By Corey Lovato, Staff Attorney and Rose Daly-Rooney, Legal Director  

In a recent blog post, you learned that to be covered by the employment discrimination protections of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, you need to be covered as a person with a disability.  There, we discussed that disability is a physical or mental impairment that substantially limits one or more major life activities (including major bodily functions).  We also discussed that there are three ways to prove disability:  actual, record of, or regarded as.  In today’s blog post, we share an important strategy in establishing that you are a person with a disability: in most cases, you don’t need to prove that you are substantially limited in the major life activity of working. 

Here are a few reasons why you should not rely upon working as the major life activity that impacts your impairment.      

1. When you rely on working as the major life activity, you must show that you are substantially limited in working in a class or a broad range of jobs in various classes as compared to most people in the general population.  Showing you can’t perform a unique aspect of a single job is not enough. For example, you will need to show that you are limited in performing a class of jobs or a broad range of jobs in various classes:
   • based on the nature of the work, such as assembly line jobs, food service jobs or law enforcement jobs;
   • based on job-related requirements, such as jobs requiring repetitive or heavy lifting or jobs requiring repetitive bending, standing, and stooping; or
   • based on work conditions, such as jobs requiring frequent work in the heat or jobs requiring work in noisy environments.

As you can see, proving your impairment or condition substantially limits working takes more effort than showing you are substantially limited in another major life activity.

2. Generally, you can prove you have a disability by showing a substantial limitation in a major life activity other than working. In 2008, Congress changed the ADA definition of disability, in part, by expanding the list of major life activities to include more activities and adding major bodily functions.  This means there are more options for showing how an impairment results in a substantial limitation.  These two cases decided before Congress strengthened the ADA support this tip.
   • In 2005, the Sixth Circuit Court of Appeals in Olds v. UPS, ruled that an employee with bone marrow cancer had not proven that he was substantially limited in working in a broad class of jobs because of lifting restrictions. Today, this employee could argue that cancer substantially limits the major bodily function of normal cell growth, instead of relying on working as the major life activity that was substantially limited.
   • In 2007, the Tenth Circuit Court of Appeals in Corley v. Dept of Veterans Affairs ruled that an employee had not shown that epilepsy substantially limited working in a broad class of jobs because he had not proven he was precluded from operating machinery, driving vehicles, childcare, and military service. Now under the expanded disability definition, an employee can show that epilepsy substantially limits the major bodily function of neurological function.

3. When you believe that your employer took adverse employment actions (other than denial of a reasonable accommodation) because of your disability, you can use the improved regarded as prong of the disability definition. Under the expanded definition of disability, a covered entity regards an individual as having a disability any time it takes a prohibited action (e.g., failure to promote, termination, etc) against the individual because of an actual or perceived impairment.  The regarded-as prong does not require proving a substantial limitation.   Here’s how it works: an accountant is fired after he reveals that he has been diagnosed with major depression and a firefighter candidate is not hired because she has a mild form of hemophilia. Using the regarded-as prong, these employees only need to show that the employer took an adverse action because of their impairments.  Note, however, that the regarded-as prong of disability does not apply in situations in which there is a dispute about reasonable accommodations because only people with an actual or record of a disability may be entitled to reasonable accommodation.

TEST YOUR KNOWLEDGE.    Consider this hypothetical. Carmen works as a high school teacher and lives with Generalized Anxiety Disorder, an impairment that affects her life by causing panic attacks and racing, worrying thoughts about work, money, and relationships that Carmen cannot control. She has difficulty with unplanned meetings at work and changes that deviate from her planned schedule. Carman’s work-related worries follow her from job to job, and she sees a therapist once a week to manage her thoughts and control her emotions.  Carmen and her therapist develop a list of accommodations to request from her employer to allow her to perform some job duties affected by the work stressors.  When asked to provide documentation of a disability to accompany the accommodation request, what major life activity should Carmen check on the form?

ANSWER:  First, Carmen can’t use the regarded-as prong because she needs a reasonable accommodation and must show that she has an actual disability.  Second, Carmen and her therapist should look first at the Equal Employment Opportunity Commission’s (EEOC’s) list of major life activities (including major bodily functions) for a major activity other than working in a class of jobs. They may prefer to select the major bodily function of brain function. (EEOC Q&A 8).  EEOC’s rules state that other mental health disabilities, such as Major Depression, will virtually always show a substantial limitation in the major bodily function of brain function.  Anxiety also affects brain function.  Carmen and her therapist may consider checking, as applicable, any of the following major life activities: thinking, concentrating, or interacting with others.  Finally, under the broader coverage of the amended ADA, Carmen may be able to show anxiety substantially limits her in a class of jobs requiring changes from routine and a daily schedule, but it requires more effort and may be disputed.

The tips and cases discussed in this blog post are based on rules and guidance developed by the U.S. EEOC that interprets and explains the expanded definition of disability in the Americans with Disabilities Amendment Act of 2008.  To review the EEOC’s explanation about working as a major life activity, go here and find “Appendix” and then find “working as a major life activity” in section 1630.2.

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