EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA/Rehab Act: Revised Definitions under the ADA Amendments Act of 2008

June 15, 2015

SUBMITTED VIA WWW.REGULATIONS.GOV

Adele Gagliardi
U.S. Department of Labor
Office of Policy Development and Research
200 Constitution Ave. NW
Room N-5641
Washington, DC 20210

Janet LaBreck
U.S. Department of Education
400 Maryland Ave. SW
Room 5086
Potomac Center Plaza
Washington, DC 20202-2800

Annie Leonetti
U.S. Department of Labor
Employment and Training Administration
Division of Youth Services – RExO
200 Constitution Ave. NW
Room N-4508
Washington, DC 20210

Re: Reintegration of Ex-Offenders-Adult Reporting System, Comment Request [OMB Control No. 1025-0455]; Workforce Innovation and Opportunity Act, Joint Rule for Unified and Combined State Plans, Performance Accountability, and the One-Stop System Joint Provisions, Notice of Proposed Rulemaking [RIN 1205-AB74; RIN 1830-AA21]; Workforce Innovation and Opportunity Act, Notice of Proposed Rulemaking [RIN 1205-AB73]; Workforce Innovation and Opportunity Act, Miscellaneous Program Changes, Notice of Proposed Rulemaking [Docket No. 2015-ED-OSERS-0002]; and the State Vocational Rehabilitation Services Program, State Supported Employment Services Program, Limitations on Use of Subminimum Wage, Notice of Proposed Rulemaking [Docket No. ED-2015-OSERS-0001]

Dear Ms. Gagliardi, Ms. LaBreck, and Ms. Leonetti:

The U.S. Equal Employment Opportunity Commission (EEOC) submits this comment in response to the request for comments on the Reintegration of Ex-Offenders-Adult Reporting System; the Workforce Innovation and Opportunity Act (WIOA) Joint Rule for Unified and Combined State Plans, Performance Accountability, and the One-Stop System Joint Provisions Notice of Proposed Rulemaking (NPRM); the WIOA NPRM; the WIOA Miscellaneous Program Changes NPRM; and the State Vocational Rehabilitation Services Program, State Supported Employment Services Program, Limitations on Use of Subminimum Wage NPRM.⁽¹⁾

As you know, the EEOC enforces the federal laws that prohibit employment discrimination on the basis of race, color, religion, sex, national origin, age, disability, and genetic information.⁽²⁾ The laws enforced by EEOC also prohibit retaliation for filing a charge or complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.⁽³⁾ Further, the EEOC is charged with coordinating and leading the federal government's efforts to eradicate unlawful workplace discrimination.⁽⁴⁾

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act of 1990, as amended (ADA) and, correspondingly, the Rehabilitation Act of 1973, as amended (Rehabilitation Act).⁽⁵⁾ As described in greater detail below, we recommend that the Department of Education (DOE) and the Department of Labor (DOL) review and revise the Reintegration of Ex-Offenders-Adult Reporting System forms, the WIOA NPRMs, and related regulations as necessary to ensure consistency with the changes made by the ADAAA.⁽⁶⁾ We also propose several grammatical or stylistic edits to the NPRMs.

We submit the following comments only to the extent that the terms and definitions identified in this comment are the same terms and definitions that are included in EEOC-enforced laws and regulations, and only to the extent that the terms and definitions apply in the employment context.

Recommendations Pursuant to the Americans with Disabilities Act Amendments Act of 2008

We suggest that DOE and DOL review and revise the following definitions and terms, as appropriate:

• "Physical or mental impairment" definition

As currently defined in the WIOA NPRMs, a "physical or mental impairment" is limited to a specified set of body systems.⁽⁷⁾ Under the Rehabilitation Act, however, a "physical or mental impairment" may affect any body system.⁽⁸⁾ We suggest that DOE and DOL ensure that the definition of "physical or mental impairment" appropriately reflects the broad scope of this term. For example, DOE and DOL might consider deleting "of the following" prior to "body systems" and adding ", such as" (or words to that effect) after "body systems": ". . . affecting one or more body systems, such as neurological, . . . ."

• "Major life activities" definition

The Reintegration of Ex-Offenders-Adult Reporting System form defines "major life activities" as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."⁽⁹⁾ The ADAAA expanded the definition of "major life activities" to include, among other things, major bodily functions.⁽¹⁰⁾ We suggest that DOL revise the form to reflect the new, broader definition of "major life activities." In addition, to provide further clarification regarding the new "major life activities" definition, we suggest that DOL consider specifying that: (1) the operation of a major bodily function includes the operation of an individual organ within a body system; (2) the term "major" shall not be interpreted strictly to create a demanding standard for disability; and (3) whether an activity is a "major life activity" is not determined by reference to whether it is of "central importance to daily life."⁽¹¹⁾

• "Regarded as" definition

The State Vocational Rehabilitation Services Program NPRM and WIOA Miscellaneous Program Changes NPRM define an individual with a disability as, among other things, an individual "[w]ho is regarded as having such an impairment," referring to "an impairment that substantially limits one or more major life activities" from the definition of an actual disability.⁽¹²⁾ The ADAAA revised the "regarded as" definition to remove the requirement that the impairment substantially limit a major life activity, or be perceived to do so.⁽¹³⁾ We suggest that DOE revise the "regarded as" definition to reflect the new standard for coverage under this prong.

The WIOA NPRM also includes a definition of an individual who is "[r]egarded as having . . . an impairment."⁽¹⁴⁾ DOL incorporated many of the changes made by the ADAAA into the "regarded as" definition, including the fact that individuals are not covered under this definition if they have an impairment that is transitory (an impairment that has an actual or expected duration of six months or less).⁽¹⁵⁾ However, the ADAAA states that impairments that are both transitory and minor are excluded from coverage under the "regarded as" prong [emphasis added].⁽¹⁶⁾ We thus suggest that DOL revise the "regarded as" definition to clarify that in addition to being transitory, impairments must be minor to be excluded from coverage under this prong.

Grammatical/Stylistic Comments

• "Individual with a disability" definition

The WIOA Miscellaneous Program Changes NPRM includes a definition of "individual with a disability" that appears to combine the definitions in statutes and regulations enforced by DOE and statutes and regulations enforced by EEOC.⁽¹⁷⁾7 In the event this was unintentional, we suggest that DOE add "and" at the end of subsection (1) and replace "and" with "or" at the end of subsection (2).

• BFOQ citations

The WIOA NPRM states that bona fide occupational qualifications (BFOQs) "must be interpreted narrowly in accordance with the Equal Employment Opportunity Commission regulations set forth at 29 CFR parts 1604, 1605, and 1627."⁽¹⁸⁾ While we agree that BFOQs should be interpreted narrowly and in accordance with our regulations, we note that our religious discrimination regulations do not currently reference BFOQs.⁽¹⁹⁾ DOL might consider referencing the relevant statutes (Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967), in addition to our regulations.

• "Labor laws" clarification

The WIOA Joint Rule NPRM includes a few references to "labor laws."⁽²⁰⁾ In some instances, the phrase "labor laws" may be not be perceived to encompass federal employment discrimination laws. DOE and DOL might consider adding "and employment" after labor, adding "discrimination" to the list of relevant regulations, or otherwise clarifying the scope of "labor laws," as appropriate.

• Internal cross-reference clarification

The WIOA Miscellaneous Program Changes NPRM includes a subsection regarding eligibility to receive services and benefit from activities conducted by eligible entities.⁽²¹⁾ The subsection refers to definitions in paragraphs (a) and (b) of Sec. 373.4.⁽²²⁾ The regulations currently in effect use letters to designate the relevant definitions.⁽²³⁾ The NPRM, however, appears to use numbers.⁽²⁴⁾

In the event that the NPRM accurately reflects the appropriate categorization of the definitions referenced in 34 CFR part 373.5, DOE might consider replacing "paragraph (a)" with "paragraph (1)" and "paragraph (b)" with "paragraph (2)" in 34 C.F.R. part 373.5.

• DOL nondiscrimination regulation citation

The WIOA NPRM refers to "Sec. 670.998 of this chapter."⁽²⁵⁾ We were unable to locate this section. Might DOL have intended to refer to Sec. 670.990 or Sec. 670.995?

• Employment testing program citation

The WIOA NPRM requires that states ensure that employment testing programs comply with, among other things, 29 CFR 1627.3(b)(iv).⁽²⁶⁾ We believe the correct citation is to 29 CFR 1627.3(b)(1)(iv).

Thank you for the opportunity to comment on the Reintegration of Ex-Offenders-Adult Reporting System forms and the WIOA NPRMs. Should you wish to discuss these comments, please contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579 or Senior Attorney Advisor Lisa Schnall at (202) 663-4845.

Sincerely,

/s/
Peggy R. Mastroianni
Legal Counsel

FOOTNOTES:

1 Comment Request for Information Collection for Reintegration of Ex-Offenders-Adult Reporting System, Extension With Revisions, 80 Fed. Reg. 17,787 (Apr. 2, 2015); Workforce Innovation and Opportunity Act; Joint Rule for Unified and Combined State Plans, Performance Accountability, and the One-Stop System Joint Provisions; Notice of Proposed Rulemaking, 80 Fed. Reg. 20,574 (Apr. 16, 2015); Workforce Innovation and Opportunity Act; Notice of Proposed Rulemaking, 80 Fed. Reg. 20,690 (Apr. 16, 2015); Workforce Innovation and Opportunity Act, Miscellaneous Program Changes, 80 Fed. Reg. 20,988 (Apr. 16, 2015); State Vocational Rehabilitation Services Program; State Supported Employment Services Program; Limitations on Use of Subminimum Wage, 80 Fed. Reg. 21,059 (Apr. 16, 2015).

2 See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), 29 U.S.C. § 791; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff.

3 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 29 U.S.C. § 791(g) (incorporating, among other provisions, the anti-retaliation provision of the Americans with Disabilities Act of 1990, as amended (ADA), into the Rehabilitation Act); 29 U.S.C. § 215(a)(3); 42 U.S.C. § 2000ff-6(f).

4 Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (June 30, 1978).

5 Americans with Disabilities Act Amendments Act, Pub. L. No. 110-325, 122 Stat 3553; 29 U.S.C. § 705(20)(B) (incorporating the ADA's definition of "individual with a disability" into the Rehabilitation Act).

6 For example, 29 C.F.R. § 32, 29 C.F.R. § 33, and 29 C.F.R. § 37 may not incorporate the changes made by the ADAAA. We note that the EEOC submitted comments on 29 C.F.R. § 37 to DOL on October 31, 2014.

7 See, e.g., 80 Fed. Reg. 20,988, 21,031 (proposing revisions to 34 C.F.R. § 371.6); 80 Fed. Reg. 21,059, 21,107 (proposing revisions to 34 C.F.R. §361.5). See also 80 Fed. Reg. 20,690, 20,836, 20,918, 20,937 (referencing nondiscrimination requirements in 29 C.F.R. § 37.4, 29 C.F.R. § 33, and 29 C.F.R. § 32, all of which include a similar, if not identical definition of "physical or mental impairment").

8 See 29 C.F.R. § 1630.2(h)(1) (defining "physical or mental impairment" as "[a]ny physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, . . . .") (emphasis added).

9 See Dep't of Labor, RExO-Adult Reporting Handbook, Attachment A, at 6.

10 Pub. L. No. 110-325, § 4(a), 122 Stat 3553 (clarifying that "major life activity" includes "the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions"); 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(i).

11 See 29 C.F.R. § 1630.2(i) (referencing Congressional intent to invalidate the "demanding standard for qualifying as disabled" established in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002)).

12 See, e.g., 80 Fed. Reg. 21,059, 21,106 (proposing revisions to 34 C.F.R. § 361.5); 80 Fed. Reg. 20,988, 21,039 (proposing revisions to 34 C.F.R. § 373.4).

13 Pub. L. No. 110-325, § 4(a), 122 Stat 3553 (stating that an individual has established coverage under the "regarded as" prong "if the individual establishes that he or she has been subjected to an action prohibited under this Act 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.") (emphasis added); 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(g)(1)(iii); 29 C.F.R. § 1630(l)(1).

14 80 Fed. Reg. 20,690, 20,925 (proposing revisions to 20 C.F.R. § 688.120).

15 Id.

16 Pub. L. No. 110-325, § 4(a), 122 Stat. 3553; 42 U.S.C. § 12102(3)(B); 29 C.F.R. § 1630.2(g)(1)(iii).

17 80 Fed. Reg. 20,988, 21,047 (proposing revisions to 34 C.F.R. § 385.4).

18 80 Fed. Reg. 20,690, 20,932 (proposing revisions to 20 C.F.R. § 651.10).

19 29 C.F.R. § 1605.

20 80 Fed. Reg. 20,574, 20,641, 20,661, 20,680 (proposing revisions to 20 C.F.R. § 678.435, 34 C.F.R. § 361.435, and 34 C.F.R. § 463.435).

21 80 Fed. Reg. 20,988, 21,040 (proposing revisions to 34 C.F.R. § 373.5).

22 Id.

23 34 C.F.R. § 373.4.

24 80 Fed. Reg. 20,988, 21,039.

25 80 Fed. Reg. 20,690, 20,918 (proposing revisions to 20 C.F.R. § 686.960).

26 80 Fed. Reg. 20,690, 20,937 (proposing revisions to 20 C.F.R. § 652.8).

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