Definition of a disability
Introduction
The ADA protects qualified individuals with disabilities from employment discrimination based on disability. Under other laws that
prohibit employment discrimination, it usually is a simple matter to
determine whether an individual is covered because of his or her race,
color, sex, national origin, or even age. However, determining whether
a person is covered by the employment provisions of the ADA —
recognizing whether a person has a disability — can be more complicated. It is first necessary to understand the Act’s very specific
definitions of “disability” and “qualified individual with a disability.”
Like other determinations under the ADA, making these decisions is a
case-by-case process, depending on the circumstances of the particular
employment situation.
The definition of “disability” is tailored to the purpose of eliminating
discrimination prohibited by the ADA. A determination of whether an
individual is protected by the law depends, somewhat, on whether he
or she meets the ADA’s definition of the term “disability.”
Please note that in 2008, the ADA Amendments Act altered the definition of a disability to restore original Congressional intent after
some Supreme Court cases narrowed the definition. As a result of this
law, employers are advised not to spend too much time focusing on
whether an individual has a “disability” but rather focus on how the
individual was or is being treated. In referring to the ADA, the material in this chapter includes the provisions of the ADA Amendments
Act.
The ADA has a three-part definition of “disability.” This definition
reflects the specific types of discrimination experienced by people
1/10
3
Definition of a disability
with disabilities. Accordingly, it is not the same as the definition of
disability in other laws, such as state workers’ compensation laws or
other federal or state laws that provide benefits for people with disabilities and disabled veterans. Indeed, it includes people who may
not even have a disability.
An individual is protected under the ADA if he or she:
•
Has a physical or mental impairment that substantially limits one
or more major life activity,
•
Has a record of such an impairment, or
•
Is regarded as having such an impairment.
An individual must satisfy at least one of these three parts to be considered an individual with a disability. If an individual does not
satisfy the first part, or if you are unsure whether the individual meets
the first part, then you should look at whether the individual satisfies
the second or third part of the definition — whether the individual has
a record of or is regarded as having such an impairment.
As you can see, the first part of the definition covers persons who
actually have physical or mental impairments that substantially limit
one or more life activities. The focus of the first part of the definition
is on the individual and to determine if he or she has a substantially
limiting impairment.
The second and third parts of the definition cover persons who may
not have an impairment that substantially limits a major life activity,
but who have a history of, or have been misclassified as having such
an impairment (a disability), or who are perceived as having an
impairment. The focus of the second and third parts of the definition
is on the reactions of others to a history of impairment or to a perceived impairment. Thus, the history or perception of an impairment
that substantially limits a major life activity is construed as a disability under the ADA.
These parts of the definition reflect a recognition by Congress that
stereotyped assumptions about what constitutes a disability and
unfounded concerns about the limitations of individuals with disabilities form major discriminatory barriers, not only to those persons
presently disabled, but also to those persons previously disabled,
misclassified as previously disabled, or mistakenly perceived to be
disabled.
Employees and applicants
don’t necessarily need to
have a disability to be protected by the law.
To combat the effects of these prevalent misperceptions, the definition of
an individual with a disability includes discrimination against persons
who are treated as if they have an impairment, even if, in fact, they have
no such current incapacity.
The important concept to note is that employees and applicants don’t
really need to have a disability to be protected by the law.
4
1/10
Definition of a disability
Impairments
Who is disabled under the ADA? Since employers need to make
accommodations for individuals with disabilities, it is helpful to know
who is protected by the law. Unlike determining someone’s race, religion, sex, or age under other discrimination laws, determining
“disability” can be a perplexing question. A disability isn’t always
obvious, as might be an individual’s gender. Simply asking an applicant or employee if they are disabled may violate the law.
In general terms, to help determine whether an individual has a disability, first look at whether the individual satisfies the first part of the
definition of the term — whether the individual actually has a physical or mental impairment that substantially limits one or more major
life activity.
According to Congressional Record, a person is considered an individual with a disability under this part of the definition when one or
more of the individual’s important life activities are restricted as to
the conditions, manner, or duration under which they can be performed in comparison to most people.
Remember that the concepts of “impairment,” “major life activity,”
and “substantially limits” are relevant to all three parts of the definition of disability and are discussed in further detail later in this
chapter.
To fall under the first part of the definition of “disability,” the person
must establish the three elements of the part:
•
That he or she has a physical or mental impairment,
•
The impairment is substantially limiting, and
•
The impairment substantially limits one or more major life
activities.
Impairments can be physical or mental in nature. The first inquiry
regarding an individual claiming to have a disability is that it must be
an actual impairment. A person has a disability only if his or her limitations are, were, or have a history of substantially limiting a major
life activity. Individuals are also protected by the law if they are
regarded as being disabled as the result of an impairment. Therefore,
it is essential to distinguish between conditions that are impairments
and those that are not impairments. Not everything that restricts
someone’s activities is an impairment.
7/10
5
Definition of a disability
The proposed rule from September 23, 2009 provides examples of
impairments that will consistently meet the definition of disability.
These include the following:
•
Deafness
•
HIV or AIDS
•
Blindness
•
Multiple sclerosis
•
Intellectual disabilities
•
Muscular dystrophy
•
Partially or completely missing limbs
•
Major depression
•
Mobility impairments
•
Bipolar disorder
•
Autism
•
Post-traumatic stress
disorder
•
Cancer
•
•
Cerebral palsy
Obsessive compulsive
disorder
•
Diabetes
•
Schizophrenia
•
Epilepsy
These are just examples, and this list is not all inclusive. Please note
that this list is in the proposed rule, which may be amended.
Mental impairment
A mental impairment is defined as any mental or psychological disorder, such as intellectual disabilities, organic brain syndrome,
emotional or mental illness, and specific learning disabilities.
Although the ADA prohibits discrimination against individuals based
on mental or emotional disabilities, the ADA does not list specific
conditions that are considered such disabilities. The ADA applies to
any recognized mental or psychological impairment that substantially
limits one or more major life activities. Additionally, the ADA protects an individual with a record of such mental disorder or an
individual perceived by others having such an impairment.
The Diagnostic and Statistical Manual of Mental Disorders is the
principal diagnostic source used by physicians in defining and treating
mental disorders. Psychiatry recognizes a number of classifications of
disorders, including developmental disorders, organic/brain disorders,
thought disorders (i.e., schizophrenia), mood disorders, anxiety disorders, and personality disorders. Common workplace mental illnesses
include: bipolar disorders, anxiety disorders, schizophrenia, and panic
disorders.
6
7/10
Definition of a disability
Situation analysis
Dan has had major depression for almost a year. He has been
intensely sad and socially withdrawn (except for going to
work), has developed serious insomnia, and has had severe
problems concentrating.
Kia, the HR Manager, has been aware of Dan’s condition as it has
come up in his performance evaluations. She knows that he has an
impairment (major depression) that substantially limits his ability
to interact with others, sleep, and concentrate — some major life
activities. The effects of this impairment are severe and have lasted
long enough, such that Kia realizes that Dan has a disability and is
protected by the ADA.
However, even if an individual has a mental impairment as defined
under the ADA, it may still be difficult to determine whether the individual is disabled. Because most mental disabilities are not obvious
and you are generally prohibited under the ADA for making inquiries
to determine if an individual has a disability, knowledge of the disability may be lacking.
Employers are in a particularly difficult position regarding employees
with potential “mental disorders” in those instances where an
employee demonstrates objectively poor work performance, which
may or may not be related to a mental disorder. An issue many
employers deal with is identifying when performance deficiencies
constitute notice to an employer that an employee has a mental disability.
The short answer seems to be that when there is unmistakable disclosure by the employee, medical evidence, or circumstances that
obviously indicate the presence of a disability, and a reasonable lay
person would recognize it, you may rely on the information. Generally, managers are not expected to possess expert knowledge, and
employers are simply expected to act in a morally correct and fair
manner.
Assuming that an individual does have a mental disability covered
under the ADA, and you have knowledge of the disability, you still
must determine whether or not the disability “substantially limits a
major life activity.” Again, focus on the specific individual, not a
group of individuals with the same disease or condition. Indeed, 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 can combine to make the impairment disabling, or any number of other factors.
7/10
7
Definition of a disability
However, some other impairments are inherently substantially limiting, including certain mental disabilities such as mental retardation
and certain learning disabilities. An analysis must be made of whether
or not the mental disability substantially limits the major life activities
of the affected individual, but this need not be an exhaustive analysis.
Additionally, you must then determine whether or not the individual
with the disability is qualified to hold the position (i.e., meet the prerequisites of the position and can perform its essential functions with
or without reasonable accommodations).
You should not assume that an individual who has performed well
academically cannot be substantially limited in activities such as
learning, reading, writing, thinking, or speaking.
Physical impairment
A physical impairment is defined by the current ADA regulations as
any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
•
Neurological
•
Musculoskeletal
•
Special sense organs
•
Respiratory (including speech organs)
•
Cardiovascular
•
Reproductive
•
Digestive
•
Genito-urinary
•
Hemic
•
Lymphatic
•
Skin
•
Endocrine
Please note that the definitions of mental or physical impairments may
change with the publication of new regulations to implement the ADA
Amendments Act.
There is no list of all diseases or conditions that
make up physical or mental
impairments.
8
Neither the statute nor the EEOC regulations list all diseases or conditions that make up physical or mental impairments, because it would
be impossible to provide a comprehensive list, given the variety of
possible impairments. Instead, they describe the type of condition that
constitutes an impairment. You will need to apply the definition to a
given situation to see if the law and its protections apply.
In many cases, it is obvious that a condition is an impairment, where
in others, it is not so obvious. In those instances where it is unclear
whether an individual has an impairment, you may ask the individual
7/10
Definition of a disability
for medical documentation that describes the condition, which will
help to determine if the individual, indeed, has an impairment. Impairments that are episodic or in remission are considered disabilities if
they would substantially limit a major life activity when active.
As you may already see, ADA-related situations must be dealt with
on a case-by-case basis because of all the possible variations among
individuals, their abilities, their impairments, and so forth.
For example, a person suffering from general stress because of job or
personal life pressures would not be considered to have an impairment. However, if this person is diagnosed by a psychiatrist as having
an identifiable stress disorder, he would have an impairment that may
be a disability.
Contagious diseases
A person who has a contagious disease generally has an impairment.
However, the fact that a contagious disease is an impairment does not
automatically mean that it is a disability. If someone has the flu, for
example, he or she would not be protected. To be a disability, an
impairment must substantially limit (or have substantially limited or
be regarded as substantially limiting) one or more major life activities. On the other hand, just because an individual has a contagious
disease does not, by itself, mean that the individual is not protected
by the ADA. The law will still apply if the definitions are met.
Court cases
A teacher had tuberculosis, which had been in remission; however,
she began to have relapses, which affected her respiratory system.
She was suspended with pay for the rest of a school year and was
discharged after a hearing because of the continued recurrence of
the tuberculosis. She was then terminated. The school district based
its decision to terminate on an unsubstantiated belief that the
employee would transmit the disease to others.
The teacher filed a claim under Section 504 of the Rehabilitation Act
(which was the model for the ADA). The Supreme Court held that
the teacher had an impairment and also ruled that some persons
with contagious diseases may pose a threat to others, but not all
persons with contagious diseases should be excluded from protections.
School Board of Nassau Cty. v. Arline, 480 U.S. 273, March 3, 1987.
Moreover, the legislative history of the ADA expressly provides that
infection with the Human Immunodeficiency Virus (HIV) is an
impairment under the Act. Thus, for the purpose of the ADA, an individual with HIV infection has an impairment.
7/10
9
Definition of a disability
Voluntary actions
The cause of the condition
has no effect on whether the
condition is an impairment.
When determining whether a condition constitutes an impairment, the
effects or impact of an individual’s voluntary activity is irrelevant in
making that determination. For example, an individual may develop
lung cancer as a result of smoking. In such an instance, an individual
with lung cancer would have an impairment, notwithstanding the fact
that some apparently voluntary act of the individual may have caused
the impairment. The cause of the condition has no effect on whether
the condition is an impairment.
Mitigating measures
You need to determine a person’s impairment without regard to medication or other assistive devices that he or she may use. You can,
however, consider regular eyeglasses or contact lenses in making this
determination.
You can consider regular
eyeglasses or contact lenses
in determining whether
someone has a disability.
Situation analysis
During lunch one day, Barbara, a supervisor, knocked quietly on the door of Leo, the HR Manager. She asked if she
could talk to him about one of her employees. The employee
had mentioned to Barbara that he had epilepsy. Barbara was
concerned that the employee was a safety risk.
Leo asked Barbara if the employee’s impairment had ever been an
issue at work — whether his performance had ever showed a sign of
problems. Barbara shook her head and said that the employee had
a strong performance record — no indication of a problem. The
employee had indicated that he hadn’t had a seizure in many years
because of the medication he took.
Leo told Barbara not to worry about it unless there is evidence of a
performance or safety problem. Leo also knew that the employee
was most likely covered under the ADA because of the impairment,
even if it was controlled with medication. Leo then told Barbara to
make sure she didn’t treat the employee as if he had an impairment,
as doing so could lead to trouble down the road. He also told her to
keep the information private.
Under the ADA Amendments Act, which altered the ADA, mitigating
measures can include the following:
10
•
Medication,
•
Medical supplies,
•
Medical equipment,
•
Medical appliances,
7/10
Definition of a disability
•
Low-vision devices (not including ordinary eyeglasses or contact
lenses),
•
Prosthetics (including limbs and devices),
•
Hearing aids and cochlear implants or other implantable hearing
devices,
•
Mobility devices,
•
Oxygen therapy equipment and supplies,
•
Assistive technology,
•
Learned behavioral or adaptive neurological modifications,
•
Auxiliary aids or services, or
•
Reasonable accommodations.
As indicated, mitigating measures are used to reduce or relieve the
negative effects of an impairment. In some situations, however, mitigating measures such as medications can cause negative side effects.
Such side effects can be seen as a disability.
Court cases
An employee was considered morbidly obese and was prescribed
weight loss medication. The medication had side effects that necessitated the employee to have frequent and extended bathroom
breaks. His supervisors asked about the breaks and the employee
asked his doctor about alternative medications; however, the frequent breaks continued. A supervisor asked that the employee be
transferred, and the employee indicated that his medication was
now changed and he should not need frequent breaks. However, the
transfer decision held, but there was no other work available at that
time, so the company offered the employee voluntary layoff, which
he accepted. He subsequently filed a suit claiming that the company
transferred him and forced him into the layoff because he was disabled, was regarded as disabled, or was retaliated against for
requesting an accommodation.
Even though the court found in favor of the employer, it indicated
that side effects from medical treatment may themselves constitute
an impairment under the ADA. However, this category of disability
claims is subject to limitation. For a treatment’s side effects to constitute an impairment under the ADA, it is not enough to show just
that the potentially disabling medication or course of treatment was
prescribed or recommended by a licensed medical professional.
Instead, the medication or course of treatment must be required in
the prudent judgment of the medical profession, and there must not
be an available alternative that is equally effective that lacks similarly disabling side effects. The concept of “disability” connotes an
involuntary condition, and if one can alter or remove the “impair-
7/10
10A
Definition of a disability
ment” through an equally effective course of treatment, it should not
be considered “disabling.”
The 3rd Circuit joins the 7th, 8th, and 11th Circuits in finding that
side effects may constitute a disability.
Sulima v. Tobyhanna Army Depot, et. al., No. 08-4684, 3rd Circuit
Court of Appeals, January 29, 2010.
Don’t confuse the fact that you cannot consider the ameliorative
effects of mitigating measures (including medications) in determining
whether an impairment is substantially limiting, with the concept that
side effects of a medication may be an impairment. In situations
where an employee is taking medications to reduce or eliminate the
effects of an impairment, you cannot consider the medication in
regard to whether or not the employee has a disability. However, this
provision does not cover situations where employees suffer negative
side effects that may be viewed as an impairment. This could be true
even if the employee does not have a disability to begin with.
Temporary impairments
Employers frequently ask whether “temporary disabilities” are covered by the ADA. How long an impairment lasts is a factor to be
considered, but does not by itself determine whether a person has a
disability under the ADA. The basic question is whether an impairment “substantially limits” one or more major life activities. This
question is answered by looking at the extent, duration, and impact of
the impairment.
10B
7/10