28 CFR Parts 35 and 36 Amendment of ADA Title II and Title III Regulations To Implement ADA Amendments Act of 2008 - Final Rule

Examples of Major Life Activities, Other Than the Operations of a Major Bodily Function

In the NPRM, at §§ 35.108(c) and 36.105(c), the Department proposed revisions of the title II and title III lists of examples of major life activities (other than the operations of a major bodily function) to incorporate all of the statutory examples, as well as to provide additional examples included in the EEOC title I final regulation—reaching, sitting, and interacting with others. See 29 CFR 1630.2(i)(1)(i).

A number of commenters representing persons with disabilities or the elderly recommended that the Department add a wide variety of other activities to this first list. Some commenters asked the Department to include references to test taking, writing, typing, keyboarding, or executive function.⁵ Several commenters asked the Department to include other activities as well, such as the ability to engage in sexual activity, perform mathematical calculations, travel, or drive. One commenter asked the Department to recognize that, depending upon where people live, other life activities may fall within the category of major life activities. This commenter asserted, for example, that tending livestock or operating farm equipment can be a major life activity in a farming or ranching community, and that maintaining septic, well or water systems, or gardening, composting, or hunting may be a major life activity in a rural community.

On consideration of the legislative history and the relevant public comments, the Department decided to include ‘‘writing’’ as an additional example in its non-exhaustive list of examples of major life activities in the final rule. The Department notes Congress repeatedly stressed that writing is one of the major life activities that is often affected by a covered learning disability. See, e.g., 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers); H.R. Rep. No. 110–730 pt. 1, at 10–11 (2008).

Other than ‘‘writing,’’ the Department declines to add additional examples of major life activities to these provisions in the final rule. This list is illustrative, and the Department believes that it is neither necessary nor possible to list every major life activity. Moreover, the Department notes that many of the commenters’ suggested inclusions implicate life activities already included on the list. For example, although, as commenters pointed out, some courts have concluded that test taking is a major life activity,⁶ the Department notes that one or more already-included major life activities—such as reading, writing, concentrating, or thinking, among others—will virtually always be implicated in test taking. Similarly, activities such as operating farm equipment, or maintaining a septic or well system, implicate already-listed major life activities such as reaching, lifting, bending, walking, standing, and performing manual tasks.

The commenters’ suggested additions also implicate the operations of various bodily systems that may already be recognized as major life activities. See discussion of §§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii), below. For example, it is the Department’s view that individuals who have cognitive or other impairments that affect the range of abilities that are often described as part of ‘‘executive function’’ will likely be able to assert that they have impairments that substantially limit brain function, which is one of the major bodily functions listed among the examples of major life activities.