Module 2: Who has rights under Title I of the ADA?

Note: This section includes the significant changes to the definition of disability made by the ADA Amendments Act of 2008. The Equal Employment Opportunity Commission (EEOC) issued revised ADA Title I regulations in March 2011 to reflect those changes.

There are about 99 different definitions of disability - for vocational rehabilitation services, social security benefits, a designated parking plate or placard to short or long term disability insurance. In order to be protected under the ADA a person has to meet the ADA’s specific definition of disability. This is a legal definition of disability, not a medical definition. In order to have rights under Title I a person also must be “qualified.” We’ll discuss the definition of disability first, then we’ll talk about what it means to be "qualified."

There are three parts to the ADA definition of disability. In order to be considered a person with a disability under the ADA, a person only has to meet one of the three parts.

1. a physical or mental impairment that substantially limits one or more major life activities of such individual,
2. a record of such an impairment, or
3. being regarded as having such an impairment.

In the ADA Amendments Act of 2008, which went into effect on January 1, 2009, Congress clearly expressed that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally should not require extensive analysis.

Part One: Person has an impairment that substantially limits a major life activity

The first part is someone who currently has a physical or mental impairment that substantially limits a major life activity. Neither the statute nor EEOC regulations list all diseases or conditions that make up "physical or mental impairments," because it would be impossible to provide a comprehensive list, given the variety of possible impairments.

What is considered as a major life activity?

The original ADA passed in 1990 did not include examples of major life activities. The Equal Employment Opportunity Commission’s 1991 regulations to implement Title I of the ADA included a brief list of examples of major life activities: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This lead to a fair amount of confusion and court decisions that narrowly interpreted the definition of disability. To rectify that Congress included examples of major life activities in the ADA Amendments Act of 2008.

Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Life Activities: Bodily Functions

The ADA states that “major bodily functions” are considered to be major life activities. Major bodily functions, include but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Before the ADA Amendments Act of 2008, it was unclear whether someone with a medical condition that chiefly affected internal functions would be covered. Conditions such as gastrointestinal disorders and cancer, often mostly affect bodily functions without many outward limitations.

Different courts came up with different decisions on whether bodily functions were classified as major life activities. In the ADA Amendments Act Congress cleared up the confusion. Now “a major life activity” also includes the operation of a major bodily function.

For example: A person with diabetes will meet the definition of disability because he is substantially limited in functions of the endocrine system. Similarly a person with AIDS will meet the definition of disability because she is substantially limited in functions of the immune system.

When does an impairment substantially limit a major life activity?

To have a disability under the ADA, a person must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the person in performing a major life activity to be considered “substantially limiting.” A common sense assessment should be made based on comparing a person’s ability to perform a specific major life activity with that of most people in the general population.

Mitigating Measures

The determination of whether an impairment substantially limits a major life activity is to be made without regard to the beneficial effects of mitigating measures such as medication, prosthetics, mobility devices, hearing aids and cochlear implants - to name just a few mitigating measures.

For example: A person has one leg. When he wears his prosthetic leg he can walk fine, but without the prosthetic leg he has great difficulty walking. This person has a disability under the ADA because the determination of whether he’s substantially limited in the major life activity of walking is made without considering the prosthetic leg.

This rule concerning mitigating measures does not apply to people whose vision is corrected with eye glasses or contact lenses. The use of “ordinary eyeglasses or contact lenses” are considered when determining whether someone has a disability.

For example: A woman with myopia whose visual acuity is fully corrected when she’s wearing eyeglasses, is not substantially limited in seeing, because the determination is made when she’s wearing the glasses. Just think of how many people would be considered to have a disability under the ADA if we did not take into account the beneficial effects of ordinary eyeglasses and contact lenses.

Impairments - Episodic or In Remission

The ADA Amendments Act specifically states that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. This means that chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would only substantially limit a major life activity when the impairment is active.

Examples may include epilepsy, hypertension, multiple sclerosis, asthma, cancer, depression, bipolar disorder, and post-traumatic stress disorder.

Part Two: Person has a record of such an impairment

This part of the definition is intended to prevent discrimination against people who have been classified or labeled, correctly or incorrectly, as having a disability. It extends coverage of the ADA to people who have recovered, in whole or in part, from a disability but are subjected to discrimination because of their history of a disability.

For example: A woman had cancer ten years ago. At that time she was unable to work or to take care of herself. She’s been cancer-free for eight years. She applies for a job that she is qualified to do. The employer refuses to consider her application because he knows about the cancer. He is concerned about health insurance costs and that she will get sick again. This woman is covered under the second part of the ADA definition of disability, because she had an impairment (cancer) that substantially limited a major life activity (normal cell growth, caring for herself and working).

This part of the definition also protects people who may have been misclassified or misdiagnosed as having a disability. For example it protects a person who was erroneously classified as having an intellectual disability (formerly called mental retardation).

Part Three: A person is regarded as having such an impairment

This third part of the definition applies to a person who is regarded as having a physical or mental impairment that substantially limits one or more major life activities. In the ADA Amendments Act of 2008, Congress made major changes to this third part of the ADA definition of disability. An individual no longer has to show that the employer believed an impairment substantially limited performance of a major life activity. A person is covered under this third part of the definition when an employer takes some action prohibited by the ADA - for example refusal to hire, a demotion or termination - because of an actual or perceived impairment. So if a person is subjected to a prohibited employment action because of actual or perceived impairment, he is covered under the "regarded as" part of the definition.

Here are a few examples: A woman has facial scars. She applies for a job and is refused employment because of the scars. She's been subjected to a negative employment action (refusal to hire) based on an impairment – facial scars. In another situation an employer fires an employee from a lifeguard position because the employer heard that the employee has AIDS. The employee does not have AIDS. The employee is covered under this third part of the definition because the employee has been subjected to a negative employment action (termination) based on a perceived impairment (AIDS).

However, impairments that are minor and transitory (6 months or less) do not fall under the “regarded as” part of the definition. For example: An employer who does not hire a temporary employee for a position scheduled to begin immediately because a sprained wrist would prevent the person from typing for the next three weeks is not regarding the person as having a disability because the sprained wrist is transitory and minor.

One final word about this.... People covered only under the "regarded as" part of the ADA definition of disability are not entitled to reasonable accommodation.

Quick Review

Under the ADA, the term "disability" means, with respect to an individual -

1. a physical or mental impairment that substantially limits one or more major life activities of such individual.
2. a record of such an impairment. or
3. being regarded as having such an impairment.

Remember, a person has to meet just one part to be considered to have an ADA disability.

Exclusions from the definition

The ADA states that the term "disability" does not include the following: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, sexual behavior disorders, compulsive gambling, kleptomania and pyromania.

Congress wasn’t saying that people with these conditions or disorders might not have problems, but Congress was very specific that they do not get civil rights protection under the ADA based on these conditions or disorders.

Under the ADA the term “disability” does not include current illegal use of drugs. An employer may discharge or deny employment on the basis of drug use to someone who is currently illegally using drugs, without fear of being held liable for disability discrimination. An employer is not obligated to provide reasonable accommodation for a person based on the person’s current illegal use of drugs.

However, people with drug addiction who have been successfully rehabilitated may be protected by the ADA. And alcoholism is treated differently than illegal use of drugs.

There’s more information in the FAQ section on drug use and alcoholism.

For protection under the ADA, a person must be qualified to do the job

To be protected by the ADA, a person must not only meet the ADA definition of disability, but the person must be qualified. An employer is not required to hire or retain someone who is not qualified to perform a job. A “qualified” person with a disability is someone who meets the skill, experience, education, and other job-related requirements of the position, and who, with or without reasonable accommodation, can perform the essential functions of the job.

For example: The first step in determining whether an accountant who has cerebral palsy is qualified for a certified public accountant job is to determine if the person is a licensed CPA. If not, she is not qualified. Or, if a company's policy is that all managers have at least three years' experience working with the company, a man who is blind and has worked at the company for two years would not be qualified to be a manager.

The second step is to determine if the person can perform the essential functions of the job, with or without reasonable accommodation. It’s important to first identify the essential functions of the job; and then consider whether the person with a disability can perform these functions, unaided or with a reasonable accommodation.

Another issue: Is the job function essential or marginal?

It’s not always obvious whether a function is essential or marginal. Here are some things to consider: 

1. The position exists to perform the function.
   
   For example: A company advertises a position for a floating supervisor to substitute when regular supervisors on the day, night, and graveyard shifts are absent. The only reason this position exists is to have someone who can work on any of the three shifts in place of an absent supervisor. Therefore, the ability to work at any time of day is an essential function of the job.
   
   
2. There are a limited number of other employees available to perform the function, or among whom the function can be distributed. 
   
   For example: It may be an essential function for a file clerk to answer the telephone if there are only three employees in a very busy office and each employee has to perform many different tasks. In a different situation with more administrative staff, the ability to answer the telephone may not be an essential function of the job for a person who is a file clerk or may not be an essential function for every file clerk. In this case, someone who is deaf would probably be qualified for the file clerk position.
   
   
3. A function is highly specialized, and the employee is hired for special expertise or ability to perform the function. 
   
   For example: A company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in Japanese. Fluent communication in Japanese is an essential function of the job.

Evidence of whether a function is essential:

• Employer's judgment
• Job descriptions before advertising or interviewing
• Amount of time spent performing the function
• Consequences of not performing the function
• Terms of a collective bargaining agreement
• Current work experience of others in similar jobs

Sometimes the amount of time spent performing the function is key to whether a job function is essential, but sometimes it’s the consequences of not performing the function that make the function essential.

For example: A firefighter may rarely have to carry a 200 pound person from a burning building, but being able to perform this function may be essential to the firefighter's job.

Qualification Standards, Employment Tests or other Selection Criteria

An employer may have qualification standards, administer employment tests and have selection criteria that apply to everyone in a job category and help determine if job applicants and employees are qualified. These standards, tests and criteria, must be job-related and consistent with business necessity. Job criteria that intentionally or unintentionally screen out, or tend to screen out, a person with a disability because of disability may not be used unless the employer demonstrates that those criteria are job-related to the position to which they are being applied and are consistent with business necessity.This provision is applicable to all types of selection criteria, including safety, vision, hearing, walking and lifting requirements, and employment tests.

For example: A police department that requires all its officers to be able to make forcible arrests and to perform all job functions in the department might be able to justify stringent physical requirements for all officers, if in fact they are all required to be available for any duty in an emergency.

An employer might have to consider whether there’s a reasonable accommodation that would allow a person with a disability to meet a standard, pass an employment test or meet selection criteria. We’ll discuss reasonable accommodation in the next module.

Association with a Person with a Disability

This part of the law prohibits employers from making employment decisions based on concerns about the disability of a family member of a job applicant or employee, or anyone else with a disability with whom this person has a relationship or association.

For example: An employer may not refuse to hire a person because the person’s child has a disability. An employer may not fire an employee because the employee does volunteer work with people who have AIDS.

But the ADA does not require employers to provide reasonable accommodation to an employee because of an association with a person with a disability.

For example: An employer is not required to provide an employee with a modified work schedule as an accommodation, to enable the employee to care for a child with a disability. Of course, the Family Medical Leave Act and other laws might apply to this situation. But not the ADA.

Frequently Asked Questions

1. What is a physical impairment?

Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

Reference: E E O C Title I Regulations 29CFR1630

2. What is a mental impairment?

Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Reference: E E O C Title I Regulations 29CFR1630

3. Is pregnancy an impairment?

Because pregnancy is not the result of a physiological disorder, it is not an impairment. Complications resulting from pregnancy, however, are impairments.

Reference: E E O C Compliance Manual Section 902: Definition of the Term Disability

4. Is obesity an impairment?

Being overweight, in and of itself, generally is not an impairment. On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm is an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment.

Reference: E E O C Compliance Manual Section 902: Definition of the Term Disability

5. Are temporary impairments covered under the ADA?

It depends. Generally, conditions that last for only a few days or weeks and have no permanent or long-term effects on an individual's health are not substantially limiting impairments. Examples of such transitory conditions are common colds, influenza, and most broken bones and sprains. But an impairment does not necessarily have to be permanent to rise to the level of a disability. Some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities.

Reference: E E O C Compliance Manual Section 902: Definition of the Term Disability

6. Is a person with alcoholism covered under the ADA?

A person who is an alcoholic is an "individual with a disability" under the ADA. Employees who use alcohol may be required to meet the same standards of performance and conduct that are set for other employees. An employer may prohibit the use of alcohol at the workplace. In other words, an employer does not have to tolerate a person using alcohol on the job, or coming to work under the influence of alcohol. In those circumstances, an employee with a disability could be disciplined or even terminated, as long as the discipline or termination would be the same for an employee without a disability.

Reference: E E O C Title I Technical Assistance Manual

7. Is a person with drug addiction who is currently illegally using drugs covered under the ADA?

The ADA excludes individuals currently engaging in the illegal use of drugs.

Reference: E E O C Compliance Manual Section 902: Definition of the Term Disability

8. Is a person with a history of drug addiction who is no longer illegally using drugs covered under the ADA?

Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

Reference: E E O C Title I Technical Assistance Manual

This is the end of Module 2.

Next Module: Reasonable Accommodation

Course Contents

• Course Introduction
• Module 1: Who has obligations
• Module 2: Who has rights
• Module 3: Reasonable Accommodation
• Module 4: Performance & Safety
• Module 5: Pre-Employment
• Module 6: Medical Information & Confidentiality
• Module 7: Complaints
• Resources