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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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

July 6, 2017


Information Collection Clearance Division
U.S. Department of Education
400 Maryland Avenue SW
LBJ, Room 226-62
Washington, DC 20202-4537

Re: Consolidated Annual Report for the Carl D. Perkins Career and Technical Act of 2006 (OMB Control Number 1830-0569)

Dear Sir or Madam:

Thank you for the opportunity to comment on the Consolidated Annual Report for the Carl D. Perkins Career and Technical Act of 2006, published in the Federal Register on May 18, 2017.(1) We reviewed the report with interest.

As you know, the EEOC enforces the federal laws that prohibit employment discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information.(2) These laws also prohibit retaliation for filing a charge or complaint of discrimination, participating in a discrimination proceeding, or opposing discrimination.(3) Further, the EEOC coordinates and leads the federal government's efforts to eradicate unlawful employment discrimination.(4)

We have two recommendations with respect to the report. First, we recommend that the Department of Education revise the definition of "disability" to ensure that it is consistent with the changes made by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).(5)The report currently defines an individual with a disability as, among other things, an individual who is "regarded as having such impairment," referring to "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."(6) The ADAAA revised the "regarded as" definition to remove the requirement that an impairment be perceived to substantially limit a major life activity. Rather, an applicant or employee is now regarded as having a disability "if the individual establishes that he or she has been subjected to an action prohibited under [the ADAAA] 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).(7) This new standard focuses on whether a covered entity engaged in prohibited conduct based on an applicant's or employee's impairment, rather than on the covered entity's perception of the degree to which the impairment limits the applicant or employee. In addition, the ADAAA excludes impairments that are both transitory (defined as having "an actual or expected duration of 6 months or less") and minor from coverage under the "regarded as" prong.(8) Accordingly, we suggest that the Department of Education revise the "regarded as" definition to reflect more accurately the new standard for coverage under this prong. For example, the Department of Education could replace the current "regarded as" language with "being regarded as having an impairment that is not transitory (lasting or expected to last six months or less) and minor."

Second, consistent with the Individuals with Disabilities Education Act, we recommend that the Department of Education replace the reference to "a child with mental retardation" with "a child with an intellectual disability."(9)

Again, thank you for the opportunity to comment on the report. Please feel free to contact me at (202) 663-4637 with questions or comments.

Lisa Schnall
Senior Attorney Advisor
Office of Legal Counsel
Equal Employment Opportunity Commission


1 82 Fed. Reg. 22,816 (May 18, 2017).

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.; Titles I and V of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.; Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § § 791, 794a; 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 et seq.

3 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 42 U.S.C. § 12203(a); 29 U.S.C. § 791(f) (incorporating, among other provisions, the anti-retaliation provision of the Americans with Disabilities Act of 1990, as amended, 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 ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.

6 See Perkins Web Portal, Guide for Submitting the Consolidated Annual Report, pages 25 and 30.

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

8 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).

9 See Perkins Web Portal, Guide for Submitting the Consolidated Annual Report, page 25; 20 U.S.C. § 1401(3)(A)(i) (2016) (defining a "child with a disability" as, among other things, a child "with intellectual disabilities").

This page was last modified on October 17, 2017.