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Disability discrimination - #26
by Ross Runkel at LawMemo
The Americans with Disabilities Act (ADA) prohibits an employer from discriminating on the basis of an individual's disability, and requires an employer to reasonably accommodate an employee's disability.
The ADA's definition of "disability" is somewhat complex, and it is this definition that determines whether an individual is protected by the ADA. Most states have statutes that are similar to the ADA, but many of them define "disability" in a somewhat different way - often to the advantage of the employee.
The ADA says a person has a disability if that person (1) actually has a disability, or (2) has a record of having a disability (even if not currently disabled), or (3) is regarded as having a disability (even if not currently, or ever, disabled).
An individual has a disability if that individual:
- has a physical or mental impairment
- that substantially limits
- a major life activity -- and
- the individual can perform the essential job duties with or with an accommodation.
Let's look at each one of these:
Physical or mental impairment. The idea of an "impairment" is that there must be a medically recognized condition that impairs the individual's ability to function. On the physical side, these can be diseases (contagious or not), malformations, or absence of limbs. Excluded are common characteristics such as left-handedness, baldness, and other things that don't effect the ability to function. On the mental side, it includes psychological disorders and mental disorders, including learning disabilities, mental illnesses, and mental retardation. Excluded are things like being overly aggressive or argumentative, or having poor judgment.
Some things are specifically excluded by the ADA, such as homosexuality, pedophilia, kleptomania, and others.
Major life activity. Some things are clearly "major life activities," such as walking, breathing, hearing, caring for one's self, seeing, speaking, reproducing, eating. Others clearly are not major life activities, such as playing the piano, lifting heavy boxes.
Although work is a "major life activity," it is not enough to show that the individual is unable to perform a specific job. The courts require that the individual be precluded from working in a wide range of job or classifications of jobs in the geographical area, based on that person's skills, knowledge, and abilities. Expert testimony often is required in order to prove this.
Substantially limits. The impairment must substantially limit one of the major life activities. Courts do not simply look at the impairment and call it a disability. For example, it is not enough that the individual has cancer, is diabetic, or has a mental disorder. The court will look at the individual's unique situation to see whether there is a substantial limitation of a major life activity. The limitation must be frequent and must be either permanent or long-term. Thus, a person who has a broken bone or major illness that totally incapacitates her for a short period is not disabled under the ADA.
Corrective measures. Some conditions can be corrected by taking medication or using appliances such as spectacles. The US Supreme Court has held that courts are required to decide whether a person is disabled based on their situation when they are using their medication or appliance. For example, a person had very bad vision (20/400) but could have good vision (20/20) by wearing glasses. The court will hold that this person's vision, as corrected, does not substantially limit that person's abilities, so the person does not have a disability and is not protected by the ADA. Many diseases can be controlled by medication, and some conditions such as deafness can be helped by certain appliances such as hearing aids, so individuals in those situations are not disabled under the ADA.
Able to perform essential functions with or without accommodation. Even if a person is disabled, she still must be qualified for the job in question. This means she must be able to perform the essential functions of the particular job. However, the ability to perform is measured on the assumption that the employer has reasonably accommodated the employee. For example, the employer might need to eliminate some of the "non-essential" functions or duties of the job.
Harassment because a person has a disability is a form of disability discrimination.
Over 19 percent of the charges filed with the EEOC involve claims of disability discrimination.
Coming next: Reasonable accommodation of disability #27: Employment Law 101
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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