Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services
Last updated: December 2012
The Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), 42 U.S.C. 12101 et seq., prohibits discrimination on the basis of "disability" in several critical areas. Those areas include state and local government services, places of public accommodation, employment, telecommunications and transportation. Each area is explained in other chapters of this guidebook.
Under the ADA, you have a disability if you have at least one of the following:
- a physical or mental impairment that "substantially limits" one or more "major life activities";
- a record of such an impairment; or
- you are regarded as having such an impairment.
The measurement for an impairment is when the condition is most acute. Therefore, if you have sporadic impairment, disability will be assessed at the time when the symptoms are most evident.
There are two basic parts to having a disability:
Physical or Mental Impairments
In order to have a disability under the ADA , you must have a physical or mental impairment. Not everything that restricts your activities qualifies as an impairment. However, under the ADAAA, the definition of disability now must be construed in favor of broad coverage to the maximum extent permitted.
A physical impairment is any medical disorder, condition, disfigurement or loss affecting one of the body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.
A mental impairment is any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
It is not possible to include a list of all the specific conditions that would constitute physical or mental impairments, but some examples may be useful.
Examples of conditions that are impairments: AIDS, and its symptoms; Alcoholism; Asthma; Blindness or other visual impairments; Cancer; Cerebral palsy; Depression; Diabetes, Epilepsy; Hearing or speech impairments; Heart Disease; Migraine Headaches; Multiple sclerosis; Muscular dystrophy;Orthopedic impairments; Paralysis; complications from Pregnancy; Thyroid gland disorders; Tuberculosis; loss of body parts.
Certain temporary, non-chronic impairments of short duration with little or no residual effects usually are not disabilities. Likewise, environmental conditions and alternative lifestyles are not protected. A person currently engaging in the illegal use of drugs is not considered an individual with a disability. This refers both to the illegal use of unlawful drugs such as cocaine as well as prescription drugs.
Examples of conditions that are NOT impairments: The common cold or the flu, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, compulsive gambling, pregnancy, old age, lack of education, poor judgment, or bisexuality or homosexuality.
Under the ADA, every "covered entity" may be required to decide whether you have a disability.
The term "covered entity" means a person, a business, an organization, or an agency that the ADA says must not discriminate against persons with disabilities.
Examples of "Covered Entities":
The covered entity must make a decision as to whether you have a physical or mental impairment, and whether that impairment is substantially limiting. In many cases, however, entities fail to make this assessment.
Substantial Limit on a Major Life Activity
In order to have a disability under the ADA, a physical or mental impairment (or a record of it or a perception of it) must "substantially limit" one or more of your "major life activities."
Major Life Activities. These consist of functions such as caring for yourself, (including bathing, dressing, shaving, preparing a meal, and going to the restroom), performing manual tasks, eating, sleeping, standing, walking, lifting, reaching, bending seeing, hearing, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
As a result of the ADAAA, major life activities now also include the operation of any major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive (procreation) functions.
Major life activities do not include the following: caring for others, driving, ability to have a relationship, and grocery shopping.
Substantial Limit. It is not enough that the impairment has a minor effect on major life activities. The impairment must "substantially limit" these activities. However, under the ADAAA, the term “substantially limits” is not meant to be a demanding standard. It must be construed very liberally and broadly in favor of expansive coverage. The term now requires a lower degree of functional limitation than was required prior to the ADAAA. An impairment no longer needs to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” The question of whether an impairment is substantially limiting requires an individualized assessment, but does not require an extensive analysis. In other words, the determination whether an impairment substantially limits a major life activity does not usually require scientific, medical, or statistical evidence. However, you may use such evidence if appropriate.
The facts of your particular case will determine whether or not your major life activities are substantially limited.
Examples of Substantially Limiting Impairments:
The term “substantially limit” does not require that an impairment last for a particular length of time. Indeed, an impairment that lasts fewer than six months can be substantially limiting.
Moreover, an impairment that is episodic (symptoms or effects not present all the time) or in remission is a disability if it would substantially limit a major life activity when active. Therefore, the determination of whether your impairment substantially limits a major life activity is based on the limitations imposed by the condition when its symptoms are present even if you are not experiencing the symptoms now. Impairments that are episodic include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission is also a disability if it may possibly return in a substantially limiting form.
The ADA regulations identify examples of specific impairments that should easily be considered disabilities. These impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring 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.
Factors to Consider in Determining Whether or Not Impairment is Substantially Limiting
The regulations state that the condition, manner or duration under which a major life activity can be performed may sometimes be considered in determining whether or not your impairment is substantially limiting, provided those factors are relevant. This means that in certain cases, it is appropriate to consider the difficulty, effort, or time to perform a major life activity, the pain experienced when performing a major life activity, the length of time a major life activity can be performed, and/or the way the impairment affects the operation of a major bodily function.
But, as to many impairments, including those that should easily be concluded to be disabilities, it may be unnecessary to use these factors to determine whether the impairment substantially limits a major life activity.
"Working" As a Major Life Activity
An impairment might limit someone’s ability to perform some aspect of his/her job, but may not substantially limit any other major life activity. In these situations, the person may be substantially limited in working. However, it should generally be unnecessary to determine whether someone is substantially limited in working simply because the ADAAA has greatly expanded the list of other major life activities and made it easier to find that a person is substantially limited in performing any major life activity.
Where it is necessary to determine whether or not there is a substantial limitation on the major life activity of “working,” the decision should be made with reference to the difficulty of performing a broad class of jobs. A “class” of work refers either to the nature of the work (e.g., commercial truck driving or assembly line jobs) or to job-related requirements that a person is limited in meeting (e.g., jobs requiring extensive walking, prolonged standing, or repetitive or heavy lifting). However, you cannot establish that you are substantially limited in the major life activity of working simply by showing that you can no longer perform the unique aspects of a single specific job.
Corrective and Mitigating Measures eliminate or reduce the symptoms or impact of an impairment, including medicines and assistive devices, such as eyeglasses, prosthetic limbs, and wheelchairs.
Examples of mitigating measures include: medication, medical equipment and devices, prosthetic limbs, low vision devices that magnify an image, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, psychotherapy, behavioral therapy and physical therapy.
With one exception, the good or positive effects of your use of any corrective or mitigating measures must be ignored in determining if you meet the definition of disability. Instead, the determination of disability must focus on whether you would be substantially limited in performing a major life activity without the mitigating measure. You should focus on the extent of your limitations before you used the mitigating measure or on what would happen if you stopped using a mitigating measure. The exception refers to ordinary eyeglasses or contact lenses. If you are substantially limited in seeing, but this is not true when wearing glasses or contacts, you are not disabled for that reason. On the other hand, some mitigating measures, such as medications, have negative side effects. If you experience negative effects, those bad effects can be considered in determining whether or not you have a disability.
However, it will often be unnecessary to consider the negative effects. For example, it is unnecessary to consider the burdens associated with dialysis treatment for someone whose kidney function would be substantially limited without this treatment.
There are certain situations where you are considered to have a "disability" under the ADA even though you do not actually have a substantially limiting impairment. One of these situations occurs where you have a "record" of a substantially limiting impairment.
A "record" of a substantially limiting impairment means that you have either:
- You do not currently have a substantially limiting impairment but you had one in the past; or
- You have been wrongly classified as having such impairment.
This law is intended to make sure that people are not discriminated against because of a history of disability. A person would fall into this category of disability if his medical records showed that he once had a disability, but has now recovered.
This law also is intended to make sure that people are not discriminated against because they have been classified as having a disability, when they really never had one.
To prove discrimination under this section of the ADA, you would have to show that a covered entity relied on a record showing that you had a substantially limiting impairment.
Regarded As Having an Impairment
There is another situation where you can be considered as having a "disability", even though you do not actually have a substantially limiting impairment. Under the ADAAA, this situation arises where a covered entity “regards” you as having a disability by taking an action prohibited by the ADA (see subsequent sections of this guidebook) based on any impairment you have or the covered entity believes you have. In this situation, you are considered to have a disability whether or not you have an impairment and whether or not an impairment limits a major life activity. Also, you do not need prove that a covered entity regarded you as being substantially limited in a particular major life activity.
However, a covered entity may challenge a claim of disability under the “regarded as” method if the impairment is both transitory and minor. A “transitory” impairment has an actual or expected duration of 6 months or less.
Note: Persons who only qualify as disabled under the “regarded as” method are not entitled to reasonable accommodations.
In some situations, you may be considered disabled under the “regarded as” method simply because you are denied employment or services or benefits by a covered entity due to myths, fears, and stereotypes about disabilities.
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