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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

An EEOC Office of Legal Counsel staff member wrote the following informal discussion letter in response to a Federal Register notice. This letter is intended to provide an informal discussion of the noted issue(s) and does not constitute an official opinion of the Commission.

ADA/Rehab Act: Definition of Disability

January 30, 2019

Information Collection Clearance Division
U.S. Department of Education
550 12th Street SW
PCP, Room 9088
Washington, DC 20202-0023

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

Dear Sir or Madam:

This letter pertains to the Consolidated Annual Report for the Carl D. Perkins Career and Technical Act of 2006, published in the Federal Register on November 8, 2018.[1]  On July 6, 2017, the EEOC submitted a comment substantially similar to the one below regarding this information collection.  In a letter received by the EEOC on August 1, 2017, Sharon Miller, Director of the Division of Academic and Technical Education in the Office of Career, Technical, and Adult Education at the U.S. Department of Education, acknowledged our comment and confirmed that the Consolidated Annual Report was revised accordingly.  Because those revisions do not appear in the draft of the report published for public comment, we are resubmitting our primary recommendation for consideration by the Department of Education.

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 recommend that the Department of Education revise the definition of "disability" in the Consolidated Annual Report to ensure that it is consistent with the changes made by the ADA 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 an 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.  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 more accurately reflect 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 a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor."

Thank you for the opportunity to comment on the report.  Please feel free to contact me with questions or comments.


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


[1] 83 Fed. Reg. 55,878 (Nov. 8, 2018).  While we understand that the comment deadline was January 7, 2019, the government shutdown prevented us from submitting this comment by that date.  Prior to the deadline, on December 21, 2018, we requested an extension in the event of a shutdown.  We appreciate the Department of Education's consideration of our comment.

[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 The Carl D. Perkins Career and Technical Education Act of 2006, as amended by the Strengthening Career and Technical Education for the 21st Century Act (Perkins V), Guide for the Submission of Consolidated Annual Reports, page 27.

[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).

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