WHAT IS A DISABILITY?

The ADA has been amended several times since its passage in 1990 and is undergoing continuous interpretation in the court systems. Contact your Regional ADA National Network Center at (800) 949-4232 (V/TTY) for the most up-to-date information.

The following information is excerpted from the Core Curriculum developed by Adaptive Environments, Inc. for the National Institute on Disability and Rehailitation Research.

The ADA has a three-part definition of disability that is based on the definition under the Rehabilitation Act and reflects the specific types of discrimination experienced by people with disabilities. Accordingly, it is not the same as the definition of disability under other laws, such as state workers' compensation laws or other federal or state laws that provide benefits for people with disabilities and disabled veterans.

Under the ADA, an individual with a disability is a person who:

· Has a physical or mental impairment that substantially limits one or more major life activities.

· Has a record of such an impairment.

· Is regarded as having such an impairment.

References: TAM I-2.2, TAM II-2.1000, TAM III-2.1000

More information and definitions are included in the text below:

Physical and Mental Impairments

A physical impairment is defined by the ADA as:"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, genitourinary, hemic and lymphatic, skin, and endocrine."

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."

Neither the statute nor the 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.

An impairmentunder the ADA is a physiological or mental disorder; therefore, simple physical characteristics, such as eye or hair color, left-handedness, or height or weight within a normal range, are not impairments. A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease would not be an impairment. Similarly, personality traits such as poor judgment, quick temper or irresponsible behavior, are not considered impairments. Environmental, cultural or economic disadvantages, such as lack of education or a prison record also are not impairments.

Example:

A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. A person who cannot read because she dropped out of school is not an individual with a disability, because lack of education is not an impairment.

Stress and depression are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder.

Example:

A person suffering from general stress due to job or personal life pressures would not be considered to have an impairment. However, if this person is diagnosed by a psychiatrist as having an identifiable stress disorder, he or she would have an impairment that may be defined as a disability.

A person who has a contagious disease has an impairment.

Example:

Infection with the HIV is considered an impairment. The Supreme Court has ruled that an individual with tuberculosis that affected her respiratory system had an impairment under Section 504 of the Rehabilitation Act.

References: TAM I-2.2(a)(i), TAM II-2.2000, TAM III-2.2000, 28 CFR 35.104
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Substantially Limits

An impairment is a disability under the ADA only if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.

The regulations provide three factors to consider when determining whether a person's impairment substantially limits a major life activity:

· The nature and severity.

· How long it will last or is expected to last.

· Its permanent or long-term impact or expected impact.

Examples:

A person with a minor vision impairment, such as 20/40 vision, does not have an impairment that substantially limits the major life activity of seeing.

A person who can walk for 10 miles continuously is not substantially limited in walking merely because on the 11th mile he or she begins to experience pain. Most people would not be able to walk 11 miles without experiencing discomfort.

These factors must be considered because in most cases it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person. Some impairments, such as blindness, deafness, HIV infection or AIDS, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities.

Example:

A person has a mild form of arthritis in her wrists and hands and a mild form of osteoporosis. Neither impairment by itself substantially limits a major life activity. Together, however, these impairments significantly restrict her ability to lift and perform manual tasks. She has a disability under the ADA.

References: TAM I-2.2(a):
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Substantially Limits: Additional considerations

The Supreme Court issued a trio of rulings in 1999 that held that the determination of whether a limitation exists or is substantial must take into account the use of any "mitigating measures," such as assistive devices, medications or compensating behaviors. With the passage of the ADA Amendment Acts of 2008, this determination now disregards the use of any mitigating measures with the exception of ordinary eyeglasses or contact lenses.

Example: A person who has epilepsy takes medication that greatly reduces or eliminates seizure activity. If he experiences limitations in his major life activities without the use of the medication, he may have a disability under the ADA.

Example: A person who wears eyeglasses to correct his near-sightedness. The glasses correct his vision to the point where he is not substantially limited in the major life activity of seeing. These eyeglasses must be considered and his visual impairment would not be considered a disability.An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Examples: Allergies, cancer, seizure disorder.Temporary impairments may or may not be disabilities under the ADA. How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment substantially limits one or more major life activities. This question is answered by looking at the extent, duration and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and that have little or no long term impact usually are not disabilities.
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Major Life Activities

In order for a disability to be covered by the ADA, an impairment must substantially limit one or more major life activities that an average person can perform with little or no difficulty. Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

A major life activity also includes the operation of a major bodily function such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
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Record of Such an Impairment

This part of the definition protects people who have a history of a disability from discrimination, whether or not they are currently substantially limited in a major life activity. It protects people with a history of cancer, heart disease or other debilitating illness, whose illness is either cured, controlled or in remission, as well as those with a history of mental illness.This part of the definition also protects people who may have been misclassified or misdiagnosed as having a disability, such as a person who may at one time have been erroneously classified as having mental retardation or a learning disability. If an employer relies on any record containing this information, such as an educational, medical or employment record, to make an adverse employment decision and the candidate is currently qualified to perform a job, the action is subject to challenge as a discriminatory practice.

Example:

A job applicant was a patient at a state institution when she was very young was misdiagnosed as being psychopathic. This misdiagnosis was never removed from her records. If this person is qualified for a job and an employer does not hire her based on this record, the employer has violated the ADA.

A person who has a learning disability applies for a job as secretary/receptionist. The employer reviews records from a previous employer indicating that he was labeled as "mentally retarded." Even though the person's résumé shows that he meets all requirements for the job, the employer does not interview him because he doesn't want to hire a person who has mental retardation. This employer has violated the ADA.Individuals suffering from drug addiction that substantially limits major life activities are also protection by the ADA. However, if an individual had a record of casual drug use, he or she would not be protected by the ADA. Casual drug use, as opposed to addiction, does not substantially limit a major life activity.

Example:

A job applicant was hospitalized for treatment for cocaine addiction several years ago. He has been successfully rehabilitated and has not engaged in the illegal use of drugs since receiving treatment. This applicant has a record of an impairment that substantially limited his major life activities. If he is qualified to perform a job, it would be discriminatory to reject him based on the record of his former addiction.

To be protected by the ADA under this part of the definition, a person must have a record of a physical or mental impairment that substantially limits one or more major life activities. A person would not be protected, for example, merely because he or she has a record of being a disabled veteran or a record of disability under another federal statute or program unless this person also met the ADA definition of an individual with a record of a disability.

References: TAM I-2.2(b)
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Regarded as Having Such an Impairment

An individual is protected under this part of the definition if he or she can show that he was discriminated against because of an actual or perceived impairment, regardless of whether the impairment actually limits or is perceived to limit a major life activity. However, impairments that are minor or transitory (less than 6 months) do not fall under this definition. Further, covered entities are not required to provide reasonable accommodations or modifications to people who are regarded by others as having disabilities.This part of the definition of disability protects people who are perceived as having disabilities from discriminatory decisions based on stereotypes, fears, or misconceptions about the disability. Such protection is necessary because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments."
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Exclusions

A person who currently illegally uses drugs is not protected by the ADA as an individual with a disability when the covered entity acts on the basis of such use. However, an individual who is engaged in or has completed drug rehabilitation and is no longer illegally using drugs is protected under the ADA.Homosexuality and bisexuality are not impairments and therefore are not covered by the ADA.

The act also states that the term disability does not include the following sexual and behavioral disorders: transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders; compulsive gambling, kleptomania or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.

References: TAM I-2.2(a), TAM II-2.3000, TAM III-2.3000
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Qualified Individual With a Disability - Title I

To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified for the position. An employer is not required to hire or retain an individual who is not qualified to perform a job. The regulations define a qualified individual with a disability as a person with a disability who: "satisfies the requisite work, experience, education and other job-related requirements of the employment position such individual holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such a position."

There are two basic steps in determining whether an individual is qualified under the ADA:

1. Determine if the individual meets necessary prerequisites for the job, such as:

· Education.

· Skills.

· Experience.

· Licenses.

· Training.

· Certificates.

· Job-related requirements, such as good judgment or ability to work with other people.

2. Identify the essential functions of the job.Consider whether the person with a disability can perform these functions, unaided or with a reasonable accommodation.

The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job.

Reference: TAM I-2.3
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Qualified Individual With a Disability

Protections under Title II and Title III are afforded to qualified individuals with disabilities. Not every person with a disability is necessarily qualified.

For the purpose of determining eligibility for participation in services and programs offered by a public or private entity, a person with a disability is considered to be qualified if the individual meets the essential eligibility requirements with or without:

· Reasonable modifications to rules, policies or practices.

· Auxiliary (communications) aids or services.

· Removal of architectural, communications or transportation barriers.

The essential eligibility requirements for participation in many activities may be minimal.

Example:

Most public and private entities provide information about their programs, activities and services upon request. In such situations the only eligibility requirement for receipt of such information would be the request of it.

However, under other circumstances, the essential eligibility requirements imposed by a public entity may be quite stringent.

Example:

A medical school may require those admitted to its programs to have successfully completed specified undergraduate science courses.

References: TAM II-2.8000, 28 CFR 36.301
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Association

Public and private entities may not discriminate against an individual or entity because of the known disability of a person with whom the individual or entity has a relationship.

Examples:A county recreation center may not refuse admission to a summer camp program to a child whose brother has tuberculosis.A local government may not refuse to allow a theater company to use a school auditorium on the grounds that the company has recently performed at a hospice for people with HIV.

References: 29 CFR 1630.8, 28 CFR 35.130(g), 28 CFR 36.205
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Retaliation or Coercion

Individuals who exercise their rights under the ADA or individuals who assist others in exercising their rights are protected against retaliation or coercion, including threats, intimidation or interference.

Examples:

A private individual harasses an individual who is blind in an effort to prevent him from attending a concert in a state park. The individual has violated the ADA.A state tax official delays a tax refund for an individual because she testified in a Title II grievance proceeding involving inaccessibility of the tax office. The state has illegally retaliated against the individual.A restaurant may not refuse to serve a customer because he or she filed an ADA complaint against the restaurant.

Reference: TAM II-3.11000, TAM III-3.6000

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