On August 11, 2016 the Department of Justice finally issued its regulations implementing the expanded definition of disability contained in the 2008 Americans with Disabilities Act Amendments. The actual content of the regulations, which apply to Titles II and III of the ADA, will already be familiar to most businesses because they are intended to be consistent with the EEOC’s 2011 regulations implementing the 2008 ADAA for Title I. Equally important, they appear after eight long years of lawsuits brought under the 2008 ADAA in which the courts and litigants had to wrestle with the meaning of the statute.
DOJ’s regulatory delay seems habitual. Only a few weeks ago DOJ announced that it was extending the public comment period for its Supplemental Advance Notice of Proposed Rulemaking concerning web accessibility under Title II, a regulation that has already been in the works for 6 years. Title III web access regulations are in limbo pending development of the Title II regulations. EEOC began it regulatory process in September of 2009, the same year the ADAA became effective. DOJ did not start the regulatory process until 2014. DOJ clearly has some internal management problem that prevents it from providing the disabled and business with the guidance they need. I would suggest that this is because the DOJ is really in the business of suing people, and both resources and accolades go to those who spend time in litigation. Writing regulations is probably a job with no recognition and no future to which DOJ’s management assigns its least able employees.
It is also interesting and disheartening to read in DOJ comments that:
The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation.
There is never an inherent tension between clarity and giving full effect to issues of legal interpretation. The statement above by DOJ is an implicit recognition of the obvious facat that the regulations are very poorly written. DOJ uses the phrase “includes, but is not limited to” in the definition of both “major life activity” and “physical or mental impairment.” This has the immediate effect of destroying any ability to find a limit to the scope of the regulations. The regulations unhelpfully state that the phrase “substantially limits” shall be interpreted to provide a lower degree of functional limitation than under the original ADA. How much lower? It’s anybody’s guess. Finally, some of the regulations appearing under the heading “rules of construction” (Section 36.105(a)(2)(iii) for example) are in fact simply observations or directions added without any consideration for the logical flow of the regulatory material. The regulations give every appearance of having been created by accretion, where exceptions were added to rules that were modified by conditions that generated more exceptions. This “whoops, what about such and such” approach creates a maze of words whose meaning is difficult or even impossible to discern.
A last observation concerns something DOJ itself noticed – a very large part of the material, including the analysis of cost, is relevant only to testing organizations and post-secondary eduction. In the world of ADA compliance there is a gap between the concerns of ordinary businesses and municipalities and the concerns of national testing organizations and institutions of higher eduction. For business the definition of disability under the ADA is not usually an important issue because the rules requiring accessibility apply even when no disabled customer exists, and the rules concerning reasonable modification must be applied on the spot without any opportunity to ask deep questions about whether the person is “really” disabled. The difficult problem of fair treatment for those with intellectual disabilities in areas where success is based on intellectual achievement affects only a small number of institutions, but has clearly taken the lion’s share of the resources put into these regulations.
DOJ’s inability to timely produce these regulations has made them largely unhelpful. We learned what the 2008 ADAA required from the EEOC and the courts, and these regulations do little to help clarify the state of the law or help businesses and disabled individuals understand their rights and obligations. Why DOJ is incapable of carrying out the statutory mandate to issue regulations is anybody’s guess, but until it can improve the timeliness of its regulatory procedures the process will mostly be a waste of time and money for everyone.