INSTRUCTIONS FOR FIELD OFFICES:
ANALYZING ADA CHARGES
AFTER SUPREME COURT DECISIONS
ADDRESSING "DISABILITY" AND "QUALIFIED"

These instructions, issued to the Equal Employment Opportunity Commission's (EEOC) field offices on July 26, 1999, summarize the Supreme Court's decisions in Bragdon v. Abbot, Sutton v. United Airlines, Inc., Murphy v. United Percel Service, Inc., Cleveland v. Policy Management Systems Corp., and Albertsons, Inc. v. Kirkingburg and explain their impact on the processing of charges under the Americans with Disabilities Act (ADA).

The instructions are not enforcement guidance or policy statements. Rather, they modify previous field instructions and emphasize the individualized analysis that must be used in determining whether a Charging Party has a "disability" as defined by the ADA and whether a person is "qualified." In addition, they offer valuable, practical advice to field staff responsible for collecting and analyzing evidence under the ADA.

INSTRUCTIONS FOR FIELD OFFICES: ANALYZING ADA CHARGES AFTER SUPREME COURT DECISIONS ADDRESSING "DISABILITY" AND "QUALIFIED"

Background

The Supreme Court over the past two terms has issued several ADA decisions involving the determination of:

(1) whether a person has a "disability" as defined by the ADA. (See Bragdon v. Abbott, 524 U.S. 624 (1998); Sutton v. United Airlines, Inc., 527 U.S. ___, 67 U.S.L.W. 4537 (June 22, 1999); Murphy v. United Parcel Service, Inc., 527 U.S. ___ (1999); and Albertsons, Inc. v. Kirkingburg, 527 U.S. ___ (1999)); and

(2) whether a person with a disability is "qualified." (See Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 (1999); and Albertsons, Inc. v. Kirkingburg, 527 U.S. ___ (1999)).

Since these cases involve fundamental issues that are addressed in many ADA charges, the Office of Legal Counsel has prepared these instructions for the field to aid in gathering and analyzing evidence.

Last year, the Supreme Court broadly interpreted the terms "impairment," "major life activity," and "substantial limitation" in Bragdon, holding that a woman with asymptomatic HIV infection had an ADA "disability." Consistent with the Court's approach, the EEOC will continue to give a broad interpretation to these terms.

This year, the Supreme Court held in Sutton and Murphy that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in a major life activity when using a mitigating measure, such as medication, a prosthesis, or a hearing aid. A person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the ADA's first definition of "disability" (a physical or mental impairment that substantially limits a major life activity). In Albertsons, the Court extended this analysis to individuals who specifically develop compensating behaviors to mitigate the effects of an impairment. In so ruling, the Supreme Court rejected the Commission's position that the beneficial effects of mitigating measures should not be considered when determining whether a person meets the first definition of "disability."

In all of these cases, the Supreme Court emphasized that, consistent with EEOC's position, the determination of whether a person has a "disability" must be made on a case-by-case basis. The Court stated that it could not be assumed that everyone with a particular type of impairment who uses a particular mitigating measure automatically was included -- or excluded -- from the ADA's definition of "disability." Nor does the definition of "disability" depend on general information about the limitations of an impairment. Rather, one must assess the specific limitations, or lack of limitations, experienced by a Charging Party (CP) who uses a mitigating measure or compensating behavior to lessen or eliminate the limitations caused by an impairment.

The Court also emphasized that the disability determination must be based on a person's actual condition at the time of the alleged discrimination. Therefore, if a CP did not use a mitigating measure at that time, an Investigator must determine whether s/he was substantially limited in a major life activity based solely on his/her actual condition. For the purpose of determining whether a CP meets the definition of "disability," speculation regarding whether the person would have been substantially limited if s/he used a mitigating measure is irrelevant.

The instructions below, consistent with these Supreme Court decisions, modify previous field instructions and emphasize the individualized analysis that must be used in determining whether a particular CP has an ADA "disability."

• Part One addresses each of the three definitions of "disability" as they apply to CPs who use mitigating measures. (Pages 2-16) It also highlights certain issues relating to any "regarded as" case. (Pages 12-16)

• Part Two addresses special issues that may arise when a Respondent claims to rely on federal safety standards in determining that a CP is not "qualified" because of a disability. (Pages 16-17)

• Part Three discusses the relationship between application for, or receipt of, disability benefits and a determination of whether a CP is "qualified." (Pages 17- 19) (A summary of the decisions in Albertsons and Cleveland is found on pages 16 and 17, respectively.)

If an Investigator is uncertain whether a CP who uses a mitigating measure is substantially limited in a major life activity, s/he should contact the OLC ADA Division attorney assigned to the field office.

PART ONE: THE THREE DEFINITIONS OF "DISABILITY"

First Definition of "Disability": CP Has a Substantially Limiting Impairment

All of the questions below seek information about a CP's condition at the time of the alleged discrimination.

In determining whether a CP, or a potential CP, has a physical or mental impairment that substantially limits a major life activity, an Investigator must do the following:

1. Identify the CP's physical or mental impairment(s).
2. Ask whether the CP uses a mitigating measure to control or eliminate symptoms or limitations of the impairment.
   1. Ask the CP to identify the precise mitigating measure used (e.g., medication, insulin, prosthetic limb, hearing aid).
      • If a CP uses more than one mitigating measure (e.g., a CP uses two medications), be sure to get information on how well each mitigating measure controls a CP's symptoms, the respective side effects of each, and whether the two medications together cause limitations because of the interaction between them.
   2. Ask the CP to identify any behaviors s/he may have specifically developed to cope with the limitations of an impairment.
      • For example, an individual with monocular vision might have developed specific compensating behaviors in head or eye movements to see effectively at long distances.
   3. If the CP is not using a mitigating measure, then discuss what limitations, if any,the CP experiences in performing a major life activity due to the impairment.
3. Ask whether the mitigating measure or compensating behavior fully or only partially controls the symptoms or limitations of the impairment.
   1. A number of questions should be asked to determine whether a mitigating measure fully controls, partially controls, or has little effect in controlling the symptoms and limitations of an impairment. Examples include:
      1. Describe what symptoms and limitations you experienced before using the mitigating measure (e.g., 3 seizures a week; frequent and severe headaches, blurred vision, urination, thirst, and other symptoms of high levels of blood sugar (hyperglycemia) for a person with diabetes; chronic, severe shaking due to Parkinson's disease; ability to hear only certain high-pitched sounds).
         • This question seeks information to establish what major life activity(ies)may be affected by the CP's impairment, despite the use of a mitigating measure or compensating behavior. Remember that major life activities are broadly defined and that the list of major life activities in the EEOC regulations and enforcement guidances is not exhaustive.
         • Bragdon took an expansive view of the terms "major life activity" and "substantial limitation." Investigators should continue to consult the Compliance Manual and EEOC guidances for additional information on identifying major life activities and assessing whether a CP is substantially limited. (Also, see Sutton, 67 U.S.L.W. 4537, 4542 (June 22, 1999) for a discussion of "substantial limitation.")
         • See pages 7-9 for a listing of some of the major life activities that you should review with a CP to determine if s/he still experiences limitations in performing them, despite the use of a mitigating measure.
      2. How well does the mitigating measure control the symptoms and limitations identified above?
         • Does the mitigating measure control the symptoms or limitations all of the time or only some of the time? (e.g., medication has reduced the number of seizures from 3 per week to 1 per week; the treatment of diabetes through diet, medication, and insulin has limited the frequency and severity of the incidents of hyperglycemia; the shaking only occurs when the CP is tired and is not as severe as it used to be; the hearing aid enables the CP to hear low and high-pitched sounds, but not words).
           • A CP who uses a prosthetic hand or arm may continue to experience substantial limitation in the major life activity of performing manual tasks because the device does not permit fine motor manipulation.
         • If a CP uses a behavior specifically developed to compensate for a limitation resulting from an impairment, how well does that behavior compensate for the limitation? Do any limitations remain for which the compensating behavior is ineffective?
           • For example, a CP with monocular vision might be able to turn his/her head to compensate sufficiently for a decrease in his/her field of vision. This will not compensate for the loss of depth perception. To deal with that limitation, a CP may have learned to judge long distances by relying on monocular cues such as linear perspective, overlay of contours, and distribution of highlights and shadows. However, this behavior may not compensate for limitations in seeing at shorter distances. Therefore, a CP who uses certain compensating behaviors might still experience limitations in performing numerous tasks involving close range vision. The limitation in close range vision is relevant to determining whether the CP is substantially limited in seeing or any other major life activities.
      3. How long has the CP been using the mitigating measure or compensating behavior?
         • If a CP has been using a mitigating measure or compensating behavior for only a short period, initially it may not be very effective in controlling the limitations.
         • Whether a mitigating measure, over time, might become more effective involves speculation. The Supreme Court's decisions make it clear that the determination of whether a CP is substantially limited, even with the use of a mitigating measure or compensating behavior, must rest on evidence of how well the measure or behavior actually worked at the time of the alleged discrimination.
      4. Does the mitigating measure tend to become less effective under certain conditions? If certain conditions interfere with the effectiveness of a mitigating measure, how often and for how long a period do these conditions arise? For example:
         • If the CP is under great stress, or is tired, does the mitigating measure work as well?
         • Do adverse weather conditions or other environmental changes impact the effectiveness of a mitigating measure?
         • Do illnesses, such as a cold or the flu, change the effectiveness of a mitigating measure?
         • For women, do monthly hormonal changes impact the effectiveness of a mitigating measure?
      5. Does the mitigating measure tend to be effective only for awhile?
         • For example, while a CP with bipolar disorder who uses medication does not experience severe symptoms of the disorder for a period of time, he then experiences symptoms for several weeks and undergoes a severe manic episode. Following the manic episode, the CP again experiences few or no symptoms while using the mitigating measure.
         • Mitigating measures used to treat degenerative illnesses, such as Parkinson's disease, may only work for a period of time before the condition worsens, making the mitigating measure ineffective.
      6. Has the CP had to change mitigating measures because previous ones became less effective? If yes, how many previous mitigating measures has the CP used, and what happened when each one became less effective? How long did each mitigating measure remain effective? Is the current mitigating measure different from previous ones so that it is less likely to fail? Or, conversely, is there any indication that the current mitigating measure is becoming less effective?
      7. Are there any symptoms or limitations that are unaffected by the mitigating measure? If yes, what are they and how severely do they limit the CP from engaging in a major life activity?
      8. Has the impairment caused any complications that are not controlled by a mitigating measure and may substantially limit a major life activity?
         • For example, complications from diabetes may result in substantial limitations in major life activities. This can include complications such as eye disease (seeing); nerve damage (sitting, standing, walking, eating); blood vessel disease (walking); and difficulties with reproduction. These are all complications that are not controlled by insulin.
4. Ask whether the mitigating measure itself causes any limitations in performing a major life activity.
   1. Investigators need to ask CPs whether they experience any symptoms, side effects, or limitations in performing certain activities as a result of using a mitigating measure. If a CP does experience limitations, the Investigator needs to probe their severity and duration.
      • If a CP uses medication, it is critical to identify the specific medication and the specific side effects caused by it. Not all medications produce the same side effects. Moreover, the same medication does not produce the same side effects in all individuals.
   2. If a CP uses two or more mitigating measures, and they are not substantially limiting by themselves, determine if the combined negative effects of all the mitigating measures together substantially limit one or more major life activities.
      • For example, a CP with Attention Deficit Disorder (ADD) and depression may take medications to treat each condition. Each medication, by itself, affects the ability to sleep (a major life activity), but does not substantially limit it. However, the combined effect of the two medications substantially limits the CP's ability to sleep.
   3. A number of major life activities may be severely affected by a mitigating measure. (These major life activities may also be directly affected by the impairment despite the use of a mitigating measure.)
      1. Thinking, concentrating, and other cognitive functions may be substantially limited when a CP uses certain drugs to treat many different impairments, including psychiatric illnesses and epilepsy. It may take much greater effort to engage in cognitive functions because the medication causes a person to feel groggy, disoriented, or slow. Or, a CP may have difficulty with memory because of certain medications.
      2. Walking, standing, and lifting may be substantially limited even with the use of a prosthetic foot, leg, arm, or hand.
         • For neurological reasons, some people experience "pain" or "discomfort" from a missing limb. A CP may experience problems in the remaining limb resulting from over-use to compensate for the missing limb. Significant pain may accompany wearing a prosthetic device. A CP may need to minimize the amount of walking in order to wear the prosthetic leg for longer periods. Or, a person using a prosthetic leg may be able to walk without significant problems, but can only wear the leg for 8 hours per day, and then must rely on a wheelchair or crutches for mobility.
         • A prosthetic limb may cause serious chafing, rubbing, blisters, and ulcers, depending on a number of factors, including the materials used, the tightness of the fit, how the amputation occurred, and what body part the prosthetic device is replacing. These side effects could affect the ability to wear the prosthetic device for prolonged periods and/or affect the CP's ability to engage in walking, standing, or lifting, as well as the major life activities of performing manual tasks and caring for oneself.
      3. Eating is a major life activity that may be affected by the use of a mitigating measure if a CP is required to adhere to substantial dietary restrictions because of medication or a device. Or, a CP may be less able to eat or may have to maintain a rigid eating schedule because of certain medications or devices. Certain medications can cause severe nausea, which in turn will affect a CP's ability to eat. An Investigator should ask whether a CP's ability to eat and/or eating habits had to be altered, and if so in what ways.
         • Both food and lack of food can cause severe short and/or long-term medical problems for people with diabetes. They must consider the impact on the disease of everything they eat, how much they eat, and when they eat.
      4. Caring for oneself may be substantially limited as a result of using a mitigating measure.
         • Medication and prosthetic devices may cause extreme fatigue, which in turn may affect a CP's ability to care for him/herself.
         • For CPs with diabetes, the ability to care for themselves may require significant changes and/or disruptions to their daily activities to control the frequency and severity of incidents of high blood sugar (hyperglycemia) and low blood sugar (hypoglycemia). The serious short and long-term consequences of hyperglycemia include headaches, blurry vision, breathing difficulties, eye disease, kidney disease, nerve damage, blood vessel disease, and death; the consequences of hypoglycemia include disorientation, weakness, nervousness, seizure, coma, and death. To avoid these serious consequences, CPs with diabetes must be constantly vigilant in closely controlling blood sugar levels. This involves monitoring body signals for fluctuations in blood sugar levels, checking blood sugar levels mechanically, and, based on those levels, adjusting food intake, physical activity, and medications (including insulin and oral medications). People with diabetes must maintain a delicate balance between these elements in order to avoid hyperglycemia and hypoglycemia.
         • There also may be a significant impact on the ability to care for oneself as a result of experiencing a medical episode. The inability of a mitigating measure to prevent such an episode may cause so much fear that it seriously affects a CP's ability to care for himself. For example, a CP with epilepsy may have had traumatic experiences having a seizure in public where strangers reacted badly. As a result, he may not be able to go out alone to run routine errands or buy groceries, and may require that someone familiar with his epilepsy always accompany him. Alternatively, a CP may fear possible injury from a seizure, and therefore may be unable to engage in basic activities of caring for oneself, such as cooking and bathing, unless another person is present.
         • A person who wears a prosthetic limb may have to curtail activities that are part of caring for oneself, such as household chores and grocery shopping, because the limb can only be worn for a certain period of time.
      5. Sleeping may be affected by certain medications. Some may cause extreme drowsiness, while others have the opposite effect.
      6. Performing manual tasks may be affected by certain drugs which can interfere with fine motor skills.
      7. Reproduction may be affected by use of a mitigating measure. Many medications prescribed to control seizures or psychiatric illnesses can cause birth defects, thus creating a substantial limitation in procreation. (See Bragdon.)
      8. Working may be affected by use of a mitigating measure. Investigators should always review this major life activity last. For a discussion on the impact of the Supreme Court decisions on identifying a class of jobs or broad range of jobs in various classes, see pages 14-16.
5. Relevant witnesses for gathering this information
   • After reviewing all of the questions above with the CP, the Investigator should interview other relevant witnesses who may be able to corroborate or supplement the CP's information. These would include:
     • family members, friends, and coworkers;
     • rehabilitation specialists who work with the CP to address functional limitations; and
     • doctors (if they have knowledge about the CP's specific functional limitations).
6. Based on the evidence collected from asking these and other relevant questions, does the CP who uses a mitigating measure have a substantially limiting impairment?

   1. A CP meets the first definition of "disability" where, despite, or because of, the use of a mitigating measure, the CP is substantially limited in performing a major life activity.
   2. Determining whether a CP meets this definition does not rest on identifying a multitude of major life activities that are merely affected by CP's impairment, even with the use of a mitigating measure. Rather, such a determination depends on evidence that shows that the CP is substantially limited in performing at least one major life activity.
   3. Problems in performing numerous tasks may signal a substantial limitation in performing a specific major life activity.
      • For example, a CP with epilepsy may be substantially limited in caring for herself because she cannot live independently due to the fact that her epilepsy necessitates assistance with running a household (e.g., preparing meals, cleaning, bathing, grocery shopping). Even if running a household is not a separate major life activity, it is part of the major life activity of caring for oneself.
   4. Always look for evidence concerning the length of time a CP has experienced limitations, the frequency with which they occur, and their severity in order to determine whether the CP is substantially limited.

Second Definition of "Disability": CP Has a Record of a Substantially Limiting Impairment

1. In all charges where a CP indicates that s/he uses a mitigating measure, the Investigator should determine whether the CP has a record of a disability for the period before the CP began using the mitigating measure.
   1. The Investigator should ask questions about what limitations the CP experienced in performing major life activities because of the impairment prior to using a mitigating measure.
   2. Questions should seek detailed information and include the following:
      1. What major life activities were limited or precluded prior to using a mitigating measure?
         • For example, if a CP with epilepsy has been seizure-free for a substantial period of time and there are few or no side effects from medication, detailed information needs to be obtained concerning CP's seizures, and their impact on performing major life activities, before CP began using the current medication.
      2. How long did the CP experience these limitations prior to using a mitigating measure?
      3. Was the CP precluded from or limited in performing a major life activity all of the time or only some of the time? That is, were any limitations present only during certain periods? of limitations in performing a major life activity were episodic rather than constant, how often and for how long a period did these limitations occur? How severe were the limitations when they did occur?
         • For example, a CP with major depression may have experienced episodes of severe depression that lasted several months before taking medication.
      4. Before using a mitigating measure that effectively controls the symptoms or limitations of an impairment, did the CP try any unsuccessful mitigating measures?
         • In certain situations, it may take months to find the right medication, or group of medications, to control the symptoms or limitations of an impairment. During this period, the CP may have been substantially limited in performing a major life activity.
   3. Additional questions include:
      1. Can the CP provide information on any "records" or files that document a former substantially limiting impairment or an erroneous record of a substantially limiting impairment (e.g., school records, Dept. of Veterans Affairs documents, workers' compensation records, vocational or other rehabilitation records, medical files)?
      2. Was the Respondent aware of the CP's record or history of a disability?
         • The Respondent does not need to be aware of the CP's record of a substantially limiting impairment for coverage purposes. However, there must be evidence that the Respondent acted on the basis of the CP's record of a disability in order to find that discrimination occurred.
2. Based on the evidence collected from asking these and other relevant questions, does the CP have a record of a substantially limiting impairment prior to using a mitigating measure?
   • A CP meets the second definition of "disability" where, prior to using a mitigating measure that effectively controls the symptoms and limitations of an impairment, the CP was substantially limited in performing a major life activity.

Third Definition of "Disability": CP is Regarded as Having a Substantially Limiting Impairment

1. If an Investigator determines that there is insufficient evidence to establish that a CP who uses a mitigating measure or compensating behavior is covered under the first two definitions of "disability," or is uncertain whether a CP meets one of the first two definitions, then the Investigator should assess whether the Respondent regarded the CP as having a substantially limiting impairment.
2. An Investigator should take the following steps to determine if the CP meets this definition:
   1. Identify the impairment that Respondent knew or believed the CP to have.
   2. Identify the reason given by the Respondent to disqualify, terminate, or in any way affect an employment opportunity of the CP. Examples of possible reasons that a Respondent might offer include:
      • failure to meet a physical qualification standard (e.g., hearing or lifting requirements);
      • inability to work under stressful conditions;
      • insufficient stamina or endurance to work effectively;
      • concerns that the CP might pose a health or safety risk to self or others; and
      • failure to obtain required licenses.
   3. Determine whether the Respondent believes that the CP's impairment is the cause of the perceived problem. For example, is there evidence that the Respondent believes that CP's impairment is the reason that s/he: (1) failed to meet a qualification standard, (2) cannot tolerate stressful working conditions, (3) has insufficient stamina or endurance to work; (4) poses a health or safety risk,or (5) cannot obtain a required license?
   4. Determine whether the Respondent's reason for disqualifying the CP involves performance of a major life activity(e.g., the perceived inability to lift 5 pounds involves the perception that the CP is unable to perform the major life activity of lifting).
      1. To show that a Respondent regarded a CP as having a disability, the Respondent's reason for disqualifying the CP must involve or relate to performance of a major life activity.
         • For example, the perceived inability to stand more than a few minutes involves the major life activity of standing; the perceived inability to work under stressful conditions involves the major life activity of working).
      2. While in many cases the Respondent's reason for disqualifying the CP may indicate a belief that the CP cannot engage in the major life activity of working, Investigators should first determine whether any other major life activity is implicated (e.g., walking, breathing, standing).
         • See (F) below for further instructions on the major life activity of working.
   5. Determine whether the Respondent believed that the CP was substantially limited in performing the major life activity.
      1. Actions speak louder than words. This means that Investigators should carefully scrutinize the CP's disqualification and the events that led up to it. Because Respondents are likely to deny that they regarded a CP as having a disability, it is important to assess whether the Respondent's actions indicate otherwise.
         • For example, medical leave or workers' compensation files may contain evidence relevant to the issue of whether the Respondent perceived that a CP was substantially limited in performing a major life activity.
      2. Review the chronology of events to see if there is a connection between the Respondent's awareness of the CP's impairment (or perceived impairment) and the Respondent's subsequent actions.
      3. Determine whether the Respondent's underlying reason for disqualifying the CP is related to myths, fears, stereotypes or other attitudes about a particular disability (e.g., myths about a person's frailty due to a medical condition or fears about rising health insurance costs).
         • For example, does the Respondent believe that a person with a moderate hearing loss cannot be a secretary because a hearing aid will not allow her to hear phones and clients needing assistance.
   6. If working is the major life activity at issue, an Investigator must determine whether the Respondent's reason for disqualifying the CP indicates a belief that the CP is substantially limited in working, i.e., unable to work in a class of jobs or broad range of jobs in various classes.
      1. If the Respondent can show that its reason for disqualifying the CP applies to something unique about the Respondent's job or workplace, then the Respondent only viewed the CP as unable to work in one specific job.
         • In Sutton, the Supreme Court determined that a global airline pilot is only one job and not a class of jobs. Since United Airlines only viewed Sutton as unable to work as a "global pilot," it did not regard her as unable to work in the class of pilot jobs, which would include other types of positions, such as regional pilots, pilot instructors, and freight pilots.
         • In Murphy, the Supreme Court determined that UPS's mechanics job, which required the ability to drive commercial vehicles, was a single job and not representative of the class of mechanics jobs. Thus, according to the Court, UPS only viewed Murphy as unable to perform its unique job requiring a mechanic to drive a commercial vehicle, and not as unable to work in the class of mechanics jobs, which would include diesel mechanics, automotive mechanics, gas-engine repairers, and gas-welding equipment mechanics -- none of which require an individual to drive commercial vehicles.
      2. The fact that a CP is unable to satisfy a Respondent's physical or other job requirement does not alone constitute sufficient evidence that the Respondent regards the CP as substantially limited in working.
         • Therefore, the Investigator should carefully question the CP to determine whether the Respondent said or did anything to suggest that the CP was viewed as substantially limited in the ability to perform a class or broad range of jobs.
         • The Investigator also should seek evidence from the Respondent as to whether it viewed the job from which the CP was disqualified as representative of a class or broad range of jobs.
           • For example, a CP with epilepsy who does not actually have a substantially limiting impairment may be covered under the "regarded as" definition if evidence shows that the Respondent has a generalized fear of seizures, and not a specific fear about the consequences of a seizure due to something unique about the Respondent's job or workplace.
           • Similarly, if a Respondent has a generalized fear that a person with a psychiatric illness may become violent, without any objective information regarding this particular CP, then the Respondent is acting on generalized fears and misconceptions that would indicate the Respondent believes the CP could not work in most jobs.
         • Respondents may claim that the CP's inability to meet a physical or other job requirement shows that the CP is not "qualified." This claim involves the merits of the charge and must be analyzed separately from the determination of whether the Respondent regarded the CP as having a disability. The Supreme Court's decision in Albertsons (see page 16) underscores the necessity of assessing each qualification standard to determine whether it is valid and whether a CP is "qualified."
      3. Investigators should assess whether the Respondent's reasons for disqualifying the CP would also result in his/her disqualification from other jobs in the Respondent's workplace.
         • Investigators should document how many jobs in the Respondent's workplace, and what kind of jobs, were also closed to the CP based on the Respondent's reasoning.
         • For example, if a Respondent had all of the different types of mechanic jobs discussed in (F)(1) above, and refused to hire a CP for any of them because of his/her disability, then the Respondent could be regarding the CP as substantially limited in working in the class of mechanics jobs.
3. Based on the evidence collected from asking these and other relevant questions, did the Respondent regard the CP as having a substantially limiting impairment?
   • A CP meets the third definition of "disability" where a Respondent regards a CP as having a substantially limiting impairment.

PART TWO: IS A CP "QUALIFIED" IF S/HE FAILS TO MEET A FEDERAL REGULATORY SAFETY STANDARD?

After determining that a CP meets one of the definitions of "disability," the next issue is whether the CP is "qualified." In Albertsons, the Supreme Court determined that an employer can require a CP to meet an applicable federal safety standard, even if the standard can be waived under an experimental program. The following instructions apply to any CP who meets the ADA definition of "disability," regardless of whether s/he uses a mitigating measure.

In cases where Respondents allege that a CP cannot meet a federally-mandated safety standard, Investigators need to do the following:

1. Carefully review a Respondent's claim that a CP is not qualified because s/he fails to meet a federally-mandated safety requirement.
   1. Does the regulatory requirement absolutely prohibit the Respondent from hiring the CP due to a disability? Does the regulation apply to the particular position the CP holds or desires, and/or does it apply to the CP's specific disability? Or, is the Respondent voluntarily choosing to adopt a federal safety standard?
   2. If a Respondent is required by federal law to impose a safety standard on a CP that results in screening out the CP based on disability, does the regulatory requirement establish any exceptions, waivers, or other mechanisms by which the CP would meet the safety concerns embodied in the regulatory requirement?
      1. If there is an exception, waiver, etc., is it part of the regulatory requirement? Does a person who qualifies for the exception, waiver, etc. meet the safety requirements of the federal regulation, or does the exception, waiver, etc., constitute an exemption from meeting the regulation's safety requirements?
      2. For example, in Albertsons, the Supreme Court determined that an employer does not have to follow an experimental waiver program designed to permit persons with monocular vision to qualify for DOT certification to operate commercial motor vehicles. This type of waiver program did not modify the general safety standard that precludes persons with monocular vision from obtaining certification. Rather, the waiver program was designed to obtain data to determine if changes should be made in the general safety standard.
         • The type of program at issue in Albertsons would be different from a waiver program based on data already collected that has shown that people qualifying for the waiver meet the generalized safety requirements. Furthermore, an employer could not require an individual to meet the general safety standard if the waiver program specifically modified the general safety standard.
2. A Respondent cannot disqualify a CP for failure to meet a general safety standard if the CP receives a waiver from, or is eligible for an exception to, that standard. A Respondent must give deference to the waiver or exception if it is predicated on maintaining safety, constitutes or contains an alternative way to maintain safety, and modifies the general safety standard.

PART THREE: WHAT IMPACT DOES A CP'S APPLICATION FOR, OR RECEIPT OF, DISABILITY BENEFITS HAVE ON A DETERMINATION AS TO WHETHER A CP IS "QUALIFIED?"

In Cleveland, the Supreme Court adopted EEOC's position that application for, or receipt of, Social Security Disability Insurance (SSDI) benefits does not automatically preclude an individual from meeting the ADA's definition of "qualified."

1. There is no inherent conflict between being eligible for SSDI benefits and meeting the ADA's definition of "qualified."
   1. Thus, there is no presumption that application for, or receipt of, SSDI benefits defeats a CP's claim that s/he is "qualified" as defined by the ADA.
   2. The analysis used by the Supreme Court to compare an application for SSDI benefits and a CP's claim that s/he is "qualified" also would apply to applications for other types of disability benefits, such as Long Term Disability benefits or workers' compensation.
   3. A CP must be able to explain his/her statements on the benefits application that s/he is unable to work, and thus qualifies for benefits, while also maintaining that s/he can perform the essential functions of the position at issue in the ADA charge, with or without reasonable accommodation.
      • For example, because SSDI and the ADA serve different purposes, they use different approaches to assess whether a person can work. Therefore, it is possible for a CP to meet the ADA's definition of "qualified" and also be eligible for SSDI benefits.
   4. Below is a general summary of the steps to follow in an ADA investigation involving the receipt of disability benefits. For more detailed information on questions to ask and evidence to seek, Investigators should refer to the EEOC Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person is a "Qualified Individual with a Disability" Under the ADA.
2. Investigators should do the following:
   1. Review the CP's application for disability benefits. Determine if there appears to be any discrepancies between claims made on the application and the CP's contention that s/he is "qualified." Carefully review apparent discrepancies to determine whether they can be explained by differences in definitions or formulas.
      • For example, a CP's claim of "total disability" does not necessarily indicate that s/he cannot perform the essential functions of a job, with or without reasonable accommodation. To the contrary, "total disability" is a Social Security term that, in this context, only means that s/he meets the criteria for SSDI benefits.
   2. In reviewing the CP's application for disability benefits, determine whether the CP was merely checking off boxes or fully describing his/her disability and ability to work. To the extent that there appears to be a discrepancy in finding a CP to be "qualified," greater weight should be given to a CP's narrative description of his/her disability and ability to work on a benefits application form than information captured when a CP checked off a box.
   3. Determine whether the CP can perform the essential functions of the position at issue, with or without reasonable accommodation.
      • In many of these cases, a CP's ADA charge will include an allegation of denial of reasonable accommodation. Whether a person can work with reasonable accommodation generally is not a consideration in determining whether a person is eligible for disability benefits.
      • For example, the Social Security Administration does not consider whether a person could work if given a reasonable accommodation, but focuses only on an SSDI applicant's ability to work without accommodation. If the CP could have performed the essential functions with a reasonable accommodation, then there is no conflict between statements made on the SSDI application and a CP's claim to be "qualified."
   4. Determine whether the CP's condition changed over time. If it did, then a statement about the CP's disability on a benefits application might not reflect his/her ability to perform the essential functions, with or without reasonable accommodation, at the time of the Respondent's employment decision.
      • For example, a CP alleges that s/he was wrongfully terminated in January. The following June, the CP filed an SSDI application. If the CP could have performed the essential functions in January, but by June his/her disability had deteriorated so that s/he could no longer work, the CP would still be "qualified" during the relevant period of time for the ADA charge.

If an Investigator has questions about anything in these Instructions, please contact the OLC ADA Division attorney assigned to your field office.