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Copyright 2023 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
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The Americans with Disabilities Act (ADA), protects individuals from discrimination on the basis of a disability. The law prohibits employers from discriminating against job applicants and employees on this basis. Unlike other protected classes such as gender and age, it isn't always easy to determine whether an individual has a disability. Individuals qualified for a job are protected if they:
- Have a physical or mental impairment that substantially limits one or more major life activities,
- Have a record of such an impairment, or
- Are regarded as having an impairment (the individual has been subjected to a prohibited action because of an actual or perceived impairment that is not both transitory and minor).
Focusing on the first element provides part of the definition of a disability under the ADA. However, there is more to it than that. What is an impairment? What is a major life activity? How is "substantially limits" defined?
All these questions need to be answered to get a good idea as to what might be a disability.
Impairment
Impairments can be mental or physical in nature. A mental impairment is defined as any mental or psychological disorder, such as intellectual disabilities, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
A physical impairment is a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as the following:
- Neurological
- Musculoskeletal
- Special sense organs
- Respiratory (including speech organs)
- Cardiovascular
- Reproductive
- Digestive
- Geinto-urinary
- Hemic
- Lymphatic
- Skin
- Endocrine
Additionally, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
Neither the law nor the regulations implementing the law list all diseases or conditions that make up physical or mental impairments. It would be impossible to provide such a comprehensive list, given the variety of possible impairments. Instead, they describe the type of condition that constitutes an impairment.
You will need to apply the definition to a given situation to see if the law and its protections apply. However, an individual assessment of some types of impairments will, in virtually all cases, result in a determination of coverage. These include deafness, blindness, intellectual disabilities, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
Major life activities
For an impairment to be a disability, it must substantially limit a major life activity. In general, these are basic life activities that most people in the general population can perform with little or no difficulty. The regulations include the following as examples of major life activities:
- Caring for oneself
- Performing manual tasks
- Walking
- Seeing
- Hearing
- Eating
- Speaking
- Breathing
- Sleeping
- Learning
- Working
- Sitting
- Standing
- Bending
- Lifting
- Reaching
- Reading
- Thinking
- Concentrating
- Communicating
- Interacting with others
A major life activity also includes the operation of a major bodily function, including, but not limited to, functions of the following systems:
- Immune
- Normal cell growth
- Digestive
- Bowel
- Bladder
- Neurological
- Brain
- Respiratory
- Circulatory
- Endocrine
- Reproductive
This is not an exhaustive list, but represents the types of activities that are major life activities.
Substantially limits
An impairment is a disability if it substantially limits the ability of an individual to perform one or more major life activities as compared to most people in the general populations. When looking at whether or not an impairment substantially limits a major life activity, the ADA states that employers analyze the situation using nine principles:
- Apply the term "substantially limits" broadly. Do not spend much effort on it.
- Significant or severe restriction is not required. However, not every impairment is substantially limiting.
- Substantial limitation should not be the primary object of attention. You don't need to perform extensive analysis.
- Perform an individual assessment.
- You shouldn't need to use scientific, medical, or statistical analysis to determine whether someone can perform a major life activity compared to most people in the general population.
- Don't consider mitigating measures. It doesn't matter if an individual chooses to forgo mitigating measures.
- It doesn't matter if the impairment is episodic or in remission.
- Individuals do not need to be substantially limited in more than one major life activity.
- Effects of an impairment lasting fewer than six months can be substantially limiting. Impairments that last only a short period of time may be covered if sufficiently severe.
The law and the EEOC indicate that the focus on an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of "disability." Therefore, you should not spend much time trying to determine if an individual has a disability, as it should not require extensive analysis. Instead, you should shift your focus to:
- Whether discrimination occurred because of a disability,
- Whether an individual was qualified for a job, and
- Whether a reasonable accommodation was called for.
The courts are focused on whether discrimination has occurred, as well.
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