Title I Employment provisions
Question 3: What constitutes a disability?
Section 3(2) of the ADA provides a three-prong definition to ascertain who is and is not afforded protection. A person with a disability is an individual who:
Test 1 — has a physical or mental impairment that substantially limits one or more of his or her major life activities,
Test 2 — has a record of such an impairment; or Test 3 — is regarded as having such an impairment.
This definition is comparable to the definition of handicap under the Rehabilitation Act of 1973. Congress adopted this terminology in an attempt to use the most current acceptable terminology but intended that the relevant case law developed under the Rehabilitation Act be applicable to the defi- nition of disability under the ADA.1 It should be noted, however, that the definition and regulations applying to disability under the ADA are more favorable to the disabled individual than the handicap regulations under the Rehabilitation Act.
The first prong of this definition includes three major subparts that further define who is a protected individual under the ADA. These subparts, namely (1) a physical or mental impairment, (2) that substantially limits, (3) one or more of his or her major life activities, provide additional clarifi- cation as to the definition of a disability under the ADA.
A physical or mental impairment
The ADA does not specifically list all covered entities. Congress noted that:
it is not possible to include in the legislation a list of all the specific conditions, diseases, or infections that would constitute physical or mental impairments be- cause of the difficulty in ensuring the comprehensive- ness of such a list, particularly in light of the fact that new disorders may develop in the future.2
1 EEOC Interpretive Guidelines, 56 Fed. Reg. 35,740 (July 26, 1991); Report of the Senate Comm.
on Labor and Human Resources on the Americans With Disabilities Act of 1989, S. Rep. No. 116, 101st Cong., 1st Sess. (1989).
2 S. Comm. on Lab. and Hum. Resources Rep. at 22.
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any physiological disorder, or condition, cosmetic dis- figurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskel- etal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genital- urinary, hemic and lymphatic, skin, and endocrine.1 A mental impairment is defined by the ADA as:
any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.2
A person’s impairment is determined without regard to any medication or assisting devices that the individual may use. For example, an individual with epilepsy who uses medication to control the seizures or a person with an artificial leg would be considered to have an impairment even if the medicine or prosthesis reduced the impact of the impairment.
The legislative history is clear that an individual with AIDS or HIV is protected by the ADA.3 A contagious disease such as tuberculosis would also constitute an impairmment. However, an employer does not have to hire or retrain a person with a contagious disease if it poses a direct threat to the health and safety of others. This is discussed in detail later in this section.
The physiological or mental impairment must be permanent in nature.
Pregnancy is considered temporary and thus is not afforded protection under the ADA, but is protected under other federal laws. Simple physical character- istics, such as hair color, left handedness, height, or weight within the normal range, are not considered impairments. Predisposition to a certain disease is not an impairment within this definition. Environmental, cultural, or economic disadvantages, such as lack of education or prison records, are not impairments.
Similarly, personality traits such as poor judgment, quick temper, or irrespon- sible behavior are not impairments. Conditions such as stress and depression may or may not be considered an impairment depending on whether the condition results from a documented physiological or mental disorder.4
Case law under the Rehabilitation Act, applying similar language as in the ADA, has identified the following as some of the protected conditions:
blindness, diabetes, cerebral palsy, learning disabilities, epilepsy, deafness, cancer, multiple sclerosis, allergies, heart conditions, high blood pressure, loss of leg, cystic fibrosis, hepatitis B, osteoarthritis, and many other conditions.
1 Technical Assistance Manual, supra.
2 Ibid.
3 H.Comm. on Educ. and Lab. Rep. at 52; S.Comm. on Lab. and Hum. Resources Comm. at 22, 136 Cong. Rec. S9697 (July 13, 1990). See also Technical Assistance Manual, supra.
4 Technical Assistance Manual, supra.
138 Disaster management and preparedness
Substantial limits
While Congress clearly desired to have the term disability construed broadly, merely possessing an impairment is not sufficient for protection under the ADA. An impairment is only a disability under the ADA if it substantially limits one or more major life functions. An individual must be unable to perform or be significantly limited in performance in a basic activity that can be performed by an average person in America.
To assist in this evaluation, a three-factor test was provided to determine whether an individual’s impairment substantially limits a major life activity:
• The nature and severity of the impairment
• How long the impairment will last or is expected to last
• The permanent and long-term impact, or expected impact of the impairment
The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis. The three-factor test should be considered because it is not the name of the impairment or condition that determines whether an individual is protected, but rather the effect of the impairment or condition on the life of the person. Some impairments such as blindness, AIDS, and deafness are by their nature substantially limiting, but other impairments may be disabling for some individuals and not for others, depending on the nature of the impairment and the particular activity.1
Individuals with two or more impairments, neither of which by itself substantially limits a major life activity, may be combined together to impair one or more major life activities. Temporary conditions such as a broken leg, common cold, sprains/strains are generally not protected because of the extent, duration, and impact of the impairment. However, such temporary conditions may evolve into a permanent condition, which substantially lim- its a major life function if complications arise.
In general, it is not necessary to determine if an individual is substan- tially limited in a work activity if the individual is limited in one or more major life activities. An individual is not considered to be substantially limited in working if he or she is substantially limited in performing only a particular job or unable to perform a specialized job in a particular area. An individual may be considered substantially limited in working if the indi- vidual is restricted in his or her ability to perform either a class of jobs or a broad range of jobs in various classes when compared to an average person of similar training, skills, and abilities. Factors to be considered include:
• The type of job from which the individual has been disqualified be- cause of the impairment
• The geographical area in which the person may reasonably expect to find a job
1 Ibid.
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or abilities from which the individual is disqualified within the geo- graphical area
• The number and types of other jobs in the area that do not involve similar training, knowledge, skill, or abilities from which the individ- ual also is disqualified because of the impairment1
In evaluating the number of jobs from which an individual might be excluded, the EEOC regulations note that it is only necessary to show the approximate number of jobs from which the individual would be excluded.
Major life activities
An impairment must substantially limit one or more major life activities to be considered a disability under the ADA. A major life activity is an activity that an average person can perform with little or no difficulty. Examples include walking, seeing, speaking, hearing, breathing, learning, performing manual tasks, caring for oneself, standing, working, lifting, reading, and sitting.2 This list of examples is not all-inclusive. All situations should be evaluated on a case-by-case basis.
The second test of this definition of disability requires that an individual possess a record of having an impairment as specified in Test 1. Under this test, the ADA protects individuals who possess a history of, or who have been misclassified as possessing a mental or physical impairment that sub- stantially limits one or more major life functions. A record of impairment would include such documented items as educational, medical, or employ- ment records. Safety and loss prevention professionals should note that merely possessing a record of being a disabled veteran or record of disability under another federal or state program does not automatically qualify the individual for protection under the ADA. The individual must meet the definition of disability under Test 1 and possess a record of such disability under Test 2.
The third test of the definition of disability includes an individual who is regarded or treated as having a covered disability even though the indi- vidual does not possess a disability as defined under Tests 1 and 2. This part of the definition protects individuals who do not possess a disability that substantially limits a major life activity from the discriminatory actions of others because of their perceived disability. This protection is necessary because society’s myths and fears about disability and disease are as hand- icapping as are the physical limitations that flow from actual impairment.3
Three circumstances in which protection would be provided to the indi- vidual include:
1 Ibid.
2 Ibid.
3 Ibid.
140 Disaster management and preparedness 1. When the individual possesses an impairment which is not substan- tially limiting but the individual is treated by the employer as having such an impairment
2. When an individual has an impairment that is substantially limiting because of the attitude of others toward the condition
3. When the individual possesses no impairment but is regarded by the employer as having a substantially limiting impairment1
To acquire the protection afforded under the ADA, an individual must not only be an individual with a disability, but also must qualify under the above noted tests. A qualified individual with a disability is defined as a person with a disability who:
satisfies the requisite skills, experience, education, and other job-related requirements of the employment po- sition such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.2
Managers should be aware that the employer is not required to hire or retain an individual who is not qualified to perform a particular job.