By Jessica Jansepar Ross, Esq., Guest Contributor

The Americans with Disabilities (ADA) and the Rehabilitation Act are two important federal laws that prohibit covered employers from discriminating against qualified employees and applicants with disabilities. When determining whether an employee (or applicant) is covered by these laws, three questions need to be answered:

• Does the employee (or applicant) satisfy the ADA’s or Rehabilitation Act’s definition of disability?
• Is the employee (or applicant) qualified for the actual or desired job?
• Is the employer covered by the ADA or Rehabilitation Act?

This blog post will provide information, examples, and resources that relate to the first question.

Definition of Disability

The ADA and Rehabilitation Act, which share virtually the same definition, prohibit discrimination against employees or applicants with:

1) an actual disability,

2) a record of a disability, or

3) who are regarded as disabled.

The ADA and Rehabilitation Act also prohibits discrimination against employees because of their association with people with disabilities, such as parents, children, spouses, partners, business associates, friends, and other associates.  The U.S. Equal Employment Opportunity Commission (EEOC) enforces the ADA’s employment protections.

Actual Disability

Under the ADA, a disability means a physical or mental impairment that substantially limits one or more major life activities.  According to the EEOC, this means that minor conditions of short duration, such as sprains, generally won’t be covered. (Q&A #4).

Decisions about whether an employee or applicant has a disability are made on a case-by-case basis.  Understanding the meaning of major life activity and substantial limitation is necessary to make that individualized determination.

Major life activities include major life activities and bodily functions.  EEOC lists examples of major life activities, such as seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and a in a class or broad range of jobs in various classes.  (See Q&A #8.) EEOC also list examples of major bodily functions, such as functions of the immune system, special sense organs and skin, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions and the operation of individual organ within a body system ( e.g., kidney, liver, or pancreas). (See Q&A #8.)

To have an actual disability an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent or severely or significantly limit a major life activity to be considered substantially limiting. For more information about how to figure out if a condition is substantially limiting, read Q&A #9 here.

Although decisions about whether a condition is a disability are usually made on a case-by-case basis, the EEOC rules state that the following conditions will “virtually always” be a disability because of how these conditions impact major life activities or functions.  Here is the EEOC’s list at Q&A 19:

• deafness substantially limits hearing
• blindness substantially limits seeing
• an intellectual disability substantially limits brain function;
• partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
• autism substantially limits brain function;
• cancer substantially limits normal cell growth;
• cerebral palsy substantially limits brain function;
• diabetes substantially limits endocrine function;
• epilepsy substantially limits neurological function;
• Human Immunodeficiency Virus (HIV) infection substantially limits immune function;
• multiple sclerosis substantially limits neurological function;
• muscular dystrophy substantially limits neurological function; and
• major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.

Even if your condition is not on this list, it does not mean it does not satisfy the ADA or Rehabilitation Act’s disability definition.  Talk to an attorney if you have a question about whether your condition is a disability.

Not every medical condition will qualify as a disability.  You can find more in-depth discussion about these considerations and how the EEOC interprets disability here.

Record of Disability

If you previously had a disability, you are still protected under the ADA and Rehabilitation Act as a person with a “record of” disability.  A record of a disability arises in two situations:  an individual who does not currently have a substantially limiting impairment but who had one in the past or the individual was misclassified as having a substantially limiting impairment. For example, an employee who is a cancer survivor and is cancer-free and an individual who was misdiagnosed as having an intellectual disability because the evaluator did not do the testing in the native language that yielded incorrect scores would satisfy the meaning of having a record of disability.

“Regarded as” an individual with a Disability

Lastly, a covered entity will regard an individual as having a disability any time it takes a prohibited action against the individual because of an actual or perceived impairment.  Prohibited actions include actions such as demoting, firing, refusing to hire, or denying a pay raise or advancement because of an actual or perceived disability.  For example, if John applies for a management position in his company and the supervisor rejects his application because she heard a rumor that he is living with a bipolar diagnosis and doesn’t think he can “handle the pressure”, she regarded him as disabled.  This is true whether or not John is living with bipolar.

An employer can defeat a claim that they regarded an individual as disabled by showing that the impairment at issue, whether the individual has the impairment or not, is both transitory and minor.  John’s supervisor could not satisfy this defense because bipolar is neither transitory nor minor.  If, however, an employer fired an employee for failing to call in sick when they had the flu, they could likely show that the flu is transitory and minor.

Exclusions

The ADA and Rehabilitation Act excludes from coverage a person who currently engages in the illegal use of drugs when a covered entity acts based on illegal drug use. However, the ADA covers persons who no longer engages in the illegal use of drugs may be an individual with a disability if they have successfully completed a supervised drug rehabilitation program or have otherwise been rehabilitated successfully, or are participating in a supervised rehabilitation program ( e.g., Narcotics Anonymous).  Congress excluded some conditions recognized as mental impairments, such as kleptomania, pyromania, and compulsive gambling.

Resources

Here are links to resources about the meaning of disability under the ADA and Rehabilitation Act:

• Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008
• Fact Sheet about EEOC Final Rules
• Americans with Disabilities Amendment Act of 2008
• EEOC Final Regulations About Disability
• Job Accommodation Network’s Compliance Series by Disability

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