|
Contents:
1. Is anyone with a physical or
mental impairment protected?
2. The definition of disability.
3. The impact of case law on who is
disabled.
4. Where does this leave me?
Is anyone with a physical or mental
impairment protected?
When Congress was debating the bill
that became the Americans with
Disabilities Act (ADA) the goal was
to stop discrimination against
people with disabilities. The first
thing stated in the Public Law
passed by Congress is; "To establish
a clear and comprehensive
prohibition of discrimination on the
basis of disability." Congress went
on to state; "historically, society
has tended to isolate and segregate
individuals with disabilities, and,
despite some improvements, such
forms of discrimination against
individuals with disabilities
continue to be a serious and
pervasive social problem". Congress
also stated in this civil rights law
that; "individuals with disabilities
continually encounter various forms
of discrimination, including
outright intentional exclusion, the
discriminatory effects of
architectural, transportation, and
communication barriers,
overprotective rules and policies,
failure to make modifications to
existing facilities and practices,
exclusionary qualification standards
and criteria, segregation, and
relegation to lesser services,
programs, activities, benefits,
jobs, or other opportunities". It is
clear that Congress intended to put
a stop to this discrimination.
In order to stop discrimination
against people with disabilities
Congress had to define who is a
person with a disability. When
prohibiting discrimination against
people of different ethnic
backgrounds, different religions,
different skin colors, the
definition was rather easy. The task
of defining who is a person with a
disability was more difficult and
has proven to be much more complex
than ever imagined by Congress.
Back to Top
THE-DEFINITION-OF-DISABILITY
The ADA states that a person is
disabled for the purposes of the ADA
if the person has a physical or
mental impairment that
"substantially limits one or more of
the major life activities of such
individual". So, it takes more than
having a physical or mental
impairment, the impairment must be
substantially limiting. This is the
first "prong" of the three prong
definition of disability contained
in the ADA.
There are two other ways for a
person to be considered disabled
under the ADA. If a person has a
record of having an impairment that
limited one or more major life
activities the person can be
considered disabled under the ADA
even if the person no longer has the
impairment but faces discrimination
due to having had such an
impairment. This is the second
"prong" of the three prong
definition of disability. This is
most often seen in the area of
employment when a person has a
history of alcoholism or drug abuse.
A person with such a history who is
in recovery would no longer be
impaired or substantially limited.
But such people are often denied
employment because of the history.
The ADA makes it unlawful to
discriminate against a person
because of that person's history of
having an impairment that was
substantially limiting of the
person's ability to engage in major
life activities.
The ADA also defines a person as
disabled if the person is regarded
as having a disability. This is
again easiest to illustrate in the
employment setting. A person who has
had treatment for cancer and who is
in remission is often seen as being
disabled and can be passed over for
promotions or even demoted when
returning to work after an absence
for cancer treatment. That person is
not disabled due to a physical or
mental impairment but is regarded as
being disabled by the employer and
faces discrimination due to being
regarded as disabled. The "regarded
as prong" of the definition of
disability, the third "prong" also
applies to people who are disfigured
from injury or birth defect and who
are thereby regarded as disabled and
treated in discriminatory ways. An
example is a child with a facial
disfigurement rejected by a private
pre-school because of concerns of
other children's reactions.
Most people who seek the protection
against discrimination under the ADA
are people who do have a physical or
mental impairment and who believe
they fall under the first prong of
the definition of disability. To
fall under this definition the
physical or mental impairment must
result in a substantial limitation
of the person's ability to engage in
one or more major life activities.
This definition was taken word for
word from the definition of
"handicap" contained in the
Rehabilitation Act that has been
federal law since 1973. In the 17
years between the passage of the
Rehabilitation Act and the passage
of the ADA there was little debate
over who qualified as a person with
a disability. Though Congress did
not in either law define the term
"substantially limited" and did not
provide an exhaustive list of major
life activities, in most cases
people with physical or mental
impairments who claimed to be
disabled were accepted as people
with disabilities. However, with the
passage of the ADA millions of
people became interested in seeing
discrimination against them, or what
they perceived as discrimination,
stopped. Many federal judges decided
that Congress had gone to far in the
sweeping provisions of the ADA and
have worked diligently to reduce the
scope of this civil rights law.
Back to Top
THE IMPACT OF CASE LAW ON WHO IS
DISABLED
One of the first ADA cases to get to
the Supreme Court of the United
States (SCOTUS) actually expanded
the scope of ADA protection beyond
what many expected. In that case a
woman who was HIV+ but not sick in
anyway was deemed to be disabled
under the ADA because being HIV+
substantially limited her ability to
engage in the major life activity of
reproduction. Most people who worked
on the language of the ADA, and most
members of Congress, had not
considered reproduction in writing
the language of the ADA.
Unfortunately, for those who feel
that the protections of the ADA
should be as broad as possible, that
was the only SCOTUS decision that
has expanded the definition of who
is disabled.
A landmark decision by the SCOTUS is
known as the UAL v. Sutton decision.
In that case the SCOTUS disagreed
with the regulatory law written by
the U.S. Department of Justice
(DOJ). In that regulatory law the
DOJ stated: "The question of whether
a person has a disability should be
assessed without regard to the
availability of mitigating measures,
such as reasonable modifications or
auxiliary aids and services. For
example, a person with hearing loss
is substantially limited in the
major life activity of hearing, even
though the loss may be improved
through the use of a hearing aid.
Likewise, persons with impairments,
such as epilepsy or diabetes, that
substantially limit a major life
activity, are covered under the
first prong of the definition of
disability, even if the effects of
the impairment are controlled by
medication."
The SCOTUS ruled that a person's
impairment must be evaluated in the
context of medications and
appliances that are available and
that mitigate the person's
impairment, a reversal of the
position taken by the DOJ in the
regulatory law. This change in the
law, rulings of the SCOTUS are the
final word, not the regulatory law
written by the DOJ, took the ADA
protection against discrimination
away from millions of people who
suddenly were no longer disabled
under the ADA. People who were
substantially limited in walking but
less limited when using a cane no
longer are disabled under the ADA.
People with epilepsy who have
infrequent seizures thanks to
effective medications lost the
protection of the ADA. People who
were substantially limited due to
mental illness who became somewhat
more functional due to medications
no longer qualify for the protection
of the ADA. Only those who are
substantially limited in a major
life activity even when using
available medications and/or
appliances qualify under the ADA
subsequent to the UAL v. Sutton
decision. The SCOTUS directly
attacked the language of the
regulatory law by clearly stating
that a person with diabetes who has
the diabetes under control through
diet and insulin does not qualify
for the protection of the ADA.
The next major blow to the
Congressional intent that the
coverage of the ADA be as broad as
possible came through the SCOTUS
decision in the case known as Toyota
v. Williams. With the court having
the clear intent of reducing the
number of people protected by the
ADA they used the lack of a
definition of "substantial
limitation" in the ADA to write
their own narrow definition. In that
case the plaintiff was limited in
the major life activity of
performing manual tasks due to
impairments that limited her use of
her arms and hands. The SCOTUS in
their ruling stated that because she
could use her hands to brush her
hair and to brush her teeth her
limitation was not substantial and
she was not disabled under the ADA.
With this ruling it was clear that a
limitation had to be an almost total
limitation before the SCOTUS would
view the limitation as
"substantial".
These two SCOTUS decisions have
become the foundation of compelling
case law used by the United States
District Courts and the United
States Circuit Courts of Appeals in
determining whether people coming
before the courts qualify for the
protection of the ADA. An example of
how this works to limit who is
protected by the ADA can be seen in
a case in New York State where the
plaintiff was a woman who was
limited in her ability to walk due
to a physical impairment. In the
district court order in that case
the judge first referred to UAL v.
Sutton in rejecting any information
as to the woman's limited ability to
walk without assistance and only
looked and her limitation in walking
when using a cane. Then the judge
referred to Toyota v. Williams in
deciding that the limited distance
this woman had been able to walk
with the help of a cane resulted in
her limitation in walking not being
substantial. Her lawsuit was
dismissed by the judge concluding
that she did not qualify for the
protection of the ADA.
Another rather convoluted case that
shows the impact of the UAL v.
Sutton decision concerns a woman who
was limited in her ability to
breath, clearly a major life
activity. She had been fired from
her job because her employer would
not allow her to bring her portable
oxygen to work. The court looked at
her limitation in breathing only in
the context of the oxygen she used,
an appliance or medication that
mitigated her impairment. Because
when using oxygen her blood oxygen
levels were normal (not the case
when not using oxygen) the court
concluded that she was not
substantially limited in the major
life activity of breathing. However,
because it was clear from inner
office memos that her employer
regarded her as disabled she won her
case based on being regarded as
disabled even though the court found
her to have no substantial
limitation of any major life
activity.
Back to Top
WHERE DOES THIS LEAVE ME?
The determination of disability must
be made on a case by case basis.
Congress was very clear in stating
this in the law. Many people have
said that only a federal judge can
determine if a person is disabled.
Actually, as shown in Toyota v.
Williams, only the Supreme Court of
the United States can have the final
word on whether or not an individual
is disabled under the ADA (though
most cases where it is concluded
that a person is or is not disabled
are not appealed and very few are
ever appealed to the SCOTUS). But a
reasonable conclusion can be reached
by understanding what is stated in
the law and what has been decided by
the courts. In order to be protected
by the ADA as a person with a
disability under the first prong of
the ADA definition you must have a
physical or mental impairment. The
impairment must limit your ability
to engage in one or more major life
activities. This limitation must
continue to be substantial even when
medications and/or appliances serve
to mitigate the impairment or the
limitations that result from the
impairment.
To be deemed to be disabled under
the second prong of the ADA
definition of disability you must
have a history of being disabled and
the discrimination at question must
have occurred based on that history.
To be disabled under the third prong
of the ADA you must be able to
document or establish to the
satisfaction of the court that you
were regarded as being disabled and
that the discriminatory treatment at
issue was because of you being
regarded as being disabled. Most
cases that have involved people
disabled under the second or third
prong of the definition of
disability are employment (ADA Title
I cases). One case, decided in the
summer of 2005, was the first case
where the court ordered an employer
to provide a "reasonable
accommodation" to a person who was
deemed to be disabled under the
third prong, the "regarded as" prong
of the ADA definition of disability.
|
