. Reg. 8594 (Feb. 28, 1991).
14 66 Fed. Reg. 8593 (Feb. 28, 1991).
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... obesity is a disability but note in the appendix that “except in rare and limiting circumstances, obesity is not considered a disabling impairment."(15)

One of the more controversial aspects of the EEOC proposed regulations is the definition of "direct threat." The ADA defines the term "qualifications standards" so as to allow inclusion of a requirement that an individual not pose "a direct threat to the health or safety of other individuals in the workplace."(16) The proposed EEOC regulations would define the term qualifications standard to allow inclusion of a requirement that an individual not pose a "direct threat to the health or safety of the individual or others.”(17) The proposed appendix elaborates on this. “If performing the particular functions of a job would result in a high probability of substantial harm to the individual, the employer would reject or discharge the individual unless a reasonable accommodation that would not cause an undue hardship would avert the harm. For example, an employer would not be required to hire an individual, disabled by narcolepsy, who frequently and unexpectedly loses consciousness for a carpentry job the essential functions of which require the use of power saws and other dangerous equipment, where no accommodation exists that will reduce or eliminate the risk."(18) However, the legislative history of the ADA refers only to a direct threat to others although the case law under section 504 is more ambiguous.(19)

Of perhaps more significance as an argument by analogy is the Supreme Court's recent decision under title VII of the Civil Rights Act of 1964 in Automobile Workers v. Johnson Controls, Inc., No. 89-1215 (March 20, 1991). In Johnson Controls, the Court found that an employer could not, in an attempt to protect potential fetuses, discriminate against women just because of their ability to become pregnant. The safety exception for title VII was seen as "limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job....Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents." The Court also addressed the issue of the potential liability of the employer for harm and stated: “[i]f under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not...

Footnotes:
15 56 Fed. Reg. 8594 (Feb. 28, 1991).
16 ADA sec. 103, 42 U.S.C. sec. 12113.
17 56 Fed. Reg. 8588 (Feb. 28, 1991).
18 66 Fed. Reg. 8597 (Feb. 28, 1991).
19 See Davis v. Meese, 692 F.Supp. 505 (E.D.Pa. 1988), aff'd without opinion, 895 F.2d 592 (3d Cir. 1989), where an insulin dependent diabetic was denied employment as an investigative specialist and special agent with the FBI due to a "very real danger of serious harm to the special agent or investigative specialist and uninvolved third parties, as well as potential serious harm and disruption to the operation of the FBI..." At 520.
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... acted negligently, the basis for holding an employer liable seems remote at best." If the logic of Johnson Controls was applied to the direct threat language in the ADA, it would appear that the safety of an individual with disabilities would not be a criteria which could be used to deny employment to such an individual unless the disability interferes with the ability to do the job. It could be argued that the example given in the EEOC proposed appendix regarding an individual with narcolepsy who wanted to become a carpenter might fall within a Johnson Controls type of test in that arguably the disability in that situation would interfere with the ability to do the job. However, the more general language of the proposed EEOC regulation may not be consistent with the type of rationale used by the Court.

Another issue which has been controversial is that concerning the employment of former drug addicts. The ADA specifically provides that the term "individual with a disability" "does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."(20) However, the ADA definition does not exclude individuals who are no longer engaging in such activity. This has given rise to questions concerning whether certain employers, particularly law enforcement agencies, can take a previous history of drug abuse into account. This issue is not directly addressed in the EEOC proposed regulations but is discussed in the proposed appendix. “An employer, such as a law enforcement agency, may also be able to impose a qualification standard that excludes individuals with a history of illegal use of drugs if it can show that the standard is job-related and consistent with business necessity."(21)

(signature) Nancy Lee Jones
Legislative Attorney
March 28, 1991

Footnotes:
20 ADA, sec. 510, 42 U.S.C. sec. 12210.
21 56 Fed. Reg. 8597 (Feb. 28, 1991).
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