Featured Blogger - Jonathan Mook: The ADA Amendments Act: What Are Major Life Activities and What Is “Substantially” Limiting?

Featured Blogger - Jonathan Mook: The ADA Amendments Act: What Are Major Life Activities and What Is “Substantially” Limiting?

Under the requirement of having an actual disability in both the original ADA and the ADA Amendments Act, a physical or mental impairment must substantially limit what is termed a “major life activity.”  Under the original provisions of the ADA, passed in 1990, Congress did not define what constitutes a major life activity for purposes of the ADA analysis.  The U.S. Equal Employment Opportunity Commission (“EEOC”) promulgated regulations in 1991 pertaining to the employment provisions of the ADA and in doing so, set forth a non-exclusive list of what may constitute major life activities.  These activities included such functions as walking, seeing, hearing, speaking, breathing and working.

  To listen for free to my podcast on the ADA amendments, click here.

Supreme Court’s Refusal to Give Deference to EEOC Regs

In its 1999 decision in Sutton v. United Air Lines, Inc., however, the U.S. Supreme Court refused to give deference to the EEOC’s regulations.  The Court acknowledged that under the original ADA , Congress charged the EEOC with promulgating regulations to implement Title I – the employment provisions – of the statute.  Nonetheless, the section containing the ADA ’s definitions was not included in Title I.  Hence, the Supreme Court reasoned that the EEOC lacked specific statutory authority in defining what is a “major life activity” and, accordingly, the courts need not give deference to the agency’s interpretation.

Moreover, in Sutton, the Supreme Court questioned whether “working” should be considered a major life activity.  Although there can be no question that working is central to most people’s daily life, the Court reasoned that working, in and of itself, is not a major life activity.  It is not akin to such discrete functions as walking, seeing or hearing, but, rather, involves the combination of a number of such functions.

Given the absence of a specific statutory definition of a “major life activity,” coupled with the Supreme Court’s questioning of the EEOC’s regulations, there has been a considerable amount of debate among the courts as to what is and is not a major life activity for purposes of the ADA analysis.  For example, a number of courts have taken a relatively broad view of what constitutes a major life activity and have included eating, thinking, as well as interacting with others.  Other courts, however, have viewed the term in a more limited way and have held that concentration, commuting to and from work or driving, or such physical activities as crawling, kneeling and squatting do not rise to the level of a “major life activity.” 

Clarity to the Definition

The ADA Amendments Act seeks to bring some clarity to the definition of a “major life activity” by specifically including in the statute itself a non-exclusive list of those functions that may constitute major life activities.  These are as follows:

  • caring for oneself;
  • seeing;
  • eating;
  • walking;
  • lifting;
  • speaking;
  • learning;
  • concentrating;
  • communicating;
  • performing manual tasks;
  • hearing;
  • sleeping;
  • standing;
  • bending;
  • breathing;
  • reading;
  • thinking; and
  • working.

Significantly, the ADA Amendments Act lists “working” as being a major life activity – thereby eliminating any debate as to whether it should be considered as such.  Moreover, by including “concentrating,” “thinking,” and “reading,” and “communicating” in the list of major life activities, the impact of the ADAAA will be to undoubtedly increase the number of persons with mental disabilities or learning disabilities seeking to invoke the protections of the statute.

For example, a person suffering from depression will be able to point to such cognitive functions as thinking and concentrating as being major life activities that are limited by the condition.  As a consequence, it is likely that additional numbers of individuals who are diagnosed with mental disorders and learning disabilities will be able to successfully claim protection under the ADA.  In the past, many courts have been hesitant to rule that they could come within the ADA ’s protections.  Now, there should be no such hesitancy.

What Are Major Bodily Functions?

Additionally, if the above list of major life activities is not sufficient to sweep in a greater number of individuals who would satisfy the definition of “disability,” the ADA Amendments Act goes on to expand the concept of major life activities to include “major bodily functions,” such as the following:

  • immune system;
  • bowel;
  • neurological (dyslexia and learning disabilities);
  • respiratory;
  • reproductive functions;
  • digestive;
  • bladder;
  • brain;
  • circulatory; and
  • endocrine.

What About Sex?

It is interesting to note that the ADAAA specifically lists “reproductive functions” as being a major bodily function/life activity under the statute.  This is in line with the Supreme Court’s 1998 decision in Bragdon v. Abbott, in which the Court ruled that a woman infected with the HIV virus, but who was asymptomatic, was covered by the ADA because she was substantially limited in the major life activity of being able to reproduce for fear that she might infect a partner or her unborn child.

Left unresolved in the Supreme Court’s decision, as well as in the language of the ADAAA, is whether “reproductive functions” extends to engaging in sexual relations.  In other words, is having sex a major life activity for purposes of the ADA analysis?  Several courts, including most recently, the D.C. Circuit, have held that it is.  Because the ADA Amendments Act does not definitely answer the question, it still is an open one.  Hence, in the foreseeable future, the Supreme Court may be called upon to opine on the issue.  If it does, it will be interesting to see how the justices come out on that question!

What Is a “Substantial Limitation”

As the language of both the ADA and the ADAAA make clear, in order to be actually disabled, a person must be more than just limited in a major life activity due to a physical or mental impairment, the person must be “substantially” limited.  In its 2002 decision in Toyota v. Williams, the Supreme Court took the view that the phrase “substantially limits” means being prevented or severely restricted in performing major life activities.  The Court viewed the term “substantially limits” through the lens of a “demanding standard for qualifying as disabled.” 

The ADAAA, however, references the Toyota v. Williams decision and specifically rejects the reasoning of the Supreme Court in that case.  Indeed, Congress went so far as to specifically find that the Toyota case interpreted the term “substantially limits” to a greater degree of limitation than was intended by Congress. 

Surprisingly, however, in enacting the ADAAA, Congress did not set forth an alternative definition of “substantially limit.”  Rather, Congress left it to the EEOC to promulgate new regulations defining the term and, in doing so, expressly disavowed the EEOC’s present definition which equates “substantially limits” with “significantly restricted.”  The ADAAA states that equating these two terms is “inconsistent with Congressional intent, by expressing too high a standard.” 

It remains to be seen what definition the EEOC will adopt to conform to the intent of Congress in passing the ADA Amendments Act.  In December, 2007, the EEOC Commissioners considered whether to promulgate interim regulations in conformity with the directions of Congress in passing the ADAAA.  Those interim regulations would have been in place prior to the January 1, 2009 effective date of the ADAAA.  One of those directions, of course, was to redefine the term “substantially limits.”  However, the Commission decided not to go forward with interim regulations.  Instead, the Commission decided to wait until the new administration and to take a more deliberative approach in formulating regulations to address the changes contemplated by Congress in the ADAAA. 

Accordingly, at this point in time, we all are left without any guidance from the EEOC as to what the term “substantially limits” is supposed to mean.  Clearly, we know that the existing EEOC definition is too restrictive – but that is all we know.  How much broader the EEOC will go is something upon which we can only speculate.  We don’t even have a draft proposal from the EEOC as to its thoughts on the matter.  Accordingly, employers and employees, as well as their counsel, are left in a situation of needing to read the tea leaves and to divine the proper interpretation of how limited “substantially limited” needs to be.  At least in my view, the EEOC did not do anyone a favor at its December meeting in leaving this matter for another day – since another day could easily be months (if not a year) away.

  • To read my blog on The ADA Amendments Act: What It Means for You, click here.
  • To read my blog on The ADA Amendments Act: Expanding the Definition of Disability, click here.
  • To read To read my blog on The ADA Amendments Act: The Product of a Remarkable Bi-Partisan Coalition, click here.
  • To read my blog on The ADA Amendments Act: Final Thoughts and Compliance Tips, click here.

 Publisher's Note: To purchase Jonathan Mook's pamphlet on the "ADA Amendments Act of 2008", call LexisNexis Customer Service at 1-800-833-9844. The ISBN is 978-1-4224-7105-0. Price is $96, effective through 12/31/2009.