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Appendix to Part 1630 - Interpretive Guidance on Title I of the
                 Americans with Disabilities Act

Background

The ADA is a federal antidiscrimination statute designed to
remove barriers which prevent qualified individuals with
disabilities from enjoying the same employment opportunities that
are available to persons without disabilities.

Like the Civil Rights Act of 1964 that prohibits discrimination
on the bases of race, color, religion, national origin, and sex,
the ADA seeks to ensure access to equal employment opportunities
based on merit.  It does not guarantee equal results, establish
quotas, or require preferences favoring individuals with
disabilities over those without disabilities.

However, while the Civil Rights Act of 1964 prohibits any
consideration of personal characteristics such as race or
national origin, the ADA necessarily takes a different approach.
When an individual's disability creates a barrier to employment
opportunities, the ADA requires employers to consider whether
reasonable accommodation could remove the barrier.

The ADA thus establishes a process in which the employer must½
assess a disabled individual's ability to perform the
essential functions of the specific job held or desired.  While
the ADA focuses on eradicating barriers, the ADA does not relieve
a disabled employee or applicant from the obligation to perform
the essential functions of the job.  To the contrary, the ADA is
intended to enable disabled persons to compete in the workplace
based on the same performance standards and requirements that
employers expect of persons who are not disabled.

However, where that individual's functional limitation impedes
such job performance, an employer must take steps to reasonably
accommodate, and thus help overcome the particular impediment,
unless to do so would impose an undue hardship.  Such
accommodations usually take the form of adjustments to the way a
job customarily is performed, or to the work environment itself.
This process of identifying whether, and to what extent, a
reasonable accommodation is required should be flexible and
involve both the employer and the individual with a disability.
Of course, the determination of whether an individual is
qualified for a particular position must necessarily be made on a
case-by-case basis.  No specific form of accommodation is
guaranteed for all individuals with a particular disability.
Rather, an accommodation must be tailored to match the needs of
the disabled individual with the needs of the job's essential
functions.

This case-by-case approach is essential if qualified individuals
of varying abilities are to receive equal opportunities to
compete for an infinitely diverse range of jobs.  For this
reason, neither the ADA nor this regulation can supply the
"correct" answer in advance for each employment decision
concerning an individual with a disability.  Instead, the ADA
simply establishes parameters to guide employers in how to
consider, and take into account, the disabling condition
involved.

Introduction

The Equal Employment Opportunity Commission (the Commission or
EEOC) is responsible for enforcement of title I of the Americans
with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. (1990),
which prohibits employment discrimination on the basis of
disability. The Commission believes that it is essential to issue
interpretive guidance concurrently with the issuance of this part
in order to ensure that qualified individuals with disabilities
understand their rights under this part and to facilitate and
encourage compliance by covered entities. This Appendix
represents the

Commission's interpretation of the issues discussed, and the
Commission will be guided by it when resolving charges of
employment discrimination. The Appendix addresses the major
provisions of this part and explains the major concepts of
disability rights.

The terms "employer" or "employer or other covered entity" are
used interchangeably throughout the Appendix to refer to all
covered entities subject to the employment provisions of the ADA.

Section 1630.1 Purpose, Applicability and Construction
Section 1630.1(a) Purpose

The Americans with Disabilities Act was signed into law on July
26, 1990. It is an antidiscrimination statute that requires that
individuals with disabilities be given the same consideration for
employment that individuals without disabilities are given. An
individual who is qualified for an employment opportunity cannot
be denied that opportunity because of the fact that the
individual is disabled.  The purpose of title I and this part is
to ensure that qualified individuals with disabilities are
protected from discrimination on the basis of disability.

The ADA uses the term "disabilities" rather than the term
"handicaps"  used  in  the Rehabilitation Act of 1973, 29 U.S.C.
701-796. Substantively, these terms are equivalent. As noted by
the House Committee on the Judiciary, "[t]he use of the term
'disabilities' instead of the term 'handicaps' reflects the
desire of the Committee to use the most current terminology. It
reflects the preference of persons with disabilities to use that
term rather than 'handicapped' as used in previous laws, such as
the Rehabilitation Act of 1973 ...." H.R. Rep. No. 485 Part 3,
101st Cong., 2d Sess. 26-27 (1990) [hereinafter House Judiciary
Report]; see also S. Rep. No. 116, 101st Cong., 1st Sess. 21
(1989) [hereinafter Senate Report]; H.R. Rep. No. 485 Part 2,
101st Cong., 2d Sess. 50-51 (1990) [hereinafter House Labor
Report].

The use of the term "Americans" in the title of the ADA is not
intended to imply that the Act only applies to United States
citizens. Rather, the ADA protects all qualified individuals with
disabilities, regardless of their citizenship status or
nationality.

Section 1630.1(b) and (c) Applicability and Construction Unless
expressly stated otherwise, the standards applied in the ADA are
not intended to be lesser than the standards applied under the
Rehabilitation Act of 1973.

The ADA does not preempt any Federal law, or any state or local
law, that grants to individuals with disabilities protection
greater than or equivalent to that provided by the ADA. This
means that the existence of a lesser standard of protection to
individuals with disabilities under the ADA will not provide a
defense to failing to meet a higher standard under another law.
Thus, for example, title I of the ADA would not be a defense to
failing to collect information required to satisfy the
affirmative action requirements of Section 503 of the
Rehabilitation Act. On the other hand, the existence of a lesser
standard under another law will not provide a defense to failing
to meet a higher standard under the ADA. See House Labor Report
at 135; House Judiciary Report at 69-70.

This also means that an individual with a disability could choose
to pursue claims under a state discrimination or tort law that
does not confer greater substantive rights, or even confers fewer
substantive rights, if the potential available remedies would be
greater than those available under the ADA and this part. The ADA
does not restrict an individual with a disability from pursuing
such claims in addition to charges brought under this part. House
Judiciary at 69-70.

The ADA does not automatically preempt medical standards or
safety requirements established by Federal law or regulations. It
does not preempt State, county, or local laws, ordinances or
regulations that are consistent with this part, and are designed
to protect the public health from individuals who pose a direct
threat, that cannot be eliminated or reduced by reasonable
accommodation, to the health or safety of others. However, the
ADA does preempt inconsistent requirements established by state
or local law for safety or security sensitive positions.  See
Senate Report at 27; House Labor Report at 57.

An employer allegedly in violation of this part cannot
successfully defend its actions by relying on the obligation to
comply with the requirements of any state or local law that
imposes prohibitions or limitations on the eligibility of
qualified individuals with disabilities to practice any
occupation or profession. For example, suppose a municipality has
an ordinance that prohibits individuals with tuberculosis from
teaching school children. If an individual with dormant
tuberculosis challenges a private school's refusal to hire him or
her because of the tuberculosis, the private school would not be
able to rely on the city ordinance as a defense under the ADA.

Sections 1630.2(a)-(f) Commission, Covered Entity, etc. The
definitions section of part 1630 includes several terms that are
identical, or almost identical, to the terms found in title VII
of the Civil Rights Act of 1964. Among these terms are
"Commission," "Person," "State," and "Employer." These terms are
to be given the same meaning under the ADA that they are given
under title VII.

In general, the term "employee" has the same meaning that it is
given under title VII. However, the ADA's definition of
"employee" does not contain an exception, as does title VII, for
elected officials and their personal staffs. It should be further
noted that all state and local governments are covered by title
II of the ADA whether or not they are also covered by this part.
Title II, which is enforced by the Department of Justice, becomes
effective on January 26, 1992.  See 28 CFR part 35.

The term "covered entity" is not found in title VII. However, the
title VII definitions of the entities included in the term
"covered entity" (e.g., employer, employment agency, etc.) are
applicable to the ADA.

Section 1630.2(g) Disability

In addition to the term "covered entity," there are several other
terms that are unique to the ADA. The first of these is the term
"disability." Congress adopted the definition of this term from
the Rehabilitation Act definition of the term "individual with
handicaps." By so doing, Congress intended that the relevant½
caselaw developed under the Rehabilitation Act be generally
applicable to the term "disability" as used in the ADA. Senate
Report at 21; House Labor Report at 50; House Judiciary Report at
27.

The definition of the term "disability" is divided into three
parts. An individual must satisfy at least one of these parts in
order to be considered an individual with a disability for
purposes of this part. An individual is considered to have a
"disability" if that individual either (1) has a physical or
mental impairment which substantially limits one or more of that
person's major life activities, (2) has a record of such an
impairment, or, (3) is regarded by the covered entity as having
such an impairment.

To understand the meaning of the term "disability," it is
necessary to understand, as a preliminary matter, what is meant
by the terms "physical or mental impairment," "major life
activity," and "substantially limits." Each of these terms is
discussed below.

Section 1630.2(h) Physical or Mental Impairment

This term adopts the definition of the term "physical or mental
impairment" found in the regulations implementing Section 504 of
the Rehabilitation Act at 34 CFR part 104. It defines physical or
mental impairment as any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more
of several body systems, or any mental or psychological disorder.

The existence of an impairment is to be determined without regard
to mitigating measures such as medicines, or assistive or
prosthetic devices. See Senate Report at 23, House Labor Report
at 52, House Judiciary Report at 28. For example, an individual
with epilepsy would be considered to have an impairment even if
the symptoms of the disorder were completely controlled by
medicine. Similarly, an individual with hearing loss would be
considered to have an impairment even if the condition were
correctable through the use of a hearing aid.

It is important to distinguish between conditions that are
impairments and physical, psychological, environmental, cultural
and economic characteristics that are not impairments. The
definition of the term "impairment" does not include physical
characteristics such as eye color, hair color, left-handedness,
or height, weight or muscle tone that are within "normal" range
and are not the result of a physiological disorder. The
definition, likewise, does not include characteristic
predisposition to illness or disease. Other conditions, such as
pregnancy, that are not the result of a physiological disorder
are also not impairments. Similarly, the definition does not
include common personality traits such as poor judgment or a
quick temper where these are not symptoms of a mental or
psychological disorder. Environmental, cultural, or economic
disadvantages such as poverty, lack of education or a prison
record are not impairments. Advanced age, in and of itself, is
also not an impairment. However, various medical conditions
commonly associated with age, such as hearing loss, osteoporosis,
or arthritis would constitute impairments within the meaning of
this part. See Senate Report at 22-23; House Labor Report at
51-52; House Judiciary Report at 28-29.

Section 1630.2(i) Major Life Activities

This term adopts the definition of the term "major life
activities" found in the regulations implementing Section 504 of
the Rehabilitation Act at 34 CFR part 104. "Major life
activities" are those basic activities that the average person in
the general population can perform with little or no difficulty.
Major life activities include caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. This list is not exhaustive. For example,
other major life activities include, but are not limited to,
sitting, standing, lifting, reaching. See Senate Report at 22;
House Labor Report at 52; House Judiciary Report at 28.

Section 1630.2(j) Substantially Limits

Determining whether a physical or mental impairment exists is
only the first step in determining whether or not an individual
is disabled. Many impairments do not impact an individual's life
to the degree that they constitute disabling impairments. An
impairment rises to the level of disability if the impairment
substantially limits one or more of the individual's major life
activities. Multiple impairments that combine to substantially
limit one or more of an individual's major life activities also
constitute a disability.

The ADA and this part, like the Rehabilitation Act of 1973, do
not attempt a "laundry list" of impairments that are
"disabilities." The determination of whether an individual has a
disability is not necessarily based on the name or diagnosis of
the impairment the person has, but rather on the effect of that
impairment on the life of the individual. Some impairments may be
disabling for particular individuals but not for others,
depending on the stage of the disease or disorder, the presence
of other impairments that combine to make the impairment
disabling or any number of other factors. Other impairments,
however, such as HIV infection, are inherently substantially
limiting.

On the other hand, temporary, non-chronic impairments of short
duration, with little or no long term or permanent impact, are
usually not disabilities. Such impairments may include, but are
not limited to, broken limbs, sprained joints, concussions,
appendicitis, and influenza.  Similarly, except in rare
circumstances, obesity is not considered a disabling impairment.

An impairment that prevents an individual from performing a major
life activity substantially limits that major life activity. For
example, an individual whose legs are paralyzed is substantially
limited in the major life activity of walking because he or she
is unable, due to the impairment, to perform that major life
activity.

Alternatively, an impairment is substantially limiting if it
significantly restricts the duration, manner or condition under
which an individual can perform a particular major life activity
as compared to the average person in the general population's
ability to perform that same major life activity. Thus, for
example, an individual who, because of an impairment, can only
walk for very brief periods of time would be substantially
limited in the major life activity of walking. An individual who
uses artificial legs would likewise be substantially limited in
the major life activity of walking because the individual is
unable to walk without the aid of prosthetic devices. Similarly,
a diabetic who without insulin would lapse into a coma would be
substantially limited because the individual cannot  perform
major life activities without the aid of medication. See Senate
Report at 23; House Labor Report at 52. It should be noted that
the term "average person" is not intended to imply a precise
mathematical "average."

Part 1630 notes several factors that should be considered in
making the determination of whether an impairment is
substantially limiting. These factors are (1) the nature and
severity of the impairment, (2) the duration or expected duration
of the impairment, and (3) the permanent or long term impact, or
the expected permanent or long term impact of, or resulting from,
the impairment. The term "duration," as used in this context,
refers to the length of time an impairment persists, while the
term "impact" refers to the residual effects of an impairment.
Thus, for example, a broken leg that takes eight weeks to heal is
an impairment of fairly brief duration. However, if the broken
leg heals improperly, the "impact" of the impairment would be the
resulting permanent limp.  Likewise, the effect on cognitive
functions resulting from traumatic head injury would be the
"impact" of that impairment.

The determination of whether an individual is substantially
limited in a major life activity must be made on a case by case
basis, without regard to mitigating measures such as medicines,
or assistive or prosthetic devices. An individual is not
substantially limited in a major life activity if the limitation,
when viewed in light of the factors noted above, does not amount
to a significant restriction when compared with the abilities of
the average person. For example, an individual who had once been
able to walk at an extraordinary speed would not be substantially
limited in the major life activity of walking if, as a result of
a physical impairment, he or she were only able to walk at an
average speed, or even at moderately below average speed.

It is important to remember that the restriction on the
performance of the major life activity must be the result of a
condition that is an impairment. As noted earlier, advanced age,
physical or personality characteristics, and environmental,
cultural, and economic disadvantages are not impairments.
Consequently, even if such factors substantially limit an
individual's ability to perform a major life activity, this
limitation will not constitute a disability. For example, an
individual who is unable to read because he or she was never
taught to read would not be an individual with a disability
because lack of education is not an impairment. However, an
individual who is unable to read because of dyslexia would be an
individual with a disability because dyslexia, a learning
disability, is an impairment.

If an individual is not substantially limited with respect to any
other major life activity, the individual's ability to perform
the major life activity of working should be considered. If an
individual is substantially limited in any other major life
activity, no determination should be made as to whether the
individual is substantially limited in working. For example, if
an individual is blind, i.e., substantially limited in the major
life activity of seeing, there is no need to determine whether
the individual is also substantially limited in the major life
activity of working. The determination of whether an individual
is substantially limited in working must also be made on a case
by case basis.

This part lists specific factors that may be used in making the
determination of whether the limitation in working is
"substantial." These factors are:

(1) the geographical area to which the individual has reasonable
access;

(2) the job from which the individual has been disqualified
because of an impairment, and the number and types of jobs
utilizing similar training, knowledge, skills or abilities,
within that geographical area, from which the individual is also
disqualified because of the impairment (class of jobs); and/or

(3) the job from which the individual has been disqualified
because of an impairment, and the number and types of other jobs
not utilizing similar training, knowledge, skills or abilities,
within that geographical area, from which the individual is also
disqualified because of the impairment (broad range of jobs in
various classes).

Thus, an individual is not substantially limited in working just
because he or she is unable to perform a particular job for one
employer, or because he or she is unable to perform a specialized
job or profession requiring extraordinary skill, prowess or
talent. For example, an individual who cannot be a commercial
airline pilot because of a minor vision impairment, but who can
be a commercial airline co-pilot or a pilot for a courier
service, would not be substantially limited in the major life
activity of working. Nor would a professional baseball pitcher
who develops a bad elbow and can no longer throw a baseball be
considered substantially limited in the major life activity of
working. In both of these examples, the individuals are not
substantially limited in the ability to perform any other major
life activity and, with regard to the major life activity of
working, are only unable to perform either a particular
specialized job or a narrow range of jobs. See Forrisi v. Bowen,
794 F.2d 931 (4th Cir. 1986); Jasany v. U.S. Postal Service, 755
F.2d 1244 (6th Cir. 1985); E.E Black, Ltd. v. Marshall, 497 F.
Supp. 1088 (D. Hawaii 1980). On the other hand, an individual
does not have to be totally unable to work in order to be
considered substantially limited in the major life activity of
working. An individual is substantially limited in working if the
individual is significantly restricted in the ability to perform
a class of jobs or a broad range of jobs in various classes, when
compared with the ability of the average person with comparable
qualifications to perform those same jobs. For example, an
individual who has a back condition that prevents the individual
from performing any heavy labor job would be substantially
limited in the major life activity of working because the
individual's impairment eliminates his or her ability to perform
a class of jobs. This would be so even if the individual were
able to perform jobs in another class, e.g., the class of
semi-skilled jobs. Similarly, suppose an individual has an
allergy to a substance found in most high rise office buildings,
but seldom found elsewhere, that makes breathing extremely
difficult. Since this individual would be substantially limited
in the ability to perform the broad range of jobs in various
classes that are conducted in high rise office buildings within
the geographical area to which he or she has reasonable access,
he or she would be substantially limited in working.

The terms "number and types of jobs" and "number and types of
other jobs," as used in the factors discussed above, are not
intended to require an onerous evidentiary showing. Rather, the
terms only require the presentation of evidence of general
employment demographics and/or of recognized occupational
classifications that indicate the approximate number of jobs
(e.g., "few," "many," "most") from which an individual would be
excluded because of an impairment.

If an individual has a "mental or physical impairment" that
"substantially limits" his or her ability to perform one or more
"major life activities," that individual will satisfy the first
part of the regulatory definition of "disability" and will be
considered an individual with a disability. An individual who
satisfies this first part of the definition of the term
"disability" is not required to demonstrate that he or she
satisfies either of the other parts of the definition. However,
if an individual is unable to satisfy this part of the
definition, he or she may be able to satisfy one of the other
parts of the definition.

Section 1630.2(k) Record of a Substantially Limiting Condition
The second part of the definition provides that an individual
with a record of an impairment that substantially limits a major
life activity is an individual with a disability. The intent of
this provision, in part, is to ensure that people are not
discriminated against because of a history of disability. For
example, this provision protects former cancer patients from
discrimination based on their prior medical history. This
provision also ensures that individuals are not discriminated
against because they have been misclassified as disabled. For
example, individuals misclassified as learning disabled are
protected from discrimination on the basis of that erroneous
classification. Senate Report at 23; House Labor Report at 52-53;
House Judiciary Report at 29.

This part of the definition is satisfied if a record relied on by
an employer indicates that the individual has or has had a
substantially limiting impairment. The impairment indicated in
the record must be an impairment that would substantially limit
one or more of the individual's major life activities. There are
many types of records that could potentially contain this
information, including but not limited to, education, medical, or
employment records.

The fact that an individual has a record of being a disabled
veteran, or of disability retirement, or is classified as
disabled for other purposes does not guarantee that the
individual will satisfy the definition of "disability" under part
1630. Other statutes, regulations and programs may have a
definition of "disability" that is not the same as the definition
set forth in the ADA and contained in part 1630. Accordingly, in
order for an individual who has been classified in a record as
"disabled" for some other purpose to be considered disabled for
purposes of part 1630, the impairment indicated in the record
must be a physical or mental impairment that substantially limits
one or more of the individual's major life activities.

Section 1630.2(l) Regarded as Substantially Limited in a Major
Life Activity If an individual cannot satisfy either the first
part of the definition of "disability" or the second "record of"
part of the definition, he or she may be able to satisfy the
third part of the definition. The third part of the definition
provides that an individual who is regarded by an employer or
other covered entity as having an impairment that substantially
limits a major life activity is an individual with a disability.

There are three different ways in which an individual may satisfy
the definition of "being regarded as having a disability":

(1) The individual may have an impairment which is not
substantially limiting but is perceived by the employer or other
covered entity as constituting a substantially limiting
impairment;

(2) the individual may have an impairment which is only
substantially limiting because of the attitudes of others toward
the impairment; or

(3) the individual may have no impairment at all but is regarded
by the employer or other covered entity as having a substantially
limiting impairment. Senate Report at 23; House Labor Report at
53; House Judiciary Report at 29.

An individual satisfies the first part of this definition if the
individual has an impairment that is not substantially limiting,
but the covered entity perceives the impairment as being
substantially limiting. For example, suppose an employee has
controlled high blood pressure that is not substantially
limiting. If an employer reassigns the individual to less
strenuous work because of unsubstantiated fears that the
individual will suffer a heart attack if he or she continues to
perform strenuous work, the employer would be regarding the
individual as disabled.

An individual satisfies the second part of the "regarded as"
definition if the individual has an impairment that is only
substantially limiting because of the attitudes of others toward
the condition. For example, an individual may have a prominent
facial scar or disfigurement, or may have a condition that
periodically causes an involuntary jerk of the head but does not
limit the individual's major life activities. If an employer
discriminates against such an individual because of the negative
reactions of customers, the employer would be regarding the
individual as disabled and acting on the basis of that perceived
disability. See Senate Report at 24; House Labor Report at 53;

House Judiciary Report at 30-31.

An individual satisfies the third part of the "regarded as"
definition of "disability" if the employer or other covered
entity erroneously believes the individual has a substantially
limiting impairment that the individual actually does not have.
This situation could occur, for example, if an employer
discharged an employee in response to a rumor that the employee
is infected with Human Immunodeficiency Virus (HIV). Even though
the rumor is totally unfounded and the individual has no
impairment at all, the individual is considered an individual
with a disability because the employer perceived of this
individual as being disabled. Thus, in this example, the
employer, by discharging this employee, is discriminating on the
basis of disability.

The rationale for the "regarded as" part of the definition of
disability was articulated by the Supreme Court in the context of
the Rehabilitation Act of 1973 in School Board of Nassau County
v. Arline, 480 U.S. 273 (1987). The Court noted  that, although
an individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of others
may prove just as disabling. "Such an impairment might not
diminish a person's physical or mental capabilities, but could
nevertheless substantially limit that person's ability to work as
a result of the negative reactions of others to the impairment."
480 U.S. at 283.  The Court concluded that by including "regarded
as" in the Rehabilitation Act's definition, "Congress
acknowledged that society's accumulated myths and fears about
disability and diseases are as handicapping as are the physical
limitations that flow from actual impairment."  480 U.S. at 284.

An individual rejected from a job because of the "myths, fears
and sterotypes" associated with disabilities would be covered
under this part of the definition of disability, whether or not
the employer's or other covered entity's perception were shared
by others in the field and whether or not the individual's actual
physical or mental condition would be considered a disability
under the first or second part of this definition.  As the
legislative history notes, sociologists have identified common
attitudinal barriers that frequently result in employers
excluding individuals with disabilities.  These include concerns
regarding productivity, safety, insurance, liability, attendance,
cost of accommodation and accessibility, workers' compensation
costs, and acceptance by coworkers and customers.

Therefore, if an individual can show that an employer or other
covered entity made an employment decision because of a
perception of disability based on "myth, fear or stereotype," the
individual will satisfy the "regarded as" part of the definition
of disability.  If the employer cannot articulate a
non-discriminatory reason for the employment action, an inference
that the employer is acting on the basis of "myth, fear or
stereotype" can be drawn.