Appendix to Part 1630 - Interpretive Guidance on Title I of the

Americans with Disabilities Act

Background

The ADA is a federal antidiscrimination statute designed to

remove barriers which prevent qualified individuals with

disabilities from enjoying the same employment opportunities that

are available to persons without disabilities.

Like the Civil Rights Act of 1964 that prohibits discrimination

on the bases of race, color, religion, national origin, and sex,

the ADA seeks to ensure access to equal employment opportunities

based on merit. It does not guarantee equal results, establish

quotas, or require preferences favoring individuals with

disabilities over those without disabilities.

However, while the Civil Rights Act of 1964 prohibits any

consideration of personal characteristics such as race or

national origin, the ADA necessarily takes a different approach.

When an individual's disability creates a barrier to employment

opportunities, the ADA requires employers to consider whether

reasonable accommodation could remove the barrier.

The ADA thus establishes a process in which the employer must

assess a disabled individual's ability to perform the

essential functions of the specific job held or desired. While

the ADA focuses on eradicating barriers, the ADA does not relieve

a disabled employee or applicant from the obligation to perform

the essential functions of the job. To the contrary, the ADA is

intended to enable disabled persons to compete in the workplace

based on the same performance standards and requirements that

employers expect of persons who are not disabled.

However, where that individual's functional limitation impedes

such job performance, an employer must take steps to reasonably

accommodate, and thus help overcome the particular impediment,

unless to do so would impose an undue hardship. Such

accommodations usually take the form of adjustments to the way a

job customarily is performed, or to the work environment itself.

This process of identifying whether, and to what extent, a

reasonable accommodation is required should be flexible and

involve both the employer and the individual with a disability.

Of course, the determination of whether an individual is

qualified for a particular position must necessarily be made on a

case-by-case basis. No specific form of accommodation is

guaranteed for all individuals with a particular disability.

Rather, an accommodation must be tailored to match the needs of

the disabled individual with the needs of the job's essential

functions.

This case-by-case approach is essential if qualified individuals

of varying abilities are to receive equal opportunities to

compete for an infinitely diverse range of jobs. For this

reason, neither the ADA nor this regulation can supply the

"correct" answer in advance for each employment decision

concerning an individual with a disability. Instead, the ADA

simply establishes parameters to guide employers in how to

consider, and take into account, the disabling condition

involved.

Introduction

The Equal Employment Opportunity Commission (the Commission or

EEOC) is responsible for enforcement of title I of the Americans

with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. (1990),

which prohibits employment discrimination on the basis of

disability. The Commission believes that it is essential to issue

interpretive guidance concurrently with the issuance of this part

in order to ensure that qualified individuals with disabilities

understand their rights under this part and to facilitate and

encourage compliance by covered entities. This Appendix

represents the

Commission's interpretation of the issues discussed, and the

Commission will be guided by it when resolving charges of

employment discrimination. The Appendix addresses the major

provisions of this part and explains the major concepts of

disability rights.

The terms "employer" or "employer or other covered entity" are

used interchangeably throughout the Appendix to refer to all

covered entities subject to the employment provisions of the ADA.

Section 1630.1 Purpose, Applicability and Construction

Section 1630.1(a) Purpose

The Americans with Disabilities Act was signed into law on July

26, 1990. It is an antidiscrimination statute that requires that

individuals with disabilities be given the same consideration for

employment that individuals without disabilities are given. An

individual who is qualified for an employment opportunity cannot

be denied that opportunity because of the fact that the

individual is disabled. The purpose of title I and this part is

to ensure that qualified individuals with disabilities are

protected from discrimination on the basis of disability.

The ADA uses the term "disabilities" rather than the term

"handicaps" used in the Rehabilitation Act of 1973, 29 U.S.C.

701-796. Substantively, these terms are equivalent. As noted by

the House Committee on the Judiciary, "[t]he use of the term

'disabilities' instead of the term 'handicaps' reflects the

desire of the Committee to use the most current terminology. It

reflects the preference of persons with disabilities to use that

term rather than 'handicapped' as used in previous laws, such as

the Rehabilitation Act of 1973 ...." H.R. Rep. No. 485 Part 3,

101st Cong., 2d Sess. 26-27 (1990) [hereinafter House Judiciary

Report]; see also S. Rep. No. 116, 101st Cong., 1st Sess. 21

(1989) [hereinafter Senate Report]; H.R. Rep. No. 485 Part 2,

101st Cong., 2d Sess. 50-51 (1990) [hereinafter House Labor

Report].

The use of the term "Americans" in the title of the ADA is not

intended to imply that the Act only applies to United States

citizens. Rather, the ADA protects all qualified individuals with

disabilities, regardless of their citizenship status or

nationality.

Section 1630.1(b) and (c) Applicability and Construction Unless

expressly stated otherwise, the standards applied in the ADA are

not intended to be lesser than the standards applied under the

Rehabilitation Act of 1973.

The ADA does not preempt any Federal law, or any state or local

law, that grants to individuals with disabilities protection

greater than or equivalent to that provided by the ADA. This

means that the existence of a lesser standard of protection to

individuals with disabilities under the ADA will not provide a

defense to failing to meet a higher standard under another law.

Thus, for example, title I of the ADA would not be a defense to

failing to collect information required to satisfy the

affirmative action requirements of Section 503 of the

Rehabilitation Act. On the other hand, the existence of a lesser

standard under another law will not provide a defense to failing

to meet a higher standard under the ADA. See House Labor Report

at 135; House Judiciary Report at 69-70.

This also means that an individual with a disability could choose

to pursue claims under a state discrimination or tort law that

does not confer greater substantive rights, or even confers fewer

substantive rights, if the potential available remedies would be

greater than those available under the ADA and this part. The ADA

does not restrict an individual with a disability from pursuing

such claims in addition to charges brought under this part. House

Judiciary at 69-70.

The ADA does not automatically preempt medical standards or

safety requirements established by Federal law or regulations. It

does not preempt State, county, or local laws, ordinances or

regulations that are consistent with this part, and are designed

to protect the public health from individuals who pose a direct

threat, that cannot be eliminated or reduced by reasonable

accommodation, to the health or safety of others. However, the

ADA does preempt inconsistent requirements established by state

or local law for safety or security sensitive positions. See

Senate Report at 27; House Labor Report at 57.

An employer allegedly in violation of this part cannot

successfully defend its actions by relying on the obligation to

comply with the requirements of any state or local law that

imposes prohibitions or limitations on the eligibility of

qualified individuals with disabilities to practice any

occupation or profession. For example, suppose a municipality has

an ordinance that prohibits individuals with tuberculosis from

teaching school children. If an individual with dormant

tuberculosis challenges a private school's refusal to hire him or

her because of the tuberculosis, the private school would not be

able to rely on the city ordinance as a defense under the ADA.

Sections 1630.2(a)-(f) Commission, Covered Entity, etc. The

definitions section of part 1630 includes several terms that are

identical, or almost identical, to the terms found in title VII

of the Civil Rights Act of 1964. Among these terms are

"Commission," "Person," "State," and "Employer." These terms are

to be given the same meaning under the ADA that they are given

under title VII.

In general, the term "employee" has the same meaning that it is

given under title VII. However, the ADA's definition of

"employee" does not contain an exception, as does title VII, for

elected officials and their personal staffs. It should be further

noted that all state and local governments are covered by title

II of the ADA whether or not they are also covered by this part.

Title II, which is enforced by the Department of Justice, becomes

effective on January 26, 1992. See 28 CFR part 35.

The term "covered entity" is not found in title VII. However, the

title VII definitions of the entities included in the term

"covered entity" (e.g., employer, employment agency, etc.) are

applicable to the ADA.

Section 1630.2(g) Disability

In addition to the term "covered entity," there are several other

terms that are unique to the ADA. The first of these is the term

"disability." Congress adopted the definition of this term from

the Rehabilitation Act definition of the term "individual with

handicaps." By so doing, Congress intended that the relevant

caselaw developed under the Rehabilitation Act be generally

applicable to the term "disability" as used in the ADA. Senate

Report at 21; House Labor Report at 50; House Judiciary Report at

27.

The definition of the term "disability" is divided into three

parts. An individual must satisfy at least one of these parts in

order to be considered an individual with a disability for

purposes of this part. An individual is considered to have a

"disability" if that individual either (1) has a physical or

mental impairment which substantially limits one or more of that

person's major life activities, (2) has a record of such an

impairment, or, (3) is regarded by the covered entity as having

such an impairment.

To understand the meaning of the term "disability," it is

necessary to understand, as a preliminary matter, what is meant

by the terms "physical or mental impairment," "major life

activity," and "substantially limits." Each of these terms is

discussed below.

Section 1630.2(h) Physical or Mental Impairment

This term adopts the definition of the term "physical or mental

impairment" found in the regulations implementing Section 504 of

the Rehabilitation Act at 34 CFR part 104. It defines physical or

mental impairment as any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss affecting one or more

of several body systems, or any mental or psychological disorder.

The existence of an impairment is to be determined without regard

to mitigating measures such as medicines, or assistive or

prosthetic devices. See Senate Report at 23, House Labor Report

at 52, House Judiciary Report at 28. For example, an individual

with epilepsy would be considered to have an impairment even if

the symptoms of the disorder were completely controlled by

medicine. Similarly, an individual with hearing loss would be

considered to have an impairment even if the condition were

correctable through the use of a hearing aid.

It is important to distinguish between conditions that are

impairments and physical, psychological, environmental, cultural

and economic characteristics that are not impairments. The

definition of the term "impairment" does not include physical

characteristics such as eye color, hair color, left-handedness,

or height, weight or muscle tone that are within "normal" range

and are not the result of a physiological disorder. The

definition, likewise, does not include characteristic

predisposition to illness or disease. Other conditions, such as

pregnancy, that are not the result of a physiological disorder

are also not impairments. Similarly, the definition does not

include common personality traits such as poor judgment or a

quick temper where these are not symptoms of a mental or

psychological disorder. Environmental, cultural, or economic

disadvantages such as poverty, lack of education or a prison

record are not impairments. Advanced age, in and of itself, is

also not an impairment. However, various medical conditions

commonly associated with age, such as hearing loss, osteoporosis,

or arthritis would constitute impairments within the meaning of

this part. See Senate Report at 22-23; House Labor Report at

51-52; House Judiciary Report at 28-29.

Section 1630.2(i) Major Life Activities

This term adopts the definition of the term "major life

activities" found in the regulations implementing Section 504 of

the Rehabilitation Act at 34 CFR part 104. "Major life

activities" are those basic activities that the average person in

the general population can perform with little or no difficulty.

Major life activities include caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. This list is not exhaustive. For example,

other major life activities include, but are not limited to,

sitting, standing, lifting, reaching. See Senate Report at 22;

House Labor Report at 52; House Judiciary Report at 28.

Section 1630.2(j) Substantially Limits

Determining whether a physical or mental impairment exists is

only the first step in determining whether or not an individual

is disabled. Many impairments do not impact an individual's life

to the degree that they constitute disabling impairments. An

impairment rises to the level of disability if the impairment

substantially limits one or more of the individual's major life

activities. Multiple impairments that combine to substantially

limit one or more of an individual's major life activities also

constitute a disability.

The ADA and this part, like the Rehabilitation Act of 1973, do

not attempt a "laundry list" of impairments that are

"disabilities." The determination of whether an individual has a

disability is not necessarily based on the name or diagnosis of

the impairment the person has, but rather on the effect of that

impairment on the life of the individual. Some impairments may be

disabling for particular individuals but not for others,

depending on the stage of the disease or disorder, the presence

of other impairments that combine to make the impairment

disabling or any number of other factors. Other impairments,

however, such as HIV infection, are inherently substantially

limiting.

On the other hand, temporary, non-chronic impairments of short

duration, with little or no long term or permanent impact, are

usually not disabilities. Such impairments may include, but are

not limited to, broken limbs, sprained joints, concussions,

appendicitis, and influenza. Similarly, except in rare

circumstances, obesity is not considered a disabling impairment.

An impairment that prevents an individual from performing a major

life activity substantially limits that major life activity. For

example, an individual whose legs are paralyzed is substantially

limited in the major life activity of walking because he or she

is unable, due to the impairment, to perform that major life

activity.

Alternatively, an impairment is substantially limiting if it

significantly restricts the duration, manner or condition under

which an individual can perform a particular major life activity

as compared to the average person in the general population's

ability to perform that same major life activity. Thus, for

example, an individual who, because of an impairment, can only

walk for very brief periods of time would be substantially

limited in the major life activity of walking. An individual who

uses artificial legs would likewise be substantially limited in

the major life activity of walking because the individual is

unable to walk without the aid of prosthetic devices. Similarly,

a diabetic who without insulin would lapse into a coma would be

substantially limited because the individual cannot perform

major life activities without the aid of medication. See Senate

Report at 23; House Labor Report at 52. It should be noted that

the term "average person" is not intended to imply a precise

mathematical "average."

Part 1630 notes several factors that should be considered in

making the determination of whether an impairment is

substantially limiting. These factors are (1) the nature and

severity of the impairment, (2) the duration or expected duration

of the impairment, and (3) the permanent or long term impact, or

the expected permanent or long term impact of, or resulting from,

the impairment. The term "duration," as used in this context,

refers to the length of time an impairment persists, while the

term "impact" refers to the residual effects of an impairment.

Thus, for example, a broken leg that takes eight weeks to heal is

an impairment of fairly brief duration. However, if the broken

leg heals improperly, the "impact" of the impairment would be the

resulting permanent limp. Likewise, the effect on cognitive

functions resulting from traumatic head injury would be the

"impact" of that impairment.

The determination of whether an individual is substantially

limited in a major life activity must be made on a case by case

basis, without regard to mitigating measures such as medicines,

or assistive or prosthetic devices. An individual is not

substantially limited in a major life activity if the limitation,

when viewed in light of the factors noted above, does not amount

to a significant restriction when compared with the abilities of

the average person. For example, an individual who had once been

able to walk at an extraordinary speed would not be substantially

limited in the major life activity of walking if, as a result of

a physical impairment, he or she were only able to walk at an

average speed, or even at moderately below average speed.

It is important to remember that the restriction on the

performance of the major life activity must be the result of a

condition that is an impairment. As noted earlier, advanced age,

physical or personality characteristics, and environmental,

cultural, and economic disadvantages are not impairments.

Consequently, even if such factors substantially limit an

individual's ability to perform a major life activity, this

limitation will not constitute a disability. For example, an

individual who is unable to read because he or she was never

taught to read would not be an individual with a disability

because lack of education is not an impairment. However, an

individual who is unable to read because of dyslexia would be an

individual with a disability because dyslexia, a learning

disability, is an impairment.

If an individual is not substantially limited with respect to any

other major life activity, the individual's ability to perform

the major life activity of working should be considered. If an

individual is substantially limited in any other major life

activity, no determination should be made as to whether the

individual is substantially limited in working. For example, if

an individual is blind, i.e., substantially limited in the major

life activity of seeing, there is no need to determine whether

the individual is also substantially limited in the major life

activity of working. The determination of whether an individual

is substantially limited in working must also be made on a case

by case basis.

This part lists specific factors that may be used in making the

determination of whether the limitation in working is

"substantial." These factors are:

(1) the geographical area to which the individual has reasonable

access;

(2) the job from which the individual has been disqualified

because of an impairment, and the number and types of jobs

utilizing similar training, knowledge, skills or abilities,

within that geographical area, from which the individual is also

disqualified because of the impairment (class of jobs); and/or

(3) the job from which the individual has been disqualified

because of an 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 (broad range of jobs in

various classes).

Thus, an individual is not substantially limited in working just

because he or she is unable to perform a particular job for one

employer, or because he or she is unable to perform a specialized

job or profession requiring extraordinary skill, prowess or

talent. For example, an individual who cannot be a commercial

airline pilot because of a minor vision impairment, but who can

be a commercial airline co-pilot or a pilot for a courier

service, would not be substantially limited in the major life

activity of working. Nor would a professional baseball pitcher

who develops a bad elbow and can no longer throw a baseball be

considered substantially limited in the major life activity of

working. In both of these examples, the individuals are not

substantially limited in the ability to perform any other major

life activity and, with regard to the major life activity of

working, are only unable to perform either a particular

specialized job or a narrow range of jobs. See Forrisi v. Bowen,

794 F.2d 931 (4th Cir. 1986); Jasany v. U.S. Postal Service, 755

F.2d 1244 (6th Cir. 1985); E.E Black, Ltd. v. Marshall, 497 F.

Supp. 1088 (D. Hawaii 1980). On the other hand, an individual

does not have to be totally unable to work in order to be

considered substantially limited in the major life activity of

working. An individual is substantially limited in working if the

individual is significantly restricted in the ability to perform

a class of jobs or a broad range of jobs in various classes, when

compared with the ability of the average person with comparable

qualifications to perform those same jobs. For example, an

individual who has a back condition that prevents the individual

from performing any heavy labor job would be substantially

limited in the major life activity of working because the

individual's impairment eliminates his or her ability to perform

a class of jobs. This would be so even if the individual were

able to perform jobs in another class, e.g., the class of

semi-skilled jobs. Similarly, suppose an individual has an

allergy to a substance found in most high rise office buildings,

but seldom found elsewhere, that makes breathing extremely

difficult. Since this individual would be substantially limited

in the ability to perform the broad range of jobs in various

classes that are conducted in high rise office buildings within

the geographical area to which he or she has reasonable access,

he or she would be substantially limited in working.

The terms "number and types of jobs" and "number and types of

other jobs," as used in the factors discussed above, are not

intended to require an onerous evidentiary showing. Rather, the

terms only require the presentation of evidence of general

employment demographics and/or of recognized occupational

classifications that indicate the approximate number of jobs

(e.g., "few," "many," "most") from which an individual would be

excluded because of an impairment.

If an individual has a "mental or physical impairment" that

"substantially limits" his or her ability to perform one or more

"major life activities," that individual will satisfy the first

part of the regulatory definition of "disability" and will be

considered an individual with a disability. An individual who

satisfies this first part of the definition of the term

"disability" is not required to demonstrate that he or she

satisfies either of the other parts of the definition. However,

if an individual is unable to satisfy this part of the

definition, he or she may be able to satisfy one of the other

parts of the definition.

Section 1630.2(k) Record of a Substantially Limiting Condition

The second part of the definition provides that an individual

with a record of an impairment that substantially limits a major

life activity is an individual with a disability. The intent of

this provision, in part, is to ensure that people are not

discriminated against because of a history of disability. For

example, this provision protects former cancer patients from

discrimination based on their prior medical history. This

provision also ensures that individuals are not discriminated

against because they have been misclassified as disabled. For

example, individuals misclassified as learning disabled are

protected from discrimination on the basis of that erroneous

classification. Senate Report at 23; House Labor Report at 52-53;

House Judiciary Report at 29.

This part of the definition is satisfied if a record relied on by

an employer indicates that the individual has or has had a

substantially limiting impairment. The impairment indicated in

the record must be an impairment that would substantially limit

one or more of the individual's major life activities. There are

many types of records that could potentially contain this

information, including but not limited to, education, medical, or

employment records.

The fact that an individual has a record of being a disabled

veteran, or of disability retirement, or is classified as

disabled for other purposes does not guarantee that the

individual will satisfy the definition of "disability" under part

1630. Other statutes, regulations and programs may have a

definition of "disability" that is not the same as the definition

set forth in the ADA and contained in part 1630. Accordingly, in

order for an individual who has been classified in a record as

"disabled" for some other purpose to be considered disabled for

purposes of part 1630, the impairment indicated in the record

must be a physical or mental impairment that substantially limits

one or more of the individual's major life activities.

Section 1630.2(l) Regarded as Substantially Limited in a Major

Life Activity If an individual cannot satisfy either the first

part of the definition of "disability" or the second "record of"

part of the definition, he or she may be able to satisfy the

third part of the definition. The third part of the definition

provides that an individual who is regarded by an employer or

other covered entity as having an impairment that substantially

limits a major life activity is an individual with a disability.

There are three different ways in which an individual may satisfy

the definition of "being regarded as having a disability":

(1) The individual may have an impairment which is not

substantially limiting but is perceived by the employer or other

covered entity as constituting a substantially limiting

impairment;

(2) the individual may have an impairment which is only

substantially limiting because of the attitudes of others toward

the impairment; or

(3) the individual may have no impairment at all but is regarded

by the employer or other covered entity as having a substantially

limiting impairment. Senate Report at 23; House Labor Report at

53; House Judiciary Report at 29.

An individual satisfies the first part of this definition if the

individual has an impairment that is not substantially limiting,

but the covered entity perceives the impairment as being

substantially limiting. For example, suppose an employee has

controlled high blood pressure that is not substantially

limiting. If an employer reassigns the individual to less

strenuous work because of unsubstantiated fears that the

individual will suffer a heart attack if he or she continues to

perform strenuous work, the employer would be regarding the

individual as disabled.

An individual satisfies the second part of the "regarded as"

definition if the individual has an impairment that is only

substantially limiting because of the attitudes of others toward

the condition. For example, an individual may have a prominent

facial scar or disfigurement, or may have a condition that

periodically causes an involuntary jerk of the head but does not

limit the individual's major life activities. If an employer

discriminates against such an individual because of the negative

reactions of customers, the employer would be regarding the

individual as disabled and acting on the basis of that perceived

disability. See Senate Report at 24; House Labor Report at 53;

House Judiciary Report at 30-31.

An individual satisfies the third part of the "regarded as"

definition of "disability" if the employer or other covered

entity erroneously believes the individual has a substantially

limiting impairment that the individual actually does not have.

This situation could occur, for example, if an employer

discharged an employee in response to a rumor that the employee

is infected with Human Immunodeficiency Virus (HIV). Even though

the rumor is totally unfounded and the individual has no

impairment at all, the individual is considered an individual

with a disability because the employer perceived of this

individual as being disabled. Thus, in this example, the

employer, by discharging this employee, is discriminating on the

basis of disability.

The rationale for the "regarded as" part of the definition of

disability was articulated by the Supreme Court in the context of

the Rehabilitation Act of 1973 in School Board of Nassau County

v. Arline, 480 U.S. 273 (1987). The Court noted that, although

an individual may have an impairment that does not in fact

substantially limit a major life activity, the reaction of others

may prove just as disabling. "Such an impairment might not

diminish a person's physical or mental capabilities, but could

nevertheless substantially limit that person's ability to work as

a result of the negative reactions of others to the impairment."

480 U.S. at 283. The Court concluded that by including "regarded

as" in the Rehabilitation Act's definition, "Congress

acknowledged that society's accumulated myths and fears about

disability and diseases are as handicapping as are the physical

limitations that flow from actual impairment." 480 U.S. at 284.

An individual rejected from a job because of the "myths, fears

and sterotypes" associated with disabilities would be covered

under this part of the definition of disability, whether or not

the employer's or other covered entity's perception were shared

by others in the field and whether or not the individual's actual

physical or mental condition would be considered a disability

under the first or second part of this definition. As the

legislative history notes, sociologists have identified common

attitudinal barriers that frequently result in employers

excluding individuals with disabilities. These include concerns

regarding productivity, safety, insurance, liability, attendance,

cost of accommodation and accessibility, workers' compensation

costs, and acceptance by coworkers and customers.

Therefore, if an individual can show that an employer or other

covered entity made an employment decision because of a

perception of disability based on "myth, fear or stereotype," the

individual will satisfy the "regarded as" part of the definition

of disability. If the employer cannot articulate a

non-discriminatory reason for the employment action, an inference

that the employer is acting on the basis of "myth, fear or

stereotype" can be drawn.