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Back to Section One | Back to Arts & Entertainment
posted Friday, April 1, 2011 - Volume 39 Issue 13
New EEOC regulations include HIV as a disability
Section One
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New EEOC regulations include HIV as a disability

by Mike Andrew - SGN Staff Writer

The EEOC (Equal Employment Opportunity Commission) - the federal agency responsible for enforcing laws against workplace discrimination - has announced that it will consider HIV infection to be a disability covered by the ADA (Americans with Disabilities Act).

The EEOC's decision will entitle people living with HIV/AIDS to be protected against discrimination in hiring, advancement, job classification, training, workers' compensation, and other terms and conditions of employment. People with HIV/AIDS will now be able to make legal claims, and even to sue their employers to correct discrimination based on their HIV status.

The EEOC revisions were triggered by the ADA Amendments Act (ADAAA) of 2008, which went into effect on January 1, 2009.

The ADAAA overturned several U.S. Supreme Court decisions that Congress believed had interpreted the definition of 'disability' too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, or epilepsy.

The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. The effect of this new definition is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

In the ADAAA, Congress directed the EEOC to revise its regulations to conform to the new law.

The EEOC asked for public comment on proposed regulations and received well over 600 public comments in response. The final regulations reflect this response from stakeholders.

The ADAAA and the final EEOC regulations keep the ADA's definition of the term 'disability' as 'a physical or mental impairment that substantially limits one or more major life activities, a record (or past history) of such an impairment, or being regarded as having a disability.'

The ADAAA makes significant changes in how those terms are interpreted, however, and the EEOC regulations implement those changes.

The regulations clarify that the term 'major life activities' includes 'major bodily functions,' such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions.

The regulations include examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, epilepsy, and bipolar disorder.

Following the ADAAA, the new EEOC regulations also make it easier for individuals to establish coverage under the 'regarded as' part of the definition of 'disability.'

Establishing such coverage used to pose significant difficulties, but under the new law, the focus is on how the person was treated rather than on what an employer may or may not believe about the nature of the individual's impairment.

'The ADAAA is a very important civil rights law,' said EEOC Chair Jacqueline A. Berrien. 'The regulations developed by the Commission to implement the ADAAA clarify the requirements of the law for all stakeholders, which is one of the Commission's most important responsibilities.'

'Based on the hard work we did at the Commission over the past months, I am confident that these regulations will work well for both people with disabilities and employers,' said Commissioner Chai Feldblum, who was appointed to the EEOC by President Obama in April, 2010. 'It was our job as an agency to carry out the intent of this landmark law and I believe we have done so successfully.'

Feldblum was one of the lead negotiators on the original ADA as well as on the Amendments Act, and is openly Lesbian.

The ADAAA regulations, accompanying question and answer documents, and a fact sheet are available on the EEOC website at www.eeoc.gov/laws/statutes/adaaa_info.cfm.

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