Friday, August 5, 2011

What Exactly is a "Disability" Under the ADA?

As I've noted in other posts, Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-17, makes it illegal for an employer to discriminate on the basis of your disability. The ADA protects workers in job application procedures; hiring; advancement; discharge; compensation; job training; and just about every other aspect of employment.

But, too be protected by the ADA, a person must meet the definition of the term "qualified individual with a disability" as defined by the Act. So it is critical to understand what it means to be a qualified individual with a disability. Who's qualified?

The definition of the term "disability" under the ADA is specific to this act so it often differs from the definition of "disability" in other laws workers are more familiar with (Ex. Workers compensation or Social Security Disabilty). Conversely, a person who meets the ADA definition of "disability" might not meet the requirements for disability retirement.

The statutory definition of "disability" under the ADA with respect to an individual employee means:

1.  a physical or mental impairment that substantially limits one or more of the major life activities of the individual;

2.  the impairment is documented; or

3.  the individual is regarded as having such an impairment.

To be found disabled under the ADA you must meet one of these requirements.  Note that you do not need all three.

To fall under the first part of the definition (this is what most people should be concerned with), a person must establish three elements:

1.  that (s)he has a physical or mental impairment

2.  that substantially limits

3.  one or more major life activities.

The second and third parts of the definition cover persons who may not have an impairment that substantially limits a major life activity but who have a history of, or have been misclassified as having, such a substantially limiting impairment, or who are perceived as having such a substantially limiting impairment. The focus under the second and third parts is on the reactions of other persons to a history of an impairment or to a perceived impairment. A history or perception of an impairment that substantially limits a major life activity is a "disability" under the ADA.  This is a peculiar qualification of the ADA that we do not see in practically any other law or statute. These parts of the definition reflect a recognition that stereotyped assumptions about what constitutes a disability and unfounded concerns about the limitations of individuals with disabilities form major discriminatory barriers, not only to those persons presently disabled, but also to those persons either previously disabled, misclassified as previously disabled, or mistakenly perceived to be disabled. To combat the effects of these prevalent misperceptions, the definition of an individual with a disability precludes discrimination against persons who are treated as if they have a substantially limiting impairment, even if in fact they have no such current incapacity. So 1 deals with objective disabilities and 2 and 3 deal with perception.

To determine whether someone is protected by the ADA, the EEOC investigator first determines why the individual believes they have been discriminated against on the basis of disability. Your response to the investigator should identify the type of condition at issue.

The investigator then determines whether the individual meets the first part of the definition of "disability"; that is, the investigator determines whether the charging party actually has a physical or mental impairment that substantially limits a major life activity. In that regard, the investigator determines whether the charging party's condition is an impairment. If the condition is an impairment, then the investigator determines whether the charging party's impairment substantially limits a major life activity other than working. If the impairment does not, then the investigator determines whether the charging party is substantially limited in the ability to work.

If you fail to meet the first part of the definition of "disability,"  then the investigator determines whether the you the second or third part of the definition.

I will discuss the nuances of "impairment" in a future post.

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1 comment:

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