Symptoms and mitigating measures: the new ADA Catch-22

The previous posting reported a change EEOC made to its proposed ADA Amendments Act regulations that will positively affect persons who have, or are believed to have, certain disabilities, by explicitly including "psychotherapy" (and implicitly including other "human-mediated treatments") in the list of "mitigting measures" that may be used succesfully without destroying the law's protection. This posting will, by contrast, report a change EEOC made to its proposed regulation which will negatively impact many persons, and will certainly increase the cost and complexity of many ADA suits by creating a new "catch 22" for employees and job applicants.

In its September 2009 NPRM, EEOC had proposed language clarifying that, where an employer discriminates against an employee or applicant on the basis of a "symptom" of an impairment, or on the basis of a "mitigating measure" the person uses to reduce the severity of an impairment, that discrimination falls within the third ("regarded as disabled") prong of the definition of a disability and is covered by the ADA. This clarification of the coverage of the third prong would generally have prevented employers from evading the law by saying, for example, "we didn't fire you because we learned you're diabetic, we fired you because you use insulin."

EEOC invited public comment with regard to this change, and received numerous comments. Unfortunately, employer comments were stridently opposed to the proposed language about "symptoms" and "mitigating measures," generally expressing fear that inclusion of the langauge would require them to provide employees "mitigating measures" for their disabilities as "reasonable accommodations" at the employers' expense. This position was nonsensical, in that the language proposed in the NPRM would have clarified the coverage of the "regarded as disabled" prong of the definition only,and the ADAAA statute itself clarified that no employer ever has an obligation to provide a "reasonable accommodation" when the employee's claim is that he or she does not have an actual disabling impairment but was merely "regarded as disabled" by the employer. (Indeed, I argued this issue in a public comment I filed with EEOC.)

Unfortunately, EEOC ultimately agreed with the employers' position that the issue was too complicated to be clarified in a regulation:

In response to a specific request in the preamble to the NPRM, the Commission received many comments about the position in the proposed rule that actions taken because of an impairment’s symptoms or because of the use of mitigating measures constitute actions taken because of an impairment under the "regarded as" prong. Individuals with disabilities and organizations representing them for the most part endorsed the position, noting that the symptoms of, and mitigating measures used for, an impairment are part and parcel of the impairment itself, and that this provision is necessary to prevent employers from evading "regarded as" coverage by asserting that the challenged employment action was taken because of the symptom or medication, not the impairment, even when it knew of the connection between the two. Others asked the Commission to clarify that this interpretation applied even where the employer had no knowledge of the connection between the impairment and the symptom or mitigating measure. However, employers and organizations representing employers asked that this language be deleted in its entirety. They were particularly concerned that an employer could be held liable under the ADA for disciplining an employee for violating a workplace rule, where the violation resulted from an underlying impairment of which the employer was unaware.

In light of the complexity of this issue, the Commission believes that it requires a more comprehensive treatment than is possible in this regulation. Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the "regarded as" prong. No negative inference concerning the merits of this issue should be drawn from this deletion. The Commission’s existing position, as expressed in its policy guidance, court filings, and other regulatory and sub-regulatory documents, remains unchanged.

76(58) Fed. Reg. 16978, 16985 (Friday, March 25, 2011).

In spite of the preamble's warning that "no negative inference concerning the merits of this issue should be drawn" from the omission, we can be certain that any courts that were previously hostile to the ADA will, in fact, draw such negative inferences. This will lead to the kind of hair-splitting over whether individuals with certain disabilities are actually within the coverage of the ADA that the ADAAA was intended to eliminate. It will also likely lead to many individuals who should be protected under the ADAAA actually, in practical effect, being left out.

This is not to say that, in most situations, there won't be ways to get around EEOC's omission in court, after the damage is done. For example, in the previously stated hypothetical of an employee fired for "using insulin," once the employee gets to court he or she could certainly argue under the "actul disability" prong that diabetes is intended to be covered as a disability under the ADAAA, that use of insulin is legitimate "mitigating measure," and therefore the employer should be required to permit(note, not pay for, just permit)the employee to use insulin as a "reasonable accommodation." Thus, after being forced to convert what should have been a realtively simple claim under the "regarded as disabled" prong into a much more complicated "reasonable accommodation" claim under the "actual disability" prong, the hypothetical diabetic employee should win in court (after, regrettably, first being fired). A similar approach will be available to most, though not all, persons discriminated against by an employer who cites a "mitigating measure" as its grounds for its adverse decision. The employer's citation of the mitigating measure instead of the disability will convert a simple claim under the third prong into a complicated "reasonable accommodation" claim under the first prong.

The EEOC's omission of "mitigating measures" in themselves from the coverage of the third prong also creates a new catch-22 for employees and applicants in many situations. Consider the hypothetical case of a prospective employee with a record of alcoholism, reflected in some public record, but no current use. In this sitution, an employer may ask "do you attend Alcoholics Anonymous?" If the applicant answers "yes," he may be rejected because he attends AA (which shows, the employer will say, that there is still a risk of relapse). If the applicant answers "no," she may be rejected on the grounds of still being "in denial" of her condition. It should not be difficult to see that similar sorts of questions about treatment could be adapted to reject 100% of all applicants who an employer knows (through whatever means)or believes to have a disability to which the employer strongly objects. If the applicant is still receiving treatment, it shows continuing risk; if the applicant is not receiving treatment, it shows culpable "denial."

The regulatory omission of "symptoms" from the coverage of the third prong will also convert what should have been relatively simple claims under the third prong into much more complicated claims under the first prong. The issues presented by these claims under the first prong will generally be 1) whether the "symptoms" cited by the employer are severe enough to qualify as actual disabilities in and of themselves, 2) whether the employer actually knew of the underlying diability, and 3) if the employer actually knew of the underlying disability, whether its citation of only a symptom as its grounds for adverse action was pretextual. Proving any of these things is likely to be very difficult in most cases.



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