Federal Laws

• Jurisdiction: Maryland

I. FEDERAL LAWS

A. Principal Statutes and Regulations

The principal federal statutes prohibiting discrimination on the basis of disabilities are the Rehabilitation Act of 1973 (hereinafter RA), as amended, 29 U.S.C. §§ 701-718 (2012); the Americans with Disabilities Act of 1990 (hereinafter ADA), 42 U.S.C. §§ 12101-12214 (2012); and the ADA Amendments Act of 2008 (hereinafter ADAAA), Pub. L. No. 110-325, 122 Stat. 3553 (effective Jan. 1, 2009). "The Rehabilitation Act, as it applies to Federal employers, specifically incorporates the rights, remedies, and procedures of Title VII."¹

The ADA was modeled after the RA,² but contains far more details with respect to coverage, violations, and remedies.³ Congress enacted the ADAAA, effective Jan. 1, 2009, in reaction to Supreme Court decisions which had sharply limited the definition of "disability" under the ADA.⁴ The RA, 29 U.S.C. § 791(g), incorporates the standards of the ADA for determining violations, and "Section 705(20) of the Rehabilitation Act incorporates the ADA definition of a qualified individual with a disability for purposes of the anti-discrimination provisions in § 504."⁵

In 2011, the U.S. Equal Employment Opportunity Commission issued new regulations interpreting the ADA, as modified by the ADAAA.⁶

B. Covered Entities

A "covered entity" under the ADA means "an employer, employment agency, labor organization, or joint labor-management committee."⁷ The employer must employ at least 15 employees each working day for 20 or more calendar weeks.⁸ EEOC's regulations define "employer" generally as follows:

The term employer means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, from July 26, 1992, through July 25, 1994, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year and any agent of such person.⁹

The ADA extended coverage of the RA to state and local governments, as well as employers who do not necessarily receive federal contracts or grants.¹⁰

Further, an "agent" of a covered employer is treated as an employer under the ADA.¹¹ Individual supervisors are not liable under the ADA,¹² but "individuals who are responsible for the discriminatory decisions of organizations can be personally liable under the Rehabilitation Act."¹³

Americans with Disabilities Act claims against agencies of the state of Maryland are barred by the doctrine of sovereign immunity.¹⁴ However, the federal court has allowed an employment discrimination suit against the government under the RA.¹⁵

C. Persons Protected by the ADA

The ADA, as amended, 42 U.S.C. § 12102(1), defines "disability" to protect individuals in three basic situations, when the individual:

(A) [has] a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) [has] a record of such an impairment; or

(C) [is] being regarded as having such an impairment (as described in paragraph (3)).¹⁶

D. Persons Protected by the RA

In general the RA protects three classes of employees:¹⁷ (1) federal employees (excluding airport security screeners);¹⁸ (2) employees of federal contractors;¹⁹ and (3) employees of employers who have received federal grants or who are in programs or activities conducted by any federal executive agency or the U.S. Postal Service.²⁰ In addition, it covers students at educational institutions and patients at medical facilities that receive federal aid.²¹

The RA, 29 U.S.C. § 793(a), requires certain federal contractors and their subcontractors to "take affirmative action to employ and advance in employment qualified individuals with disabilities." The coverage of the RA thus extends to subcontractors whose contracts with federal contractors for procurement of personal property and non-personal services exceed $10,000.²² Individuals claiming violations of this section may file complaints with the Department of Labor.²³ The Secretary of Labor has delegated enforcement of § 503 to the Office of Federal Contract Compliance Programs.²⁴ Most circuits—including the Fourth—have held there is no implied private right of action under § 503 of the RA, 29 U.S.C. § 793.²⁵

E. Definitions of "Disability"

The most litigated issue under the disabilities laws before passage of the ADAAA was the definition of "disability." In cases decided in 1999 and 2002, the Supreme Court had sharply limited who was disabled under the ADA.²⁶ Now, under the ADAAA, it is much easier to establish that facet of a prima facie case.²⁷

The amendments created broad rules of construction regarding the definition of disability. They state as follows:

The definition of 'disability' in paragraph (1) shall be construed in accordance with the following:

(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.

(B) The term 'substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E) (i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as—

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(iii) As used in this subparagraph—

(I) the term 'ordinary eyeglasses or contact lenses' means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term 'low-vision devices' means devices that magnify, enhance, or otherwise augment a visual image.

42 U.S.C. § 12102(4)(A).

EEOC's implementing regulations, 29 C.F.R. § 1630.2(g), provide as follows:

(g) Definition of "disability."

(1) In general. Disability means, with respect to an individual—

(i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(ii) A record of such an impairment; or

(iii) Being regarded as having such an impairment as described in paragraph (l) of this section. This means that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both "transitory and minor."

(2) An individual may establish coverage under any one or more of these three prongs of the definition of disability, i.e., paragraphs (g)(1)(i) (the "actual disability" prong), (g)(1)(ii) (the "record of" prong), and/or (g)(1)(iii) (the "regarded as" prong) of this section.

(3) Where an individual is not challenging a covered entity's failure to make reasonable accommodations and does not require a reasonable accommodation, it is generally unnecessary to proceed under the "actual disability" or "record of" prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the "regarded as" prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. An individual may choose, however, to proceed under the "actual disability" and/or "record of" prong regardless of whether the individual is challenging a covered entity's failure to make reasonable accommodations or requires a reasonable accommodation.

29 C.F.R. § 1630.2(h) defines "physical or mental impairment" to mean:

(1) Any physiological disorder or condition, cosmetic disigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed "mental retardation"), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(i) Major life activities—

(1) In general. Major life activities include, but are not limited to:

(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others,²⁸ and working; and

(ii) The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

(2) In determining other examples of major

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