Defining Disability Under The Americans with Disabilities Act.

The Americans With Disabilities Act (ADA) [1] was enacted to protect qualified people with disabilities. The first article in this series [2] focused on the requirement that a claimant under the ADA be otherwise qualified for the position, and able to perform the essential functions of the job, with or without reasonable accommodation by the employer. This article discusses the ADA concept of disability.

The statute defines a disability in three distinct and unique ways that broaden its impact in the workplace. For purposes of the ADA, disability means having a physical or mental impairment that substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment. [3]

Physical or Mental Impairment

The first definition of a disability is "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." [4] A great amount of legal debate has centered around the terms "physical or mental impairment," "substantially limits," and "major life activities."

The Equal Employment Opportunities Commission (EEOC), the body charged with enforcing the ADA, has defined a "physical or mental impairment" as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one of the major body systems [5], or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities. [6] In its interpretive guidance, the EEOC notes that it does not consider physical characteristics (eye and hair color, height, weight and muscle tone within normal ranges) as impairments. [7] Similarly, predispositions to illness, pregnancy, and personality traits (poor judgment and quick temper) are not disabilities unless resulting from a psychological disorder. [8] Advanced age is also not a disorder, according to the EEOC, although medical conditions associated with advanced age would be. [9]

Homosexuality and bisexuality are not disabilities under the ADA. [10] The statute also excludes the conditions of transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance abuse disorders resulting from current illegal drug use. [11]

Alcoholism and Drug Addiction 

Alcoholism and drug addiction are difficult issues under the ADA. Congress recognizes that employers must have the authority to ensure that their workplaces remain safe and efficient. Therefore, the ADA expressly states that employers may prohibit the use of illegal drugs and the use of alcohol in the workplace, [12] and require that employees not be under the influence of drugs or alcohol while working. [13] In addition, an illegal drug user and an alcoholic may be held to the same job qualification standards, and the same standards of job performance and behavior as all other employees, even if their poor performance or behavior is related to their drug use or alcoholism. [14] The ADA also permits drug testing in the workplace. [15]

Current drug use, either on or off the job, is not protected by the ADA. [16] Consequently, employers do not violate the ADA when they refuse to hire an applicant, or discipline or fire employees currently using illegal drugs, when they act on the basis of that use. Current drug use is not limited to use on the day of the employment action. For example, employees' admissions of drug use in the weeks and months prior to discharge are sufficient indication of recent involvement in drug-related misconduct to justify their discharge. [17] As EEOC interpretive guidance makes clear, current use means the use of drugs that has "occurred recently enough to indicate that the individual is actively engaged in such conduct." [18] Consequently, even if employees can show that they were drug-free at the time the employer acted, the ADA offers no protection if the employer can show the decision was made on the basis of the employees' current use of drugs. [19]

Past drug use is considered a disability and protected by the ADA. If employees are rehabilitated or in a rehabilitation program, currently do not use illegal drugs, and can perform the essential functions of the job held or desired, [20] employers have a duty to accommodate the employees. The accommodation may be to provide additional sick leave or vacation time to attend rehabilitation programs, or provide a flexible work schedule.

Unlike the illegal use of drugs, the use of alcohol is not a crime, and therefore, treated somewhat differently under the ADA. Simple use of alcohol away from the job site cannot be the basis for an adverse employment action. However, recovering alcoholics are considered disabled and should be accommodated if they can perform the essential functions of the job. [21]

The treatment of drug and alcohol abuse under the ADA can be summarized as follows: the ADA draws a distinction between employer actions based on an employee's status as a past drug user or alcoholic, which may be prohibited, and employer actions based upon the behavior of the employee, which likely are not. An employer need not tolerate insubordination, disruptive behavior, or illegal acts by recovering alcoholics or past drug users, even if their behavior is due to their addiction. [22]

Major Life Activities

Assuming applicants or employees are impaired, they still are not protected by the ADA unless that impairment impacts a "major life activity. "[23] The EEOC has adopted the definition of a major life activity from the Rehabilitation Act of 1973--basic activities that the average person in the general population can perform with little or no difficulty. [24] Examples of major life activities include caring for oneself, performing manual tasks, walking, hearing, seeing, speaking, breathing, learning, working, sitting, standing, lifting, and reaching. [25]

The Supreme Court recently held that major life activities under the ADA are not limited to only those that have a daily impact on a person's life, or to those that affect a person's public or economic activities. Consequently, an activity as private in nature as reproduction is a major life activity for purposes of the ADA. [26]

The Substantial Limitation Requirement

On the whole, the courts and the EEOC have little trouble deciding if people are impaired for purposes of the ADA, and whether that impairment impacts a major life activity. However, the ADA does not protect all people with an impairment that affects a major life activity. It only protects those whose impairment "substantially limits" a major life activity. [27] This substantial limitation requirement has proven more troublesome for employers, the EEOC, and the courts.

The EEOC defines a substantial limitation as the inability to perform a major life activity that the average person can perform or a significant restriction in the condition, manner, or duration of the performance of an activity as compared to the average person. [28] Factors to consider are the nature, severity, and expected duration of the impairment, as well as the permanent or long term impact of the impairment. [29] Under this definition, temporary, nonchronic impairments of short duration such as broken bones, sprains, concussions, or appendicitis are not substantially limiting. However, an impairment of relativity short duration (e.g., a broken leg that heals in weeks) can have a major, long term impact (e.g., the broken leg heals improperly, resulting in permanent loss of function).

In Bragdon v. Abbott, [30] the Supreme Court emphasized that the ADA requires only a substantial limitation on a major life activity, not a complete inability to perform it. In Bragdon, it was argued that HIV infection did not substantially limit the major life activity of reproduction because conception and childbirth are still possible for infected women. The Court found, however, that the public health risks (e.g., HIV infection of the male partner and child), additional legal considerations (e.g., state prohibitions on sexual activity by HIV infected persons) and economic burdens (e.g., health, insurance, and long-term care costs) attendant to childbirth by an HIV infected woman are sufficient to limit this major life activity. [31]

The Court made it clear in Sutton v. United Air Lines, Inc. [32] that the ADA's requirement that a disability substantially limit a major life activity must be judged on a case-by-case basis. This individualized analysis is necessary because the impact of a disability will differ from person to person. The Court noted that the protections of the ADA depend on whether a person is, in fact, substantially limited by an impairment, not on the name or diagnosis of the impairment.

In Sutton, the Court also settled the question whether the limitations imposed on a person by a disability should be judged with or without considering the effect of mitigation of the impairment through the use of medications, assistive, or prosthetic devices. The Court ruled that such mitigation must be considered. For example, individuals with poor vision who wear eyeglasses should be assessed for ADA protection on the basis of their corrected vision, not their uncorrected vision. [33]

A large number of employees seeking ADA protection base their claim on a substantial limitation on the major activity of working. Working is one of a number of major activities that the EEOC and the courts have identified under the ADA. However, the EEOC views claims of limitations on working as claims of last resort. The commission states in its guidance that working limitations should only be considered if no other major life activity is substantially limited by the claimant's disability. [34]

Employees are not substantially limited in the major activity of working if their disability merely prevents them from doing a single specific job. Instead, employees must be prevented from performing an entire class of jobs, or a broad range of jobs in different classes in the geographical area that the disabled individuals have access. [35]

For example, a person with a minor vison problem that prevents him or her from being a commercial airline pilot, is not substantially limited in the major life activity of working because the position of copilot or pilot for a noncommercial airline would still be available. The minor vision problem is a bar to only one specialized job (commercial airline pilot) rather than from an entire class of jobs, and therefore, would not be considered a substantial limitation on the major life activity of working. [36] On the other hand, a person with a back injury that prevents him or her from performing heavy labor tasks would be substantially limited in the major life activity of working because he or she cannot perform an entire class of jobs involving heavy exertion. [37]

A Record of an Impairment

The ADA also defines a disability as having a "record" of a physical or mental impairment that substantially limits a major life activity. [38] Congress included this provision to ensure that people who have suffered from disabilities in the past are judged not on that past record (i.e., educational, medical, or employment records), but on the basis of their present ability to do the job. For example, an employer may not refuse to hire applicants solely because they have a history of cancer if the applicants are otherwise qualified and able to perform the essential functions of the job. [39]

In order for the applicant or employee to be protected under this provision, the impairment of record relied upon by the employer must be, or have been, substantially limiting as defined in the ADA. Although an employer or agency may classify a person as "disabled" under another statute (i.e., a disabled veteran or an individual on disability retirement), that does not mean that the person is automatically classified as disabled under the ADA. [40] At the same time, being classified as "totally disabled" under another statutory scheme also does not automatically mean a person cannot perform the essential functions of any job, and therefore is not entitled to ADA protection. [41]

Regarded as Having an Impairment

The ADA also defines a disability as being regarded as having a disability. [42] This definition of disability is included in the ADA to ensure that applicants and employees are judged on the basis of actual ability, not mistakes or misconceptions. It recognizes that "society's myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." [43]

The courts and the EEOC have dealt with three broad categories of discrimination under this definition of a disability. The first category covers situations involving people who have a disability that does not substantially limit any major life activity, but are treated as if they are substantially limited by their employer. An example would be individuals with high blood pressure who are transferred to less strenuous positions because the employer fears they will have a heart attack if kept in the same position. [44]

The second category of cases under this definition is exemplified by cases where employees have an impairment that is only substantially limiting because of the attitudes of others. The EEOC explains this category with the example of the store clerk who has a facial scar who is transferred to a lower paying stock room job by his or her employer because of negative customer reactions to the disfigurement. [45]

The third category involves cases where the employer mistakenly believes employees have disabilities when, in fact, they are not disabled. An example is an employee who is fired because of an unfounded rumor that he or she is infected with HIV. [46]

Conclusion

To be protected by the provisions of the ADA, individuals must demonstrate that they are otherwise qualified for the position held or sought; can perform the essential functions of the job held or desired, with or without reasonable accommodation; and that they are disabled as defined in the act. The definition of a disability under the ADA is very broad. It includes not only a physical or mental impairment that substantially limits a major life activity, but also a record of such a impairment, or being regarded as having such an impairment. Once individuals satisfy these prerequisites, they are protected from employment discrimination based upon a recognized disability.

Endnotes

Special Agent Colbridge is a legal instructor at the FBI Academy.

(1.) 42 USCA (ss) 12101, et seq.

(2.) Thomas D. Colbridge, "The Americans with Disabilities Act," FBI Law Enforcement Bulletin, August 2000, 26-31.

(3.) 42 USCA (ss) 12102(2).

(4.) 42 USCA (ss) 12102(2)(A).

(5.) 29 CFR (ss) 1630.2(h)(1). See this regulation for a complete listing of the body systems that the EEOC considers major.

(6.) 29 CFR (ss) 1630.2(h)(2).

(7.) 29 CFR (ss) 1630, App., 1630.2(h).

(8.) Id.

(9.) Id.

(10.) 42 USCA (ss) 12211(a).

(11.) 42 USCA (ss) 12211(b).

(12.) 42 USCA (ss) 12114(c)(1).

(13.) 42 USCA (ss) 12114(c)(2).

(14.) 42 USCA (ss) 12114(c)(4).

(15.) 42 USCA (ss) 12114(d).

(16.) 42 USCA (ss) 12114(a). A "drug" is a controlled substance as defined in the Controlled Substances Act (21 USCA (ss) 812); see 42 USCA (ss) 12111(6)(A) and (B). The "illegal use of drugs" includes the use, possession, or distribution of drugs as defined by the Controlled Substances Act (21 USCA (ss) 801 et seq.), but does not include the use of a drug under a doctor's supervision or authorized by the Controlled Substances Act; see 42 USCA 12114(6)(A).

(17.) Collings v. Longview Fibre, 63 F.3d 828 (9th Cir.1995), cert. denied, 116 S. Ct. 711 (1996).

(18.) 29 CFR (ss) 1630, App. 1630.3.

(19.) Supra note 11.

(20.) 42 USCA (ss) 12114(b).

(21.) Conley v. Village of Bedford Park, 2000 WL 703806, (7th Cir. Ill. 2000).

(22.) 29 CFR (ss) 1630.16(b)(1)-(6); Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996) (claim under the Rehabilitation Act of 1973); Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996).

(23.) 42 USCA (ss) 12102(2)(A).

(24.) 29 CFR (ss) 1630, App., 1630.2(i).

(25.) Id.

(26.) Bragdon v. Abbott, 118 S. Ct. 2196 (1998).

(27.) Supra note 22.

(28.) 29 CFR (ss) 1630.2(j)(1)(i) and (ii).

(29.) 29 CFR (ss) 1630.2(j)(2).

(30.) Supra note 22.

(31.) Supra note 22, 2206.

(32.) 119 S. Ct. 2139 (1999).

(33.) Id.

(34.) 29 CFR (ss) 1630, App., 1630.2(1).

(35.) 29 CFR (ss) 1630.2(j)(3)(i).

(36.) 29 CFR (ss) 1630, App., 1630.2(j).

(37.) Id.

(38.) 42 USCA (ss) 12102(2)(B).

(39.) 29 CFR (ss) 1630, App., 1630.2(k).

(40.) Id.

(41.) Cleveland v. Policy Management Systems, et al., 526 U.S. 795 (1999); Sheehan v. Marr, 207 F.3d 35 (1st Cir. 2000).

(42.) 42 USCA (ss) 12102(2)(C).

(43.) School Board of Nassau County v. Arline, 480 U.S. 273 at 284 (1987) (action under the Rehabilitation Act of 1973); Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999); Sullivan v. River Valley School District, 194 F.3d 1084 (10th Cir. 1999).

(44.) 29 CFR (ss) 1630, App., 1630.2(1); see also Murphy v. United Parcel Service, Inc., supra note 42.

(45.) Supra note 44.

(46.) Supra note 44.