U.S. Equal Employment Opportunity Commission
Commission Meeting of December 11, 2008 - on Implementing ADA Amendments Act of 2008
NAOMI C. EARP Chair
STUART J. ISHIMARU Commissioner
CHRISTINE M. GRIFFIN Commissioner
CONSTANCE S. BARKER Commissioner
RONALD COOPER General Counsel
REED RUSSELL Legal Counsel
BERNADETTE B. WILSON Program Analyst
This transcript was produced from a video tape provided by the Equal Employment Opportunity Commission.
CHAIR EARP: Good afternoon, everyone. The meeting will now come to order. Thank you all for being here. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberation and voting.
At this time, I'm going to ask Bernadette Wilson to make the announcements. Ms. Wilson?
MS. WILSON: Good afternoon, Madam Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. We(d like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible. Also, please take this opportunity to turn your cell phones off, or to vibrate mode.
I would also like to remind the audience that in addition to the elevators, in case of emergency there are stairways down the halls to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right.
There were no actions approved by the Commission during the period November 20, 2008 through December 10, 2008.
CHAIR EARP: Thank you, Ms. Wilson. Do I hear a motion?
COMMISSIONER ISHIMARU: So moved.
CHAIR EARP: Is there a second?
COMMISSIONER BARKER: Second.
CHAIR EARP: Any discussion? Hearing none, all those in favor, please say aye.
CHAIR EARP: Opposed? The ayes have it, and the motion is carried.
Thank you again, Ms. Wilson.
We are here today to discuss and deliberate changes to EEOC's regulations based on the ADA Amendments Act. The ADA Amendments Act of 2008, signed into law by President Bush on September 25, 2008, is a landmark piece of legislation representing a hard won compromise between the employer and the disability communities.
The shared goal of these communities was to correct an overly restrictive interpretation that had been given to the ADA. Part of the Amendments Act calls on EEOC to revise its own ADA regulations. In particular, those regulations defining the term, “substantially limits”.
The Act also grants EEOC express authority to define the other terms in the ADA Amendments Act. In my view, the Act also puts pressure on EEOC to revise its regulations on an abbreviated schedule. The ADA Amendments Act explicitly or effectively rejected certain of EEOC's existing ADA regulations. In addition, the legislation set an effective date of January 1, 2009.
The Administrative Procedure Act, which governs the process for issuing regulations, gives EEOC two options for issuing regulations like those being considered today. The more traditional route is for the Agency to issue a notice of proposed rulemaking, or the NPRM.
In this process, the Agency receives and evaluates comments from the public, and then issues a final rule. In the final rule, the Agency responds to the comments received, and explains what, if any, changes it made. In certain circumstances where there is insufficient time to use the NPRM process, the Administrative Procedure Act permits agencies to issue an Interim Final Rule. In this process, the Interim Final Rule takes effect when it is issued, but allows for comments from the public, and issuance of a final rule in the same fashion as an NPRM.
I was satisfied that the situation with the ADA Amendments Act met the criteria for issuance of an Interim Final Rule. However, objections to that approach were raised, including that it would not allow sufficient opportunity for comments.
Those objectors, such as the American Association for People with Disabilities, said, in effect, that they wanted an opportunity to review the proposed regulations before they take effect. It has been my goal throughout the development of the regulations to work with the same spirit of compromise that led to the passage of the ADA Amendments Act.
Further, I am very interested in receiving input from the public, and believe it serves a useful purpose for EEOC to hear from all of its stakeholders on this matter. So, although I think we had a good cause to issue an Interim Final Rule, I agree to submit for consideration an NPRM instead of a final rule.
Because of the importance of this legislation and the regulations that EEOC is considering, I think it is useful to allow the public the opportunity to hear about the development of the regulations. This includes the proposal that the Office of Legal Counsel has prepared, as well as the deliberation of the Commissioners.
Today we have with us as presenters from the Office of Legal Counsel, Peggy Mastroianni and Chris Kuczynski. I would like to take this opportunity to thank them, as well as the rest of the OLC staff and Reed Russell, the Director, as well as the Office of General Counsel, the Office of Field Programs, the Office of Federal Operations, who have also worked very diligently with the Office of Legal Counsel to prepare this NPRM.
Peggy and Chris, I(ll ask you to come forward. Thank you in advance again for your presentation, and Peggy, let's start with you.
MS. MASTROIANNI: Okay. Good afternoon. I'm Peggy Mastroianni. I'm Associate Legal Counsel at the EEOC. And the Office of Legal Counsel, where I work, drafted the rule and appendix that is before the Commission.
I am here to tell you something about the process that led to this draft, and then Chris will deal with the substance of the rule.
Ever since it became apparent that the ADA Amendments Act would become law, our goal has been to provide guidance that would be in place on its effective date, January 1, 2009.
In August of this year, after the House passed the Act, and it was introduced in the Senate, the Office of Legal Counsel identified the existing EEOC regulations that would have to be amended if the Act were signed into law, and began the drafting of the rule itself.
Following September 25th, when the Act was signed into law, we circulated a draft rule and appendix to EEOC's Office of General Counsel, Office of Federal Operations, and Office of Field Programs. A very intense coordination followed with these offices, in which the draft underwent numerous changes. By the end of October, we had reached consensus with all of these program offices.
The draft underwent further revision as the result of an October 28th meeting, which was convened by Commissioner Griffin with the lead negotiators of the ADA Amendments Act.
At that meeting, we heard from representatives of the American Association for People with Disabilities, NCIL, the National Disability Rights Network, the Bazelon Center, the Epilepsy Foundation, the Chamber of Commerce, SHRM, the HR Policy Association, and Professor Chai Feldblum.
This meeting ended up being crucial in developing language in the rule that, for example, focuses in the explanation of substantially limits on the condition, manner, and duration under which a major life activity can be performed;
Language that replaces the, “average person in the general population” as the basis for comparison for determining whether an impairment “substantially limits” a major life activity, with the term, “most people in the general population”;
Language that emphasizes that the major life activity of working should only be considered as a last resort;
And language clarifying that one need not be an individual with a disability to have standing to challenge uncorrected vision standards.
Following the October 28th meeting, we circulated a draft of the rule and appendix to the Commission for a briefing period. We met twice in November with Commissioners and their staffs for painstaking reviews of the language in the rule and appendix implementing the Act.
On November 20th, and again on November 26th, we circulated revisions of the rule and appendix to the Commission, which addressed various comments we received from the Commissioners and their staffs during the briefing period. After addressing further comments from the Commission, we circulated a draft rule and appendix on December 3rd for a vote.
Following further meetings with Commissioners early this week, we circulated a revised voting package that characterized the draft as a Notice of Proposed Rulemaking, rather than as an Interim Final Rule. This is the proposal before the Commission now.
If the Commission approves this Notice of Proposed Rulemaking, it will go to OMB for review, and then, once that review is over, it will be published in the Federal Register for notice and comment. Following the notice and comment process, a draft Final Rule would then go before the Commission again for a vote, to be followed by a final OMB review and publication.
And now, Chris Kuczynski will review the substance of the proposed rule and appendix.
MR. KUCZYNSKI: Good afternoon, Madam Chair and Commissioners. Peggy has given you the background leading up to the drafting and development of the revised regulation and interpretive guidance, or appendix to the regulation. I will go through the various sections of the regulation and accompanying sections of the interpretive guidance that have been revised since the ones issued on July 26, 1991. First, we revised --
COMMISSIONER ISHIMARU: Madam Chair, Madam Chair, I would raise a point of order. This is subject to the privilege that the Commission consistently raises regarding pre, predeter, pre, what's the proper term? Pre-decisional disclosure. And I, for one, am troubled by the fact that we are having this meeting on this draft. And I would make a motion that, if we are going to hear this presentation, that we explicitly waive our pre-decisional privilege, because this document will be disclosed to the public for the first time, and frankly, I'm not ready to do that.
I would ask that we explicitly set forth the fact that we, in this case, are waiving it, because this is a privilege that we guard zealously in everything else we do. So, I so move that we affirmatively waive the privilege in this case so we can hear this presentation.
CHAIR EARP: Is the motion proper? I just want to make sure it's stated properly for the record so that we can ask for a second, and otherwise follow the procedure.
MR. RUSSELL: I don't think there(s any problem with the motion in its form.
CHAIR EARP: Okay. Would you state the motion?
MR. RUSSELL: If the Chair asks me a question, I'll be happy to answer it.
COMMISSIONER ISHIMARU: I would point out that Mr. Russell serves in this role as our parliamentarian. If he's going to put on his Legal Counsel hat to talk about the substance, I would not object to that.
CHAIR EARP: No, no. If the motion is appropriate, and he says it is, then the next step is to ask for a second of the motion.
COMMISSIONER ISHIMARU: Right.
COMMISSIONER GRIFFIN: All right. I'll second the motion so we can discuss this.
CHAIR EARP: Do we have the motion for the record, Ms. Wilson? Do we know what the motion is for the record?
MS. WILSON: We will record it as it is stated.
CHAIR EARP: Okay.
COMMISSIONER ISHIMARU: So the motion is, just to be clear, that we explicitly waive our pre-decisional privilege, so that Mr. Kuczynski could make the presentation, just as, if we wanted to release the document before we voted to approve it, which we rarely, if ever do because we have not adopted it yet.
So for Mr. Kuczynski to give the presentation serves in the same role as releasing the document, so I want to make clear that the Commission explicitly waives, in this case, its privilege, so we can preserve the privilege for the future.
CHAIR EARP: Okay. The motion is stated. Do I hear a second?
COMMISSIONER GRIFFIN: I(ll second the motion.
CHAIR EARP: Discussion?
COMMISSIONER BARKER: Yes, I have a question. Stuart, for my information, is this something that we have done before? Your concern is that by, supposedly or possibly releasing information about the document through the oral presentation before there(s a vote, then argument can be made that we are waiving our privilege in general, not just for future --
COMMISSIONER ISHIMARU: Both, both. We would be waiving it for this document for this issue, and we very well could be waiving it generally by the practice of talking about it before the Commission actually approves it. It is unclear to me whether, in this instance, whether there are the votes to actually approve this.
So by talking about it here, if it does not get approved, we have set forward what we have thought about doing, yet it isn't approved. So that(s basically opening up our thought process, which we(ve zealously guarded in the past.
COMMISSIONER BARKER: Okay. So is this something the Commission has done before? Has there been a vote like this before, or has this been a concern? Is this a routine thing, because I'm just not aware of it.
COMMISSIONER ISHIMARU: I'm not sure if we(ve ever voted on anything like this.
COMMISSIONER BARKER: Can I ask Reed? Reed, what is your recollection or knowledge of that?
MR. RUSSELL: I mean, I can just off the top of my head think of, for example, the regulations under 1614 that were presented, what the changes in the regulations would be, and then they were voted on. We obviously don't know until a vote is called for what the result is going to be of the vote.
So those were presented much as these will be presented. And I don't think you(d be waiving any privilege, or it certainly hasn't been necessary to approve a waiver of the privilege in those prior circumstances.
I think this was also the case with, if not with the NPRM, the final rule on retiree health under ADEA, where the rule itself was presented, including the preamble discussion at an open Commission meeting, and then voted on, and discussion had about the rule at a public meeting.
So I don't know of an instance in the past where it(s been required for you to waive the privilege to discuss what the proposal is before the Commission.
COMMISSIONER ISHIMARU: I'm certainly not saying that it's required that we do this. I'm trying to guard the prerogative of the Commission to keep it pre-decisional, back and forth privileged.
And I would note that, in other contexts, when the religious guidance came up, and I raised the possibility that, instead of having a meeting to vote to approve it, that we put it out there so the public could see what we were considering.
And the argument was made back to me that this is a pre-decisional document, and that we should, until we actually adopt it, we should not place it in the public domain, because there may be changes that may be made.
And here, the same principles apply. So what I wanted to do was to get a clear expression by the Commission that we, in fact, are waiving any pre-decisional rights we have here by having a presentation made.
COMMISSIONER GRIFFIN: And actually, in fact, when we did do the religious guidance, you just reminded me, everything was couched in terms of, you know, if we were going to do this, we might say this, and it was very broad, and there wasn't, you know --
COMMISSIONER ISHIMARU: Well, we had public discussions about what could be in guidance.
COMMISSIONER GRIFFIN: Right.
CHAIR EARP: Peggy, was the religious guidance a regulation or manual chapter?
MS. MASTROIANNI: It was a compliance manual chapter.
CHAIR EARP: Okay.
COMMISSIONER GRIFFIN: But even that, that proves it even more. I mean, we were very careful with that, and now this is, we're talking about a regulation.
MS. MASTROIANNI: We were very careful when we had meetings prior to the Commission meeting at which it was voted on, where we had meetings with stakeholders. We were very careful there not to --
COMMISSIONER GRIFFIN: But we were at the meeting, too.
MS. MASTROIANNI: But at the meeting itself, I believe we went through what was in the document.
COMMISSIONER GRIFFIN: My recollection was that Jean gave the exact same presentation at the Commission meeting that she gave at the stakeholders. It was all couched in terms of “if we”, because we hadn't passed it.
COMMISSIONER BARKER: Well, I guess my question is, by waiving this, are you asking that we do release the document, regardless of the vote?
COMMISSIONER ISHIMARU: No. Well, it depends on what the vote is.
COMMISSIONER Barker: Well I guess what I'm asking is, if the vote is not to approve, are you suggesting that, by waiving this, we should release the document, or should not release the document?
COMMISSIONER ISHIMARU: If this vote fails -- if this vote fails, and if there(s a vote subsequently to approve the NPRM, the NPRM would be released --
COMMISSIONER BARKER: At that time?
COMMISSIONER BARKER: Well, I'm not sure at that time, because that(s something that(s also shifted with the winds, as well, because it goes to OMB next for OMB review, and then it's published in the Federal Register, obviously, then publicly released. There have been times in the past, for reasons that I don't quite understand where, once we talk about it at the meeting, there(s been a decision made to release the document, even though it isn't yet ready for public viewing, but we've done that under some logic that I frankly can't explain to you, because I don't understand it.
COMMISSIONER BARKER: So what you want to do is just clarify that, through the presentation -- by allowing the presentation today, we are not waiving any right we may have to --
COMMISSIONER ISHIMARU: That we knowingly are doing it, in this case. And I don't want to create a precedent that we do this generally, or we do it when people feel like it, and yet we don't do it. I just want to try to keep a consistent practice in whatever we do.
COMMISSIONER BARKER: You just want to make sure that, by whatever the presentation is today, we aren't somehow suggesting that we are obligated to then release the document.
COMMISSIONER ISHIMARU: Right.
COMMISSIONER BARKER: Okay. Is there any downfall, is there any downside to the motion?
MR. RUSSELL: We don't see any.
COMMISSIONER BARKER: Okay.
CHAIR EARP: Further discussion? Do you have discussion, Commissioner Griffin?
COMMISSIONER GRIFFIN: No.
CHAIR EARP: Can we call for a vote? All those in favor that today's deliberations on the NPR involving amendments to the ADA does not constitute for ever after this that the EEOC has waived --
COMMISSIONER ISHIMARU: Madam Chair, I would stand by my original statement of the question, which is that we are voting now to expressly waive the privilege.
CHAIR EARP: Okay.
COMMISSIONER ISHIMARU: Okay.
CHAIR EARP: Okay. Okay.
COMMISSIONER ISHIMARU: And that's all that this is meant to do. Do we yes or no waive the privilege.
CHAIR EARP: Okay.
COMMISSIONER ISHIMARU: And if we do waive the privilege, Mr. Kuczynski could talk about the substance, and if we don't, we would go on to questions.
CHAIR EARP: Okay. What's your comment, Legal Counsel?
MR. RUSSELL: Just that the waiver is just with respect to the document and his presentation. That's a narrow waiver.
COMMISSIONER ISHIMARU: Well, right. It would go to the presentation and to the document.
MR. RUSSELL: Right.
COMMISSIONER ISHIMARU: Which we weren't planning to release until it was actually approved, is my understanding.
CHAIR EARP: Okay. Probably we need for the exact motion to be reread, unless, Stuart, you can state it exactly as you recall it.
COMMISSIONER ISHIMARU: Well, I don't know if we have the capability of restating it, given that we create a transcript after the meeting, and I(ve stated it, probably inconsistently, twice.
CHAIR EARP: Yes.
COMMISSIONER ISHIMARU: So I'm reluctant to state it a third time, which no doubt will be inconsistent, as well, as somebody will no doubt point out to me after the meeting.
COMMISSIONER BARKER: Well I, for one, need to know what the motion is at this point. Can you restate it as best as you can recall?
COMMISSIONER ISHIMARU: Well, the motion would be that we expressly waive our pre-decisional privilege in this instance by allowing Mr. Kuczynski to make his presentation on the substance of the proposed NPRM. And that's basically it.
And as Mr. Russell pointed out, it's a narrow motion that would only go to Mr. Kuczynski(s presentation, and at most, would go to the document that we weren't planning to release, as well. I think that satisfies Mr. Russell's concern of it being narrowly tailored.
CHAIR EARP: Okay. We'll take a voice vote. Those in favor of the motion proposed by Commissioner Ishimaru, as stated by Commissioner Ishimaru, signify yes by saying aye. In order of seniority, we'll start with Commissioner Ishimaru.
COMMISSIONER ISHIMARU: No.
CHAIR EARP: You are voting no on your motion?
COMMISSIONER ISHIMARU: On my motion, right.
CHAIR EARP: Okay.
Commissioner Griffin.COMMISSIONER GRIFFIN: No.
CHAIR EARP: Okay. Commissioner Barker.
COMMISSIONER BARKER: It sounds to me like you(ve effectively withdrawn your motion, but I(m certainly not --
COMMISSIONER ISHIMARU: No, I didn't.
COMMISSIONER BARKER: If you are proposing an action, and then withdrawing your proposal, then --
COMMISSIONER ISHIMARU: No, I'm not withdrawing my proposal. I'm making clear that I'm not in favor of it. But the Commission needs to act one way or the other. I'm not withdrawing the proposal.
COMMISSIONER BARKER: Okay. I vote against.
CHAIR EARP: You vote yes?
COMMISSIONER BARKER: Vote against. There is no reason to vote for the motion if the Commissioner who made the motion has withdrawn -- is voting against it.
CHAIR EARP: So a majority that votes with Commissioner Ishimaru --
COMMISSIONER BARKER: His motion just doesn't pass, and we(re back to square one.
COMMISSIONER ISHIMARU: No.
COMMISSIONER BARKER: There(s not an affirmative motion out there.
COMMISSIONER ISHIMARU: No. The motion would be to affirmatively waive the privilege.
COMMISSIONER BARKER: Right.
COMMISSIONER ISHIMARU: If this fails --
COMMISSIONER BARKER: It means that there(s no affirmative waiver, and then it's up to -- it's a legal question whether there was, you know, a waiver, although there was no affirmative action to officially waive it. And we(re back to square one.
COMMISSIONER ISHIMARU: No. We(re at a point where the presentation cannot be made.
COMMISSIONER BARKER: No, I think that's a different question.
COMMISSIONER ISHIMARU: Well, that's --
COMMISSIONER BARKER: Well, let's continue with the vote, and then we'll get a legal opinion on it. Okay. I vote opposed.
CHAIR EARP: Okay. I don't know exactly where we are. Commissioner Barker, you're voting, no, that you do not vote to continue with this discussion.
COMMISSIONER BARKER: To continue --
CHAIR EARP: To allow Chris Kuczynski --
COMMISSIONER BARKER: No, that's not what I'm voting against. I'm voting against Commissioner Ishimaru's specific motion that says that we waive his -- his suggestion is that we go on record as waiving this privilege. There are subsequent motions that could follow his particular motion, but as to his motion, I vote against it.
CHAIR EARP: Okay.
COMMISSIONER BARKER: The reason being that, I think if we ask Legal Counsel, Legal Counsel will say that, even if this particular motion is voted down, that does not affect this presentation being able to go forward.
CHAIR EARP: I don't see how three no votes vote it down.
COMMISSIONER BARKER: The motion fails with three no votes.
CHAIR EARP: And the motion is that we are not waiving a privilege. Is that right? Okay. Then we record the votes as three no, and one abstention. Can we move on now?
COMMISSIONER ISHIMARU: So let me just be clear, that the motion then fails, so the Commission does not waive its pre-decisional privilege. Let's be clear about that.
CHAIR EARP: Okay.
COMMISSIONER ISHIMARU: The Commission does not waive its pre-decisional privilege?
CHAIR EARP: Okay.
COMMISSIONER ISHIMARU: So if you(re going to allow Mr. Kuczynski to go on, that will raise other issues.
COMMISSIONER BARKER: You know, that presumes that, for him to continue requires an affirmative vote of waiver, and I(d like a Legal Counsel's opinion on that.
COMMISSIONER ISHIMARU: Well, it isn't a question of the Legal Counsel to answer.
COMMISSIONER BARKER: I think we've got three lawyers sitting right here at the table from OGC and OLC, and we can get their --
COMMISSIONER ISHIMARU: This is a question of how the Commission is going to operate. It's not a question of --
COMMISSIONER BARKER: It's a legal question of whether --
COMMISSIONER ISHIMARU: No, it's not. It is not.
COMMISSIONER BARKER: -- or not we are entitled to allow Chris Kuczynski to move forward with his presentation.
COMMISSIONER ISHIMARU: But if he moves forward with the presentation, it's a de facto waiver of the pre-decisional privilege that we --
COMMISSIONER BARKER: That(s your opinion, Stuart.
COMMISSIONER ISHIMARU: No, no, no.
COMMISSIONER BARKER: I want a legal opinion on that.
COMMISSIONER ISHIMARU: Well --
CHAIR EARP: Legal Counsel, I would like to proceed with Mr. Kuczynski presenting his testimony.
MR. RUSSELL: I think you can. I don't think you are required to waive the privilege to do the same thing we've done for NPRMs, and final rules, and NPRMs again in the past, which is to present the substance of the document, to have the Commission deliberate on it, and to vote either yes or no to send it forward to its next process. The Sunshine Act is why we're here and doing this in the sunshine, and it has nothing really to do with the waiver of your pre-decisional privilege, period.
COMMISSIONER GRIFFIN: But I don't understand. Why do we jealously guard what(s in a document when we(re in a deliberation period, and now we(re willing to, you know, against two of the Commissioners wanting this to be done, why are we doing it?
MR. RUSSELL: I'll be happy to answer that.
COMMISSIONER GRIFFIN: What allows it?
COMMISSIONER BARKER: And I guess my question is, why is it that we have even anybody at this table who doesn't want the public to know what's generally in that document? Why don't you want Chris to give them that information? Why do you want to keep it quiet, keep it a secret?
COMMISSIONER ISHIMARU: Because we haven't adopted the document yet.
COMMISSIONER BARKER: You know, the public has a right to know what --
COMMISSIONER ISHIMARU: Well, in that case, why don't we --
COMMISSIONER GRIFFIN: Well then why not just give it to them, if the public has a right to know?
COMMISSIONER ISHIMARU: And why don't we do that in every case, which has not been the practice of this body. We have zealously guarded the pre-decisional deliberations, both things that are developed by staff, and things that are developed by members of the Commission.
COMMISSIONER BARKER: You know, I can't speak to prior. All I can say is, I want the public to know what these people have spent months and months developing, and personally, I don't have any problem releasing the document. I think they need to be able to see it. This is about public comment, and the vote today is supposed to be an effort to put it before the public.
COMMISSIONER GRIFFIN: But it's not about preventing the public from seeing it. It(s you have two people here that think that we(re still in a deliberation over this --
CHAIR EARP: And this is a part of the --
COMMISSIONER GRIFFIN: -- and we still want to continue.
CHAIR EARP: -- deliberative process. That's what the Sunshine Act is all about. It doesn't have to have everybody's agreement before --
COMMISSIONER GRIFFIN: Well then why don't we invite everyone to every meeting that we have?
CHAIR EARP: Well, maybe we will.
COMMISSIONER GRIFFIN: Then why do you forbid me to talk about it to anybody?
COMMISSIONER BARKER: At any rate, I think we've had a legal opinion on it, so I would suggest we move forward.
CHAIR EARP: Mr. Kuczynski, would you proceed?
COMMISSIONER ISHIMARU: Madam Chair, point of order.
CHAIR EARP: Commissioner Ishimaru, you --
COMMISSIONER ISHIMARU: Madam Chair, point of order. I believe a point of order is a privileged motion, Madam Chair, that I'm allowed --
CHAIR EARP: It is denied.
COMMISSIONER ISHIMARU: No, Madam Chair.
CHAIR EARP: CHAIR EARP: It is denied.
COMMISSIONER ISHIMARU:...You can't do that under the rules. And if you're not going to follow the rules, that's certainly your prerogative. My point of order is that we have expressly voted to not waive our pre-decisional deliberations. And now, because of a ruling by the parliamentarian, or an opinion of the parliamentarian, that you would allow then effective waiver of our pre-decisional privilege, because it's my belief that, if you look at how the votes will go on whether we should adopt an NPRM or not, that at the end of the day, the votes will not be there to adopt it. So by letting Mr. Kuczynski make his presentation now, we are basically putting out in the public domain information that(s still within the ambit of pre-decisional deliberations.
And frankly, I'm not comfortable putting that out there until the Commission is in a position of being comfortable to move forward. You can do this if you want, but I would say, as a matter of comity for the future, that it would make sense that we not put our pre-decisional deliberations out in public. We should only do it after we have come to a point where we are going to approve something, and then we would put it out there. I think Commissioner Barker has an interesting perspective of trying to put things out there so people can see it, because frankly, I think the public should know what we(re going to do so we don't do it in secret.
COMMISSIONER BARKER: I think so, too.
COMMISSIONER ISHIMARU: But in this case, it's certainly my view that the document that we have in front of us is not yet ready for disclosure.
CHAIR EARP: It's your view.
COMMISSIONER ISHIMARU: Well, I know that, but at the end of the day, the votes are not there to support passage of this, as well.
CHAIR EARP: This is a part of the deliberative process, and I would like for Mr. Chris Kuczynski to proceed, if we could.
COMMISSIONER ISHIMARU: Madam Chair, point of order. I would ask the Legal Counsel, as parliamentarian, whether there(s liability for someone breaching the pre-decisional privilege, and whether that would go to a personal nature, so Mr. Kuczynski, for making the presentation, would be under, subject to a legal action against him for breaching that pre-decisional privilege, or whether that would go to the Commission as a body.
MR. RUSSELL: I think the answer to both questions is, no.
COMMISSIONER ISHIMARU: So that Mr. Kuczynski could breech the privilege on his own accord?
MR. RUSSELL: I didn't say I agreed with your basic premise. Again, we(re back to the original question, which I think Commissioner Barker was pointing to. It's not required that you waive the pre-decisional privilege for you all to discuss a proposed NPRM. Otherwise, Commissioner, every time - and you have done it numerous times in the past - every time you discuss an NPRM. And I pointed just to three that I could remember without looking into it, the 1614 Federal Regulations, which were discussed. There was no announcement in advance that you were going to vote for it, that you had accepted the document, that you would vote for it. There was simply a presentation of what was in the document, a discussion, deliberations, questions and answers, and then you voted for it. It then moved forward for interagency coordination, and this would follow that same process.
It(s simply the case -- the only apparent difference in this case is that you may, when a vote is called, vote against it. But we never actually know the answer to that question until the vote is called.
COMMISSIONER ISHIMARU: Well, we do know the answer to that question.
MR. RUSSELL: I don't know the answer, because no vote has been called.
COMMISSIONER GRIFFIN: Can I ask a question? So that means that, when we(re deliberating about anything that we have very strict, you know, rules about whether you can disclose anything you're talking about in the public. Whenever we(re deliberating about something like that, and especially regulations, that if the Chair wants to call a meeting and have it, that gives her the right to have the information disclosed. I mean, that's what we're saying here. Right? I mean, that is what we're saying.
MR. RUSSELL: That's not what I'm saying, Madam Commissioner.
COMMISSIONER GRIFFIN: Well, in effect, that's what's happening, so --
MR. RUSSELL: That's not the opinion of the Legal Counsel. You can restate it that way, but that is clearly not what I said, and the transcript will reflect it.
COMMISSIONER GRIFFIN: Well, could you restate it to refute that that's what's happening, because I'm missing something here.
MR. RUSSELL: I'm comfortable with what I've said so far, and I don't think -- as Commissioner Ishimaru pointed out with the difficulty of repeating motions without the benefit of a written transcript in front of you --
COMMISSIONER ISHIMARU: But I did it three times, Reed.
MR. RUSSELL: You're sharper than I am, Commissioner Ishimaru. I wouldn't want to try to run up that hill. So again, I'm comfortable that the Sunshine Act governs here.
This is not a broad waiver, or a waiver of your privilege, other than to the extent that you disclose things that would be privileged about during the briefing period, etc. I also think, just as a matter of practicality, I think your concerns would be put somewhat at rest by the presentation, but, you know, I don't want to steal Chris's thunder.
CHAIR EARP: Mr. Kuczynski, would you attempt again --
COMMISSIONER ISHIMARU: Madam Chair, I would move that we adopt the NPRM.
CHAIR EARP: Call the vote.
COMMISSIONER ISHIMARU: I would need a second for that, I believe.
COMMISSIONER GRIFFIN: Second.
COMMISSIONER ISHIMARU: Move the previous question.
CHAIR EARP: Discussion on the NPRM or the motion, Commissioner Ishimaru's motion?
COMMISSIONER BARKER: I(d like, prior to a vote, that
we have discussion on the NPRM.COMMISSIONER ISHIMARU: I moved the previous question.
COMMISSIONER BARKER: So my discussion is, yes, I want discussion on this, and I want discussion through presentation by Chris Kuczynski.
COMMISSIONER ISHIMARU: I moved the previous question, which I believe calls for a vote, which I believe is privileged, and we need to vote on it.
COMMISSIONER BARKER: I don't believe you can call that for a vote, because it's an item on the agenda, and there is a presentation prior to that agenda item, prior to action on that agenda item.
COMMISSIONER ISHIMARU: I don't believe a presentation was noticed in the agenda.
COMMISSIONER BARKER: I don't know. I guess what bothers me about this is, look at all of these people's time we're wasting, and all we should be about is --
COMMISSIONER ISHIMARU: Well, I --
COMMISSIONER BARKER: Excuse me, Stuart. Let me just finish this. All we should be doing today is just letting the public know what has been proposed for these regulations so we can get public input on it, and if there is any effort --
COMMISSIONER GRIFFIN: This is not to get public input on it.
COMMISSIONER BARKER: Yes, it is, because unless the public can see what the draft is, even if the public totally disagrees with it, and we wind up with a lot of substantial changes, our obligation as Commissioners is to start the process so these regulations can be out there for public comment. We can get input from different stakeholder groups that may give us some really good input, and then we vote on our best guess, and we send it to OMB, and we try to get these regs in place by January 1, because January 1, Stuart, we are going to have a brand new statute, and we've got people out there that are depending on us to give them guidance on how to interpret it. And what are we going to accomplish by coming up with some procedural way to stop the process?
COMMISSIONER ISHIMARU: No, no.
CHAIR EARP: Can we please have a vote on the motion that Commissioner Ishimaru moved that we vote on the NPRM. Right? That's the motion.
COMMISSIONER ISHIMARU: So we are actually voting on the NPRM.
CHAIR EARP: And Commissioner Griffin, did you second, or no?
COMMISSIONER GRIFFIN: I(d like to hear the motion again.
COMMISSIONER ISHIMARU: I move that we vote to approve the NPRM.
CHAIR EARP: It's moved that we vote to approve the NPRM. Is there a second on that motion?
COMMISSIONER GRIFFIN: There is a second.
CHAIR EARP: Discussion. And Commissioner Barker, you were discussing --
COMMISSIONER BARKER: I'm not ready to vote on it until we have discussion, and that discussion is going to involve Office of Legal Counsel telling me about this NPRM, and why I should vote for it or against it.
CHAIR EARP: Okay. So the motion that is currently before us, let's have a vote. Let's start with you, Commissioner Barker. You vote on the motion to approve the NPRM at this point in time. Your vote is? Without discussion.
COMMISSIONER BARKER: Without discussion, I vote -- you know, I can't vote for it one way or the other, because I haven't heard the presentation.
CHAIR EARP: So you vote, no.
COMMISSIONER ISHIMARU: Well no, she said she doesn't vote for it one way or the other. I think that(s an abstain.
CHAIR EARP: Where are you, Commissioner Barker?
COMMISSIONER BARKER: Okay. I'll vote against it at this point.
CHAIR EARP: Okay.
COMMISSIONER ISHIMARU: But wait a minute, Madam Chair. You cannot have staff come up to her to say, no, no, no, no, no. I think that's totally inappropriate. Totally inappropriate.
COMMISSIONER BARKER: This is sort of silly, isn't it? I mean, I think what's going on here is, Chris and Stuart, I don't understand what your concerns are, but I know you don't want Chris Kuczynski to go forward with this presentation.
COMMISSIONER ISHIMARU: No, no, no. Let me be clear. Mr. Russell said that he did not know how people would vote on this. And the point of this motion is to show that there are not votes to pass an NPRM, so that if we would go through this whole process, at the end of the day, and if a presentation was made, that the presentation would disclose to the public what the pre-decisional views of the Commission are.
CHAIR EARP: And there is absolutely nothing wrong with that.
COMMISSIONER ISHIMARU: No, no, no. But --
COMMISSIONER GRIFFIN: Then why don't we just do it all the time? You know, that's the point that nobody is discussing here.
CHAIR EARP: You know, the fact of the matter is, and all the Commissioners know this, sometimes before we issue an NPRM, and we get lucky, and everyone agrees, because the same amount of compromise and behind the scenes work that went into this document goes into other documents, and perhaps the passions are not as strong.
This is a case where we don't all agree, and that's perfectly okay, also. But to have the notice of public rulemaking as a part of our deliberative process is as much a part of EEOC's history as our commitment to equal opportunity. There is nothing wrong with it.
COMMISSIONER ISHIMARU: Madam Chair, can you point to a situation where the Commission --
CHAIR EARP: Legal Counsel has already --
COMMISSIONER ISHIMARU: No, no, no, no, he has not, Madam Chair, because you don't know what my question is. My question is, can you point to a situation where the Commission has voted not to approve a notice of proposed rulemaking, yet the pre- decisional information was --
CHAIR EARP: Legal Counsel, can you please tell me what is before us right now? Is it Commissioner Ishimaru's motion to vote on the NPRM, or are we still in discussion on that motion?
MR. RUSSELL: If the vote -- if the motion, excuse me, is -- if Commissioner Ishimaru is attempting to put before the Commission a vote on the document, that(s improper.
COMMISSIONER ISHIMARU: Why?
MR. RUSSELL: Can I finish?
COMMISSIONER ISHIMARU: Surely.
MR. RUSSELL: Thank you. The Chair controls the meeting, including its agenda. The Chair has put on the agenda this regulation to be considered by the Commission and voted on. The Chair gets to call for the vote after there(s been a presentation, that she also gets to design, and deliberations to the extent that the two Commissioners wish to participate in those deliberations. If your motion is to -- I don't know what the motion is, if that's not what it is. If that's what it is, it's improper and --
COMMISSIONER ISHIMARU: Would you point to where in the rules that(s stated? Because it's my understanding that any member of the body can make a motion to adopt what(s on the agenda, and any member of the body can move the previous question to force a vote.
It's not my understanding that that(s totally within the purview of the presiding officer. And if you can point to me in the rules where that is, I'll abide by it, but I don't believe it's there.
CHAIR EARP: Whether it is or whether it isn't, the motion before us is to vote on the NPRM without discussion.
COMMISSIONER BARKER: And I would suggest that the motion is out of order, and that you not allow the motion, and that we proceed.
CHAIR EARP: Okay.
COMMISSIONER BARKER: Unless you want to take a break and discuss it with Legal Counsel, which you're entitled to do.
CHAIR EARP: I deny the motion and proceed.
MR. RUSSELL: I wouldn't recommend that.
COMMISSIONER ISHIMARU: Whose motion are you denying, Madam Chair? Are you denying Commissioner Barker's motion, or my motion?
COMMISSIONER BARKER: I don't have a motion.
COMMISSIONER ISHIMARU: You just said it was out of order.
CHAIR EARP: Legal Counsel, can you please tell me where we are with the Commissioners?
MR. RUSSELL: I have said that I think the motion is improper.
CHAIR EARP: The motion is improper.
MR. RUSSELL: Right. So Commissioner Ishimaru can request an appeal of that ruling, and you all can vote on that appeal, and that will end the matter.
COMMISSIONER ISHIMARU: Wait.
COMMISSIONER GRIFFIN: I thought he has to be shown evidence of that rule.
MR. RUSSELL: Madam Commissioner, that's not required.
COMMISSIONER ISHIMARU: They can't point to the rule because a rule doesn't exist. This has happened on multiple occasions by the parliamentarian where they cannot point to the provisions in the rules to back up what they want to do.
MR. RUSSELL: The point is that we are not required to. We are not going to engage on it. We are not here to answer your questions unless the Chair asks me questions. The Chair asked me for a ruling and I gave it. If you don't like the ruling, you can appeal it and that is the process.
CHAIR EARP: I accept the ruling of the Legal Counsel. The appropriate procedure at this point is for you to appeal the ruling.
COMMISSIONER ISHIMARU: So I would appeal the ruling that my motion to adopt the NPRM is out of order? I just want to be clear.
MR. RUSSELL: That's right.
COMMISSIONER ISHIMARU: And it's out of order because of some practice that we have that is not stated in the rules.
MR. RUSSELL: Remember, we follow -- when you say rules --
COMMISSIONER ISHIMARU: Robert's Rules.
MR. RUSSELL: We use them to the extent they are consistent with Commission practice. That is my understanding of what you all voted on or whatever the Commission's body was at the time --
COMMISSIONER ISHIMARU: Where is Commission practice codified? Where is it stated or is it this --
MR. RUSSELL: I'm not sure that it is.
COMMISSIONER GRIFFIN: Could I ask a question?
CHAIR EARP: The ruling is done. Do you want to appeal the ruling so that we can vote on it?
COMMISSIONER ISHIMARU: No.
CHAIR EARP: No. Okay. The ruling is done. Mr. Kuczynski, would you please proceed.
COMMISSIONER GRIFFIN: Wait a second. Can I just --
CHAIR EARP: Mr. Kuczynski, would you please proceed.
COMMISSIONER GRIFFIN: Oh, I can't ask a question. Okay, great. This is a great hearing.
CHAIR EARP: Thank you, Chris.
MR. KUCZYNSKI: Okay. The proposal you have revises first Section 1630.2(i) of EEOC's Title I regulation to reflect changes that the ADA Amendments Act makes to the definition of the term "major life activities." The Act has two lists and so does the regulation of major life activities.
The first includes most of those that EEOC has recognized in its 1991 regulation and the accompanying interpretive guidance and in sub-regulatory documents published since 1991.
The first list of major life activities also includes in both the statute and the proposed regulation three that Congress explicitly recognized in the ADA Amendments Act that EEOC has not mentioned in any policy documents to date, reading, bending, and communicating.
The second list of major life activities, again consistent with the language of the Amendments Act, are major bodily functions including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The revised interpretive guidance along with the proposed regulation gives examples, how examples may apply to individuals with specific types of impairments such as "normal cell growth" to someone with cancer, functions of the immune system to someone who is HIV positive, and functions of the endocrine system to someone with diabetes treated with insulin.
Although the list of major life activities in the proposed regulation tracks the language of the Amendments Act itself, we emphasize in the appendix that both lists are non-exhaustive and so the Commission has -- and that the Commission has previously recognized things like reaching, sitting, and interacting with others as major life activities.
Consistent with the purposes of the Amendments Act we have made a number of significant changes in the proposal to the definition of the term "substantially limits" intended to make it clear that the term is to be construed broadly and that it is intended to express a lower standard than the Supreme Court did in Sutton v. United Airlines and its two companion cases, and in Toyota Motor Mfg. v. Williams, and a lower standard than the EEOC expressed in its 1991 ADA regulations.
Consequently, the section's first subparagraph in proposed 1630.2(j) says that an impairment "is a disability within the meaning of this section if it `substantially limits’ the condition, manner, or duration under which an individual can perform a major life activity as compared to most people in the general population."
However, it goes on to say an impairment need not prevent, or significantly restrict or -- significantly or severely restrict the individual from doing the activity. The terms "condition, manner, or duration" were endorsed in the House Judiciary Committee and House Education and Labor Committee reports on the ADA Amendments Act as a way of talking about (substantially limits.(
Subparagraph (2) in the proposed 1630.2(j) briefly describes what condition, manner, or duration mean. Condition or manner, we explain in the proposed regulation may refer to the extent to which a major life activity can be performed, the way it is performed, the effort required to perform it, or the effects on an individual of performing it. Duration refers to the length of time that a function can be performed or a major life activity can be performed.
The interpretive guidance proposes a number of useful examples that illustrate these concepts. The extent to which a major life activity can be performed may be relevant in many ADA cases in which the activity, seeing or hearing, for example, is diminished in some way as compared to most people.
The extent to which a major life activity can be performed may also be relevant in cases involving the operation of major bodily functions such as where an individual with diabetes -- where diabetes diminishes a person's capacity to produce insulin.
The way in which a major life activity can be performed may involve situations in which in spite of an impairment, an individual can still accomplish an activity but in a way that is more cumbersome than for most people such as someone with an amputated arm who must lift or must perform manual tasks.
The House report gives an excellent example of a situation in which we think the effort to perform a major life activity may be relevant and we borrow from that example in the proposed interpretive guidance. An individual with a learning disability, we explain, may be able to achieve a high level of academic success but may still be an individual with a disability because of the need to spend more time reading, writing, or learning compared to most people.
In addition, the effects of performance of a major life activity on an individual may be important in situations in which someone can perform the activity but experiences pain, discomfort, or some other negative consequences as a result.
An individual with coronary artery disease, for example, may be able to walk but may experience shortness of breath or fatigue when walking distances that most people do not experience.
Subparagraph (2) of the proposed regulation states that the duration of an impairment lasts, as opposed to the duration that a major life activity can be performed as a consequence of an impairment, may also be relevant in determining whether an impairment “substantially limits” a major life activity. Temporary nonchronic impairments of short duration, the proposed regulation says, with little or no residual effects typically will not substantially limit a major life activity.
Subparagraph (3) of proposed 1630.2(j) consistent with the plain meaning of the ADA Amendments Act says that conditions that are episodic or in remission can be disabilities if they would substantially limit a major life activity when active.
The provision is particularly important, we explain, for people with impairments such as epilepsy, multiple sclerosis, hypertension, diabetes, asthma, major depression, bipolar disorder, schizophrenia, or cancer that is in remission.
Even where an individual has never experienced substantially limiting effects of an impairment that is episodic or in remission, the proposed interpretive guidance makes clear that that impairment may still be a disability if evidence shows that the impairment would be substantially limiting when active.
Subparagraph (4) of the proposed 1630.2(j) says that the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses, shall not be considered in determining whether an impairment substantially limits a major life activity.
The regulation lists examples of mitigating measures that come directly from the ADA Amendments Act: medication, medical supplies, equipment or devices, low-vision devices (defined as devices that magnify, enhance, or otherwise -- magnify or otherwise enhance a visual image but not including 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 or supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.
The proposed regulation defines "ordinary eyeglasses or contact lenses," consistent with the statute, as lenses that "are intended to fully correct visual acuity or eliminate refractive error."
Again, the interpretive guidance provides several examples of how the ADA Amendments Act's approach to mitigating measures would affect different kinds of impairments and makes the point that in many instances the substantial limitations that would exist in the absence of mitigating measures would be obvious and not require much analysis.
Subparagraph (5) explains how to analyze those cases in which an individual claims to be substantially limited in the major life activity of working. Working is included as a major life activity in the ADA Amendments Act.
To begin with, the subparagraph emphasizes that because an individual will often be substantially limited in a major life activity other than working, the major life activity of working should be considered only where no other major life activity is substantially limited.
For three reasons we believe it is appropriate to retain in the regulation the concept that in order to be substantially limited in working an individual must be substantially limited in the ability to perform either a class of jobs or a broad range of jobs in various classes.
First, the legislation is very specific as to the portion of the regulations it expects EEOC to change, the portion that defines (substantially limits( as significantly restrictive.
Thus, we find it significant that although Congress must have been aware of how EEOC's regulation defined (substantially limited( in working when it included working in the list of major life activities, nowhere does the legislation express an expectation that we will amend that portion of the regulation.
Second, we believe that the House reports, both from the Judiciary and the Education and Labor Committee, support continued inclusion in the regulation of the class or broad range concept in working cases under the first and second prongs of the definition of disability.
Third, the portion of the EEOC's regulation concerning working draws on Rehabilitation Act case law that predates the ADA. To the extent that the statute, the ADA Amendments Act, references Rehabilitation Act case law that existed prior to the ADA, it does so with approval.
Even though the regulation or proposed regulation contains the class/broad range approach, the lower threshold for establishing that an impairment "substantially limits" a major life activity applies equally where the major life activity in question is working. Thus, it ought to be easier for ADA plaintiffs to establish a substantial limitation in working if they presumably on rare occasions resort to that major life activity to establish coverage.
Also, the proposed regulation includes a list of job-related requirements that may be characteristic of a class or broad range of jobs including: repetitive bending, reaching, or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; working under certain conditions, such as in work places characterized by high temperatures, high noise levels, or high stress; and rotating, irregular, or excessively long shifts.
To clarify further the meaning of the class or broad range of jobs, the proposed interpretive guidance provides examples of the kinds of jobs the Commission would consider sufficient to establish a substantial limitation in working if an impairment substantially limited the condition, manner, or duration under which an individual could perform them.
These jobs include, for example, truck driving jobs, that is, driving trucks subject to Department of Transportation regulations governing commercial motor vehicles, assembly line jobs, food service jobs, clerical jobs, and law enforcement jobs.
In response to ADA case law holding that the fact that an individual has found work with another employer defeats a claim that the individual is substantially limited in working, we have included language in subparagraph (5) on "working" stating that the ability to obtain similar employment elsewhere is not dispositive of, but may be relevant to, a claim that the individual is substantially limited in working.
At the same time, however, the ability to obtain a single particular job, that is, for example, a job requiring a high degree of specialized skill or physical prowess, for example, would not establish a substantial limitation in working.
We believe that several factors will make it far less likely that ADA plaintiffs will need to establish that they are substantially limited in working, such as the lower threshold for establishing substantial limitation generally, the ADA Amendments Act's rules concerning the ameliorative effects of mitigating measures, that they be disregarded when assessing whether an individual has a disability, and certain rules of construction in subparagraph (6) of proposed Section 1630.2(j) which I will discuss briefly in just a moment.
At the same time, however, we are concerned that there may be some individuals whose impairments affect them primarily, or perhaps only, at work who will still need to rely on working as a major life activity. The fact that the ADA Amendments Act includes working as one of the illustrative list of major life activities supports this position.
We believe that the revised proposed regulation provides a common.sense roadmap to analyzing such claims that expands, rather than limits, the rights of individuals with disabilities, consistent with the intent of the ADA Amendments Act.
Subparagraph (6) is the last in the revised, proposed Section 1630.2(j). It includes three rules of construction that should govern assessment of whether an individual is substantially limited in any major life activity, including working.
First, as the plain language of the ADA requires, the definition of "disability" must be construed broadly to the maximum extent allowed by the Amendments Act, and generally should not require extensive analysis. That's the first rule of construction set forth in the new proposed Section 1630.2(j)(6).
We make this point as well in the discussion of the major life activity of working in the proposed interpretive guidance, wherein we reject the overly complex and onerous statistical analysis required in many working cases.
Second rule of construction, an individual need not establish that an impairment affects the ability to perform activities "of central importance to most people's daily lives."
Someone with a 15.pound lifting restriction that lasts for a sufficiently long duration need not demonstrate that he or she is substantially limited in the ability to perform activities of central importance to daily life that require lifting in order to establish coverage under the first prong.
The third rule of construction is that an individual may be substantially limited in a major life activity even if there are other major life activities as to which he or she is not substantially limited.
The proposed revised regulation and interpretive guidance on the "regarded as" definition of disability states, and this is proposed 1630.2(l), states, "An individual is `regarded as’ having a disability if the individual is subjected to an action prohibited by this part, including non.selection, demotion, termination, or denial of any other term, condition or privilege of employment, 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." There is one exception to this rule, as set forth in the ADA Amendments Act and as tracked in the proposed regulation where the impairment that is the basis of the prohibited action is both transitory, meaning it lasts or is expected to last for six months or less, and is minor.
Thus, as the interpretive guidance explains, an employer who does not hire a temporary employee for a position scheduled to begin immediately because a sprained wrist would prevent that individual from typing for the next three weeks is not regarding the individual as having a disability because the sprained wrist is transitory and minor.
On the other hand, an employer who refuses to hire someone with Hepatitis C for a food service position is regarding the individual as disabled because Hepatitis C is not transitory and minor.
An employer that fires someone who experiences an episode of lightheadedness at work due to the effects of a minor intestinal virus, believing the symptoms to be those of heart disease, would also be regarding the employee as an individual with a disability, because heart disease, the impairment that is the basis for the employer's action, is not transitory and minor.
Lastly, with respect to the "regarded as" prong, we have added language to proposed Section 1630.2(o), the definition of "reasonable accommodation," and to proposed Section 1630.9 describing the obligation to make reasonable accommodation, stating that individuals covered under the first and second prongs of the definition of "disability" are entitled to reasonable accommodations, but individuals covered only under the "regarded as" prong are not. This is consistent again with the plain language of the ADA Amendments Act.
We have proposed amending 1630.10 by adding a new subsection (b) implementing a provision of the ADA Amendments Act requiring an employer to justify, as job.related and consistent with business necessity, qualification standards based on uncorrected vision when they screen out individuals based on uncorrected vision.
The proposed interpretive guidance makes clear that someone challenging such a standard need not establish that he or she is an individual with a disability. However, because we cannot predict whether courts will embrace this view, the guidance further states that individuals excluded from jobs based on uncorrected vision standards will typically meet the "regarded as" definition of "disability."
I want to mention just a few more smaller changes. First, two proposed subparagraphs have been added to Section 1630.1(c), both of which reflect language in the ADA Amendments Act. Subparagraph (c)(3) says that nothing in the regulations alters the standards for determining eligibility for workers' compensation or disability insurance benefits. Subparagraph (c)(4) says that the term "disability" shall be construed broadly. Second, we have changed the term "qualified individual with a disability" to "qualified individual" or simply the term "qualified" with respect to an individual with a disability in Section 1630.2(m), because the ADA Amendments Act eliminates the former term "qualified individual with a disability" in most places where it appeared in Title I.
Third, a new proposed subsection (b) in Section 1630.4 says that an individual may not bring a claim based on lack of disability. Although issuance of an NPRM at this time will not enable us to have a final regulation by the ADA Amendments Act's effective date, OLC believes that the Commission should act as quickly as possible to approve this proposed rule, so that interested stakeholders can have an opportunity to comment and a final rule can be issued as promptly as reasonably possible. The proposed rule is consistent with the plain language of the ADA Amendments Act, effectuates Congressional intent, furthers the objectives of the coalition of disability and business groups that worked so hard to get the legislation enacted, and will serve as the basis for a final rule that will guide enforcement efforts and promote voluntary compliance.
Voting in favor of this proposed rule today will ensure that individuals with disabilities will have access to employment and access to the courts when they experience discrimination.
That's the end of my presentation. I welcome your questions. Thank you.
CHAIR EARP: Thank you. Thank you, Chris Kuczynski. Thank you, Peggy Mastroianni. Thank you for your patience.
We will now have statements, comments, questions from Commissioners. We'll start with a 10-minute opening, Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Thank you, Madam Chair. Thank you for the presentation. This is a huge change to the civil rights laws. It was long in the works and was the result of tremendous cooperation among a coalition of advocates and members of the business community. And I applaud their efforts in getting this bill enacted and signed by President Bush this year.
I remember 18 years ago when I worked as a staff member on Capitol Hill, working for the House Judiciary Committee and I had the honor and privilege of working on the first Americans With Disabilities Act and drafted the Judiciary Committee report on the Act. And I remember the promise that we thought at the time that we were enacting a bill that would finally bring a good measure of justice to people with disabilities in this country.
And as we have seen over the last 18 years, that grand vision and hope and that sunny day on the White House lawn with Chairman Kemp and Justin Dart and President George H. W. Bush on that hot day -- it was a very hot day on the south lawn of the White House -- that the vision and the dreams were dashed by both the courts and by the regulations drafted by this Agency.
And because of the history of the last 18 years it has made me very cautious as to what we go forward with in any sort of regulation that comes out of this Agency. It is so important. We need to get it done and to get it done right. And we should not place artificial time constraints as obstacles that would keep us from putting out the very best document we can. Like my friend Commissioner Barker, I am an advocate for public comment and public input into the work we do.
And I commend my friend Commissioner Griffin for convening a meeting that allowed the advocates from the disability rights community and the business community who came together in coalition to work with members of the House and Senate to come up with a compromise bill that was acceptable to a broad bipartisan coalition of members of Congress to have this coalition come in to talk to us about what their intent was.
And I thought that was very helpful for our people to hear what the coalition was thinking about, what they intended when they proffered their compromise to the members of Congress.
But I think we need to take the time to get this right. And I think any suggestion that we were at the point today of being at that point where this is the best possible document to put out for public comment is misleading.
And I would note that there were significant disagreements in a number of areas that we continued to have even though there were a significant number of meetings as Ms. Mastroianni pointed out in her statement. But it doesn't mean that it was solved. There were a number of meetings, a lot of meetings, painstaking meetings, but the issues were not resolved. And I think it's unfortunate if a perception was laid out there that all the issues were answered and everything was worked out because that, in fact, wasn't the case.
So I would hope that this Agency takes the time to get it right so that we do not go down the same road that we went down 18 years ago. I want to thank my friends in the Office of Legal Counsel for their hard work. Obviously a lot of work has gone into it, a lot of time, a lot of effort.
But I think there is still more work to do and I hope that we will take the time to do this right and to proffer a version of a notice of proposed rulemaking that will garner broad support within the Commission itself.
And you know, frankly, at the end of the day I wonder why we are trying to shortchange ourselves. I know the statute goes into effect on January 1st but Congress did not state anywhere in the Act that the EEOC regulations needed to be completed by that date.
Some have said that there would be a huge disservice created if our proposed regulations were not issued by that effective date, but even if we adopted the motion that is in front of us today, it still won't be done by the effective date.
The Act itself provides a tremendous amount of guidance and specificity on how it should be applied and interpreted. And I think we should take the time necessary to come up with a draft rule that will garner broad support within the Commission. With that I yield back, Madam Chair.
CHAIR EARP: Commissioner Griffin.
COMMISSIONER GRIFFIN: I would actually like to begin with a question. And maybe you said this, Peggy. I'm not sure. What was the comment period going to be? I didn(t hear that.
MS. MASTROIANNI: The comment period? I believe it's a 60-day comment period.
COMMISSIONER GRIFFIN: Sixty days. Okay. There is no illusion that we would have something in place by January 1, right? Is that correct?
MS. MASTROIANNI: At this point, no.
COMMISSIONER GRIFFIN: Okay. So I want everyone to be clear about what happened here today. This was an attempt by the Republican Administration who, you know, is leaving shortly, to get their views out into the public knowing full well that we disagree.
COMMISSIONER BARKER: Chris, that’s unfair. Wait a minute. Chris, that is just blatantly unfair.
COMMISSIONER GRIFFIN: This is my statement.
COMMISSIONER BARKER: Okay.
COMMISSIONER GRIFFIN: That is what the attempt is. This was not to let the public know, you know, about this NPRM because they knew full well coming to this meeting that the NPRM was not going to pass. They knew we were at a stalemate over a couple of issues and they decided not to proceed with deliberations. They decided to have a meeting under the guise that they needed something in place by January 1st when that, in fact, is not going to happen. And frankly, Congress has never been shy about telling people what they want in place and when they want it in place in other statutes.
I resent frankly the way this was done and how it’s being portrayed as they just want to add some sunshine to this. What you wanted were your views out in public before you left because you knew that this was not going to pass. And I think you should just call for the vote.
CHAIR EARP: Commissioner Barker.
COMMISSIONER BARKER: Let me take a breath here before
I answer.COMMISSIONER GRIFFIN: I'm not asking for an answer.
COMMISSIONER BARKER: You know, I'm going to say again, and I feel like I've beat a dead horse saying this at every Commission meeting, but we are not here as Commissioners, we should not be here as Commissioners, to promote any particular political agenda, period.
This is the EEOC. We are an independent agency. And in our fundamental responsibility as I see it, and I know I'm new, but our fundamental responsibility is to enforce the federal employment laws and to get regulations drafted when Congress sees fit to improve those laws.
And Stuart is absolutely right. And I think it's exciting that you were there with the initial signing of the ADA. There were problems with the Act and Congress saw that there were problems and they responded to those problems. And then they turned it over to us as Commissioners to get some regulations out there so people would know how to comply with this new Act.
And the way I see it, and granted, this may be overly simplistic, is our job today is to at least start the process. No, it can't be in place by January 1 now because we shifted the process and I was opposed to that because I felt like we owed it to everybody to get it in place by January 1 if we could.
But I think that personally as a Commissioner all I want to do today is just start the process so that we can get public input. And it may not be a perfect document. It may not be anywhere near perfect.
I mean, I'm impressed by it but I certainly don't have the expertise that some of the people in this room have who have worked very hard on getting the Act negotiated and passed, but I want to start the process because we have new legislation and we have an obligation, a fundamental obligation as Commissioners to start the process and get public input to see if we can then after public input come forward with the best possible document that we can. But I don't see that we do anything for anybody by stopping the process. All I want to do is start the process. That(s all.
CHAIR EARP: A second round of comments or questions. Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Thank you, Madam Chair. I, too, want to start the process, but I believe that we are not ready to start yet. It’s been my experience that whenever an agency issues a -- puts out a notice of proposed rulemaking, that that becomes the vehicle. And there have been times here at this body where despite vigorous public objection the Commission did not change to adopt the views that were coming in. We kept basically the same thing. And that’s why I believe it's so important to get it right or to get it where a majority of the Commission is comfortable to start because once it's out there it begins to take on a life of its own.
And one of the first issues that I dealt with when I came here was dealing with the retiree health issue which garnered 40,000 to 50,000 pieces of public comment on the regulation. And the majority of the Commission voted against those views coming in, which is obviously the prerogative of members of the Commission.
I voted against it because I thought it shouldn't have gone forward. But it showed the power to me of whatever gets out there in the domain at first carries weight and it also carries momentum. And I think that we owe it to the public, to people in the disability community, people in the business community who worked so hard in coming together on a compromise that was workable, to come up with the best possible regulations we have.
And I don't think today is the right time to get into some of the significant disagreements that we still have on these regulations, but I think before we put it out for public comment we should try to resolve those.
So, I want to get started, too, but I see the January 1st date, the effective date, as yes, indeed, Congress intended that the Act be effective. But Congress also knows how to say have regulations in place as well which they did not in this case. Thank you, Madam Chair.
CHAIR EARP: Commissioner Griffin. COMMISSIONER GRIFFIN: I, too, want to see a document that goes out and that we get good public comment on but I want it to be the best document that it can be before it goes out the door. We have an obligation to everybody to do that.
This really was, I believe, an attempt to get a certain group of people's views out there in the public and I resent that. And I resent that I'm sitting here watching other people at this table have a statement that Chris gave that was not given to Stuart or I beforehand. And so that is why you saw us object. We had no idea what he was going to say and we object that deliberational language is being discussed at this meeting.
COMMISSIONER BARKER: Chris, I have a question because I've sat in two meetings with you where Chris has gone through a full description of the regs. You know, not just did we all have copies, had we had copies of this for a long time, but we've had two full briefings. The first one was, I think, two and a half hours or something like that.
COMMISSIONER GRIFFIN: Connie, there is a difference between -- there is a difference between what we see and what was going to be said at this meeting. And I did not have that document that he was going to -- I didn't know what he was going to say at this meeting. No idea.
CHAIR EARP: Peggy, what is the Commission's practice on staff providing their statements to Commissioners in advance? Did we do something differently this time?
MS. MASTROIANNI: I think the expert on that is probably Steve Llewellyn. I apologize but I'm not.
CHAIR EARP: Steve, could you respond?
MR. LLEWELLYN: Madam Chair, I'm not sure the practice has been 100 percent consistent but through most of the tenure that I've been involved, usually they are provided to the Chair. Sometimes if they are requested they are provided to others. I am not aware that across the board they are provided to all Commissioners without any request.
CHAIR EARP: Thank you.
COMMISSIONER BARKER: Well I want to go on record as saying I didn't have a copy of Chris' statement. Commissioner Griffin, to not get our Chrises confused.
COMMISSIONER ISHIMARU: Wait. You were talking about Mr. Kuczynski's statement?
COMMISSIONER BARKER: Yes, Mr. Kuczynski's statement.
COMMISSIONER GRIFFIN: I would have given you mine if you asked but mine changed actually during the meeting.
COMMISSIONER BARKER: Well, I didn't realize that was a concern. I mean, I think if you wanted the statement and did not receive it, then I wouldn't personally have any problem with your receiving it.
COMMISSIONER GRIFFIN: I asked several times what was going to be said at this meeting. I asked that several times.
CHAIR EARP: Chris Kuczynski, was there anything in your statement today that has not been included in the package presented to the Commissioners or otherwise discussed in the briefings with the Commissioners and/or with the stakeholder groups?
MR. KUCZYNSKI: No.
COMMISSIONER GRIFFIN: That is not true.
COMMISSIONER ISHIMARU: Madam Chair, that is somewhat disingenuous because Mr. Kuczynski gave a statement and whether all of that was in the various materials that you talked about, he was laying out something that was limited in scope.
So the fact that this was provided along with a much larger universe of information doesn't seem to be relevant. That Mr. Kuczynski gave a presentation that certainly three of the four members of this Commission did not see and you know, that's powerful in and of itself of what, in fact, was in his statement.
CHAIR EARP: Chris Kuczynski, I think that Chris Griffin just called you a liar. She doesn't think it's true that your statement --
COMMISSIONER GRIFFIN: You asked the question --
CHAIR EARP: -- today is reflective --
COMMISSIONER GRIFFIN: -- about whether he presented that --
CHAIR EARP: And he said it was the same information and you said that's not true.
COMMISSIONER GRIFFIN: You asked the question whether he presented that to stakeholders and other people. That is not true. The only people that saw any of that information were those of us right up here at this table. You asked whether -- you included stakeholders in that question.
CHAIR EARP: My question was was there anything in Chris Kuczynski's statement today that had not been previously presented to Commissioners either in the document that was circulated or the briefings or in the meetings with the Commissioners and the stakeholder groups.
COMMISSIONER GRIFFIN: Right.
CHAIR EARP: And Chris Kuczynski's answer was -- Chris.
MR. KUCZYNSKI: No. The stakeholder -- the meetings with stakeholder groups, I mean, I had briefings with Commissioners and it was part of the materials that were circulated for a vote. I'm not sure what you're talking about, briefings with stakeholders.
COMMISSIONER GRIFFIN: There were no briefings with stakeholders and that's what I'm referring to.
CHAIR EARP: Okay.
COMMISSIONER GRIFFIN: This was not discussed with stakeholders. What was discussed with stakeholders is we heard from them what the process had been and what they think they agreed to with regard to the statute.
CHAIR EARP: Okay. All right.
COMMISSIONER GRIFFIN: That's what happened.CHAIR EARP: All right. Thank you for that clarification.
COMMISSIONER GRIFFIN: And I did not call Chris a liar. Thank you very much.
MR. KUCZYNSKI: I misunderstood the question because I thought it referred to the vote package in meetings with Commissioners.
CHAIR EARP: That was the main point because I wanted to get at whether or not the Commissioners should have been surprised by anything that you said today.
MR. KUCZYNSKI: I don't think so because I think it's presented in all of the materials that were available to them.
CHAIR EARP: Thank you.
COMMISSIONER ISHIMARU: But Madam Chair, a lot of things were presented in the materials and what Mr. Kuczynski did was pull out a selection of what to present. So again, I think it's somewhat disingenuous to say that it shouldn't be a surprise. We did not know what he was going to say at the end of the day. You know, we did not know what the presentation was. You may have but certainly three of the four of us did not.
COMMISSIONER BARKER: Let me just say that I think all four of us have different points of view but I think all four of us want the same thing and that is we want -- we do want the very best document. So I suggest that -- we have noted our views and our different concerns. Let's just call for a question and whatever happens happens. Whatever the vote is today, you know, more work needs to -- is going to be done and you know --
COMMISSIONER GRIFFIN: Let me know. We could have done that right in the beginning and not actually even had this argument.
COMMISSIONER BARKER: Well, I think something was gained, but I think it that it was important to let Chris make his very excellent presentation.
COMMISSIONER ISHIMARU: Well, let me also give a fair warning, though, because if this motion does not pass, I would urge the public not to rely on the presentation in any way as to what the draft notice of proposed rulemaking may look like.
This was a presentation that I believe was unfortunately presented despite my objection and people should not take comfort in what was presented today. I don't know what the final or what the proposed rule will look like when hopefully we will approve it sometime in the near future. But I think people, if they rely on it, they rely on it at their peril. And I know that there are a number of people in this room writing furiously as to what was said. And I think it needs to be taken with fair warning that I'm not sure what it's going to look like in the end. And that people should not rely on this discussion in what goes forward.
I think the statute says what it says and that gives a certain degree of guidance to people on how to comply with the law once it goes into effect. And I think we should work diligently and quickly to try to come up with a draft notice of proposed rulemaking so we can move the process forward.
COMMISSIONER BARKER: Well, certainly Chris Kuczynski's presentation was just an overview. It was very general and so it in no way suggests --
COMMISSIONER ISHIMARU: But Commissioner Barker, it gave specific details as to what was in the draft.
COMMISSIONER GRIFFIN: It gave direct language that went to the heart of some of the issues in the statute.
COMMISSIONER ISHIMARU: And my warning is --
COMMISSIONER GRIFFIN: That we were asked to interpret.
COMMISSIONER ISHIMARU: Yes. Fair warning that certainly does not reflect any views of the Commission yet. This is still a work in progress and despite my objection, I am disappointed that this was aired in public because it could give the impression that these can be relied on come January 1st. And in my view they should not be, or you do it at your peril.
COMMISSIONER BARKER: Well, I just want to say that, you know -- never mind. I think we've said enough!
COMMISSIONER ISHIMARU: Can I make one quick comment? I note that this administration is coming to a close in January and I just wanted to salute the work of the political appointees whose tenure will likely come to an end come January 20th for their hard work at the Commission. And I would applaud their contributions to the work we’ve done.
COMMISSIONER BARKER: Hear, hear.
CHAIR EARP: Anything further, Commissioner Griffin?
COMMISSIONER GRIFFIN: No.
CHAIR EARP: I would like to salute the work of the career staff, and especially the Office of Legal Counsel that I had great respect for before I became a Commissioner but leave the job of Chair with enormous, enormous, heightened respect for the work that comes out of the Office of Legal Counsel.
What I resent about today's meeting is the attempt by some Commissioners to turn this into some kind of political free for all because the Bush Administration is ending. I think for myself and certainly for Commissioner Barker in her short time and for my predecessor we have attempted to work in a very collaborative fashion. Rarely has political ideology raised its head. Most often there has been great deference to the recommendations from the career staff, the people who know these areas of the law much better than we do, and who guard tenaciously the responsibility that they have been given to be a part of America's justice system.
I resent deeply – deeply, the intimation that this is about George Bush leaving office. The fact that we cannot agree and that we have a 2-2 Commission does not mean that this document is somehow bad, that everything in it is flawed.
And while I agree with Commissioner Ishimaru that there will be changes, undoubtedly there will be, I would be disappointed and I daresay Peggy and Chris Kuczynski would be disappointed if the years of hard work evidenced by this document somehow didn't see the light of day, understandably with whatever changes will be made because of public comment, but somehow if their work is tainted because this is the end of the George Bush era, I think that would be a great disservice not just to OLC but to career employees across federal government who just do their job and give their best and most thoughtful advice to the political appointees who guide them.
So with that, I would say thank you again to everyone and would ask is there a motion to approve the Notice of Proposed Rulemaking for the Regulations and Related Appendix Implementing the ADA Amendments Act of 2008? Is there a motion to approve?
COMMISSIONER BARKER: May I make one brief statement before we do that just because I don't want this group of people who are here today to get the wrong impression. And that is that I think that as Commissioners we have differing views but I think that despite what the public may sometimes see that there is mutual respect and there is an effort to work cooperatively and to assuage people's concerns.
So personally my concern is that if we have two Commissioners that have some additional changes that they have concerns about, then we certainly need to give them an opportunity. And I want to make sure that they know that we want to give them the opportunity to present recommended changes to this draft that they have concerns with.
CHAIR EARP: Is there a motion to approve the document before us today?
COMMISSIONER BARKER: So moved.
CHAIR EARP: Is there a second? I will second. Is there a discussion?
COMMISSIONER GRIFFIN: Yes. I'd like to just say that I don't think the work that OLC has done is tainted in anyway. I think what I was trying to say is that it's not finished and it wasn't finished and we all knew it wasn't finished, and yet here we are talking about it. That was the point I want going to make, tried to make, and I hope people leave with. This will not stop, this will continue. And we will put out hopefully the best document that we agree should go out of this building or frankly, not this building, 131 M Street.
And I do want to commend the staff. They worked hard through Thanksgiving, through a move to another building. And all I'm saying is the work wasn't finished and we shouldn't be talking about it.
COMMISSIONER ISHIMARU: And I would hope that certainly the Chair's statement is not misconstrued to think that some of us were attacking the career staff. Certainly that was not my intention. And I think any intimation that that happened, I think, is just false.
COMMISSIONER GRIFFIN: Ditto.
CHAIR EARP: Any further discussion?
COMMISSIONER BARKER: Call for the vote the second time.
CHAIR EARP: Commissioners in favor of voting for the document before us today, please signify by -- let's do a voice vote and start with the most senior Commissioner, Commissioner Ishimaru.
COMMISSIONER ISHIMARU: No.
CHAIR EARP: Commissioner Griffin.
COMMISSIONER GRIFFIN: No.CHAIR EARP: Commissioner Barker.
COMMISSIONER BARKER: Yes.
CHAIR EARP: And I vote yes. The item is split two in favor, two opposed. It fails. The vote will be recorded on the motion. And I want to thank everyone for joining us here today. We appreciate you being here and look forward to seeing you at 131 M. This meeting -- oh, I need a motion to adjourn.
COMMISSIONER ISHIMARU: Madam Chair, just a technical question. The meeting space at the new building is not complete yet. Do you know when it might be complete? Are we in this limbo land where we don't have a place to meet except for a conference room perhaps?
CHAIR EARP: By the time the next meeting is called that space will be complete.
COMMISSIONER ISHIMARU: So it will be complete in January sometime?
CHAIR EARP: By the time the next meeting is called it will be complete.
COMMISSIONER ISHIMARU: Fair enough.
COMMISSIONER BARKER: So moved.
CHAIR EARP: Second?
COMMISSIONER ISHIMARU: Second.
CHAIR EARP: All in favor.
CHAIR EARP: The ayes have it. The meeting is adjourned. Thank you.
(Whereupon, the above-entitled matter was adjourned at 3:47 p.m.)