The Definition of Disability Under the ADA and §504

The two principal federal laws protecting persons with disabilities are the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Both laws share the same definition of disability.

II. The Definition

A. Three Prongs

A disability is defined as (1) a mental or physical impairment that substantially limits one or more major life activities (sometimes called an actual, or present, disability); or (2) a record of a mental or physical impairment that substantially limits one or more major life activities (sometimes referred to as a history of a disability); or (3) being "regarded as" having a mental or physical impairment that substantially limits one or more major life activities (also called a perceived disability). 42 U.S.C. § 12102(2) (ADA); 29 U.S.C. §§ 705(9)(B) and 705(20)(B) (Rehabilitation Act).

B. Three Elements

The definition of an actual disability thus has three elements: (a) impairment; (b) major life activity; and (c) substantial limitation. None of these elements of the definition are themselves defined by the ADA, but there is a fair amount of guidance for interpreting them.

C. Guidelines for Interpretation

The first source of guidance is the federal regulations promulgated under § 504. The Supreme Court has said that these regulations are entitled to deference. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, ___ U.S. ___, 122 S.Ct. 681, 689 (2002). While each agency has issued its own set of regulations under § 504, the "coordinating regulations" are found at 45 C.F.R. § 84.3.

A second source of guidance is the federal regulations designed to enforce the ADA. These include the rules promulgated by the EEOC to enforce Title I of the ADA (29 C.F.R. Part 1630), the rules promulgated by the Department of Justice to enforce Title II of the ADA (28 C.F.R. Part 35), and the rules promulgated by the Department of Justice to enforce Title III of the ADA (28 C.F.R. Part 36). The Supreme Court has not decided exactly what deference to give to these ADA regulations. Compare Toyota, supra, 122 S.Ct. at 689 (refusing to decide regarding the Title I regulations); Olmstead v. L.C., 527 U.S. 581, 598 (1999) (agency views regarding Title II "warrant respect"); Bragdon v. Abbott, 524 U.S. 624, 642 (1998) ("the well-reasoned views of the agencies implementing a statute [Title III] ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'"). But the ADA regulations are frequently followed by the lower courts.

III. Impairment

The definition of impairment is the same under all of the regulations. It means (1) 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; or (2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h) (ADA Title I); 28 C.F.R. § 35.104 (ADA Title II); 28 C.F.R. § 36.104 (ADA Title III); 45 C.F.R. § 84.3(j)(2)(i) (Rehabilitation Act).

Impairment is clearly a broad term. Even correctable nearsightedness is an impairment. Sutton v. United Air Lines, Inc., 527 U.S. 471, 490 (1999). Advocates should therefore consider every diagnosis or condition that the client has.

On the other hand, one of the most common errors in attempting prove a disability is to mistake diagnosis for disability. At most, a diagnosis merely shows an impairment. It does not reflect whether that impairment substantially limits a major life activity. This point is clearly made in Toyota, in which the Court repeated its earlier holdings that the existence of a disability is to be determined in a case-by-case manner. The Court found that such an individualized assessment of the effect of an impairment is particularly necessary when the impairment is one with symptoms that vary widely from person to person, like carpal tunnel syndrome. Thus a carpal tunnel syndrome diagnosis, on its own, does not indicate whether the individual has a disability within the meaning of the ADA. Toyota, supra, 122 S.Ct. at 691-692

IV. Major Life Activities

The next question that must be answered is what are "major life activities." Again, there is no definition in the ADA or the Rehabilitation Act, Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 614 (5th Cir. 2001), but the term is defined in the EEOC's Title I regulations, and in the earlier regulations under the old Rehabilitation Act, e.g., 45 C.F.R. § 84.3(j)(1) and (2). The latter regulations are persuasive in interpreting the ADA. Toyota, supra, 122 S.Ct. at 689. Although the Supreme Court continues to resist expressing its opinion on the amount of deference (if any) to be given to the Title I regulations, Id., the Fifth Circuit generally follows them, Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001), noting that the EEOC guidelines, while not controlling, "do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Id. at n.18. In any event, the definitions of major life activities are the same under both sets of regulations.

The EEOC defines major life activities as "those basic activities that the average person in the general population can perform with little or no difficulty." 29 C.F.R. pt. 1630 App. § 1630.2(i). According to the EEOC, they include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The activities listed in the regulation are meant to be illustrative, not exhaustive. Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 613 n.3 (5th Cir. 2001); 29 C.F.R. pt. 1630 App. § 1630.2(i).

Fifth Circuit precedent indicates that the word "major" means comparative importance, and suggests that the touchstone for determining whether something is a major life activity is its significance. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 654 (5th Cir. 1999), quoting Bragdon v. Abbott, 524 U.S. 624, 638 (1998). The Supreme Court's recent analysis is consistent. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, ___ U.S. ___, 122 S.Ct. 681, 691 (2002) ("‘Major' in the phrase ‘major life activities' means important."). The Fifth Circuit also suggests looking at whether the activity is necessary for self-sustenance or to support a family; provides the opportunity for self-expression and for contribution to productive society; involves some degree of social interaction; is an important element in how individuals define themselves and are perceived by others; or provides an opportunity for many of the significant experiences of life. EEOC v. R.J. Gallagher Co., supra, 181 F.3d at 654-655.

The Supreme Court has stated that major life activities are not limited to those aspects of a person's life that have a public, economic, or daily character. Bragdon v. Abbott, 524 U.S. 624, 638-639 (1998). Nor are major life activities limited to those activities that everyone experiences (in Bragdon, the Court held that reproduction is a major life activity, even though many people do not experience it), and they do not "turn on personal choice." Bragdon, supra, 524 U.S. at 641.

In Toyota, on the other hand, the Court held that performing manual tasks can be a major life activity, but only if the manual tasks in question are "central to daily life." Toyota, supra, 122 S.Ct. at 691. Stated another way, to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most peoples' daily lives. The Court also stated that some of the manual tasks to look at are those involving personal hygiene (like tooth brushing and bathing) and personal or household chores.

There seems to be a tension between this decision and the Supreme Court's earlier pronouncement in Bragdon v. Abbott, 524 U.S. 624, 638 (1998), that reproduction is a major life activity, and "[n]othing in the definition suggests that activities without a ... daily dimension" cannot be "major."

It may be that the Court is distinguishing between different kinds of major life activities. On the one hand are those life activities that it calls "basic abilities," like walking, seeing, and hearing. These do not require a showing of their affect on daily life. On the other hand are those activities (like performing manual tasks) for which such a showing must be made. The difference is explained by the fact that "performing manual tasks" is really a collection of various activities, some of which are important and some of which are not. The Court came up with its own test for selecting which tasks are important enough to consider a major life activity.

It may also be that the Court is drawing a different distinction, requiring that all activities be "central to daily life" in order to qualify as major life activities, but even though central to daily life, they need not be performed daily.

Case law around the country has variously included the following in the list of major life activities: caring for oneself, bathing, dressing, toileting, controlling bowels, waste elimination, sleeping, getting into or out of bed, getting around outside, getting around inside, keeping house, living independently, eating, drinking, cooking, using stairs, sitting, standing, reaching, throwing, squatting, bending, lifting, carrying, performing manual tasks, walking, running, seeing, hearing, speaking, breathing, reading, writing, thinking, learning, concentrating, reproducing or bearing children, sexual activities, working, attending school, traveling, and interacting with others. See also Sutton v. United Air Lines, Inc., 527 U.S. 471, 485 (1999), relying on studies listing a variety of major life activities.

In the Fifth Circuit (and in most courts to consider the question), working is recognized as a major life activity, EEOC v. R.J. Gallagher Co., supra, 181 F.3d at 654-655, despite the Supreme Court's reservations in Sutton. Working is generally seen as the activity "of last resort," however, not just because it was questioned in Sutton, but because there is a difficult burden with regard to substantial limitation in working. See part VI below. Compare Mason v. United Air Lines, Inc., 274 F.3d 314 (5th Cir. 2001) (plaintiff had limitations in pushing, pulling, and lifting, but only alleged a limitation in working).

V. Substantial Limitations

Neither the ADA nor the Rehabilitation Act define "substantially limits," Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 614 (5th Cir. 2001), nor do the Rehabilitation Act regulations that were given deference in Toyota. The EEOC's Title I regulations, however, do define the term. As suggested above, while the Supreme Court has not expressed its view on the deference due those regulations, Toyota, supra, 122 S.Ct. at 689, the Fifth Circuit follows the EEOC guidance on this point. See, e.g., Dupre, supra, 242 F.3d at 614.

"Substantial" means considerable or to a large degree. Toyota, supra, 122 S.Ct. at 691. Clearly, an impairment substantially limits a major life activity if, as a result of the impairment, the individual is unable to perform the major life activity. 29 C.F.R. § 1630.2(j), cited in Pryor v. Trane Co., 138 F.3d 1024, 1025 (5th Cir. 1998). But substantial limitations need not rise to the level of "utter inabilities." Bragdon v. Abbott, 524 U.S. 624, 641 (1998).

The Title I regulations define a substantial limitation as (1) the inability to perform a major life activity that the average person in the general population can perform; or (2) being significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). According to the regulations, the following factors should be considered in determining whether an individual is substantially limited in a major life activity: the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). The EEOC has published some sample questions to consider in analyzing this issue. Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(III) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

An impairment's impact need not be permanent to be a disability under the ADA, as long as it is "long-term." Toyota Motor Manufacturing, supra, 122 S.Ct. at 691. If the impairment is severe, and its duration is indefinite or expected to last several months, it may constitute a disability. EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>; Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134 (D. Hawaii 1999) (fact that plaintiff's lung cancer went into remission after four months did not render condition "temporary" and unprotected because the substantial limitation determination considers not only duration, but nature and severity, and the court could not conclude that as a matter of law, life-threatening cancer is not a disability if it is life-threatening for "only" four months); Potvin v. Champlain Cable Corp., 687 A.2d 95, 98 (Vt. 1996) (impairment that lasted for at least five months and was the result of a long-term illness that required three separate surgeries was not too fleeting to be covered under state law that adopted the ADA's definition of disability).

Nor does a condition need to produce continuous symptoms, or even visible ones, in order to constitute a disability. Bragdon v. Abbott, 524 U.S. 624 (1998). Chronic conditions that are substantially limiting impairments when active, and conditions that are highly likely to recur in substantially limiting forms, are also disabilities. Taylor v. Phoenixville School District, 184 F.3d 296, 308-309 (3d Cir. 1999) (claim not defeated by fact that plaintiff did not experience problems every day; court recognized that chronic, episodic conditions can easily limit how well a person performs an activity as compared to the rest of the population, since repeated flare-ups of poor health can have a cumulative weight that wears down a person's resolve and continually breaks apart longer-term projects); EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>.

Moreover, certainty of consequences is not required. See, e.g., Erjavac v. Holy Family Health Plus, 13 F. Supp. 2d 737, 743 (N.D. Ill. 1998), citing Bragdon v. Abbott; Berk v. Bates Advertising USA, Inc., 25 F. Supp. 2d 265, 269 (S.D. N.Y. 1998). If there is a significant risk of adverse effects on a major life activity, and it remains even after mitigating measures, the person may still have a substantial limitation. Bragdon v. Abbott, 524 U.S. 624, 639-640 (1998) (finding the evidence that medication could reduce the risk of perinatal HIV transmission from about 25% to 8% did not mean that plaintiff was not substantially limited in the major life activity of reproduction).

On the other hand, conditions that last for only a few days or weeks, and that have no permanent or long-term effect, generally are not seen as substantially limiting impairments. Blanton v. Winston Printing Co., 868 F. Supp. 804 (M.D. N.C. 1984). For example, if the only limitation remaining after a short leave of absence is the need to attend six monthly therapy sessions, there may not be a substantial limitation. EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655 (5th Cir. 1999). And common colds, most broken bones, and sprains requiring some bed rest and possibly even hospitalization, but without permanent injury, do not constitute a substantial impairment. 29 C.F.R. pt. 1630 App. § 1630.2(j); EEOC Compliance Manual § 902.4(d), online at <http://www.eeoc.gov/docs/902cm.html>.

Note, too, that in assessing whether an impairment is substantially limiting, the focus should not be on all of the things that the person can do, but rather on those activities that he or she cannot do, or is substantially limited in doing. Otherwise, for example, the ADA would be "inapplicable to those individuals most likely to have the capacity to perform various jobs capably if provided with reasonable accommodations." Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1038-1039 (D. Ariz. 1999). See also Belk v. Southwestern Bell, 194 F.3d 946, 950 (8th Cir. 1999) (finding the plaintiff had a disability, notwithstanding the employer's litany of all of the activities that the plaintiff could do).

An individual with two or more impairments that are not, by themselves, substantially limiting, but that taken together substantially limit one or more major life activities, has a disability. 29 C.F.R. pt. 1630 App. § 1630.2(j); EEOC Compliance Manual § 902.4(e), online at <http://www.eeoc.gov/docs/902cm.html>. Likewise, if a person uses two or more mitigating measures, and the side effects of each are not substantially limiting by themselves, the negative effects of all the mitigating measures together may substantially limit one or more major life activities. They may also be substantially limiting when viewed in combination with the residual effects of incomplete mitigation. See Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(IV)(B) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

In Toyota, the Supreme Court held that "the Court of Appeals did not apply the proper standard in making this determination because it analyzed only a limited class of manual tasks and failed to ask whether respondents impairments prevented or restricted her from performing tasks that are of central importance to most peoples daily lives."

The Court also found that, contrary to the standards used to interpret other civil rights statutes, the ADA terms substantial limitation and major life activity "need to be interpreted strictly to create a demanding standard for qualifying as disabled." This, they found, was required by the legislative findings that some 43 million Americans have one or more physical or mental disabilities. The Court found that "[i]f Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher." The fear, of course, is that this "strict interpretation" language may be used to justify all kinds of decisions narrowing the scope of the ADA in ways contrary to Congressional intent.

In the end, the Court did not decide whether the plaintiff had a disability or not, but instead sent the case back to the lower courts to determine that issue. It did give a little more guidance, though. First, it said that the inability to do "repetitive work with hands and arms extended at or above shoulder levels for extended periods of time" in a specialized assembly line job is not sufficient proof of a disability. Second, it suggested that the plaintiff's other limitations--that she had to avoid sweeping, quit dancing, occasionally seek help dressing, and reduce how often she played with her children, gardened, and drove long distances--might show a disability, but do not automatically show one.

VI. Substantial Limitations in Working

A substantial limitation in working has been interpreted as requiring a showing that the person is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Aldrup v. Caldera, 274 F.3d 282, 286-287 (5th Cir. 2001). "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i), cited in Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999); Dupre, supra, 242 F.3d at 614; Aldrup, supra, 274 F.3d at 287 (depression caused by "the stress and anxiety of having to work with certain employees" merely shows an inability to work at one specific location, and is not evidence of a general inability to perform a class of jobs).

According to the EEOC regulations, the following factors may be considered in determining whether an individual is substantially limited in the major life activity of working: the geographical area to which the individual has reasonable access; the job from which the individual has been disqualified, and the number and types of jobs utilizing similar training, knowledge, skills or abilities from which the individual is also disqualified (class of jobs); and/or the number and types of other jobs not utilizing similar training, knowledge, skills or abilities from which the individual is also disqualified (broad range of jobs in various classes). 29 C.F.R. § 1630.2(j)(3)(ii).

Although the EEOC and a few courts have stated that the evidentiary burden on the plaintiff (to show the number and types of jobs precluded) is supposed to be minimal, 29 C.F.R. pt. 1630 App. § 1630.2(j); Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 12 (1st Cir. 1999), that is not the way most courts have analyzed substantial limitations in working. For example, Plaintiff's testimony that she was unable to perform any manual labor, citing only digging holes or repairing railroad track as examples, was insufficient evidence to show that she was disqualified from all manual labor. Dupre, supra, 242 F.3d at 614-615.

Many employment discrimination cases under the ADA are lost because the only life activity that the person alleged was affected was working. But a claim of disability discrimination, even disability discrimination in employment, may be based on a limitation in activities other than working, because a person may have a disability under the ADA without any limitation in working whatsoever. Toyota, supra, 122 S.Ct. at 693. See also the amicus brief filed by the United States in Toyota, and apparently relied on by the Supreme Court in its analysis. 2001 WL 747852, at *19 (June 29, 2001) ("It would be perverse to suggest that individuals substantially limited in some other major life activity could be deprived of Title I protection because work-related functions are not impaired.").

On the other hand, it is clearly possible to show a substantial limitation in working. In order to do so, however, the use of a vocational expert is strongly recommended, and such testimony must be more than a simple conclusion without other support. Aldrup, supra, 274 F.3d at 287. The testimony should describe the impact of the disability on the life activity of working, identify the class or broad range of jobs affected, and describe how they are affected.

VII. Mitigating Measures

The Supreme Court has held that corrective or "mitigating" measures must be considered in determining whether a person has a disability under the ADA. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). Such mitigating measures may include devices (such as eyeglasses), Sutton, medications, Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521 (1999), or even the body's own internal compensations, Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565-566 (1999). Although the Court's interpretation in Sutton narrows the class of persons protected by the ADA, it is still possible to prevail.

Sutton commands that the focus be on what is ("the present indicative tense," to use the court's language), not on what might, could, or should be. Sutton, supra, 527 U.S. at 482; Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037 (D. Ariz. 1999); Nawrot v. CPC Int'l, 277 F.3d 896, 904 (7th Cir. 2002) (Sutton is not "license for courts to meander in ‘would, could, or should-have' land."). This focus has several results.

First, disability is gauged at the time of the discriminatory action or request for accommodation. Cash v. Smith, 231 F.3d 1301, 1306 n.5 (11th Cir. 2000); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884 (6th Cir. 1996); Leicht v. Hawaiian Airlines, Inc., 77 F. Supp. 2d 1134, 1147 (D. Hawaii 1999). See also the EEOC Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified" (Background section) (EEOC 7/26/99), <http://www.eeoc.gov/docs/field-ada.html>. Note, however, that evidence of abilities at a later date may still be relevant to the issue of the plaintiff's abilities at the time of the discriminatory action. Swanson v. University of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001).

Second, past mitigation does not matter, if the plaintiff is not currently using mitigating measures and has a substantial limitation of a major life activity. Compare Finical, supra, 65 F. Supp. 2d at 1037-1038 (employer cited the testimony of Plaintiff's expert, who said he thought the plaintiff "would benefit from hearing aids;" the argument was rejected because, regardless of the doctor's opinion, the plaintiff did not use them; she had tried them in the past, but they picked up background noise).

Third, speculating about "possible" mitigating measures in the future is precluded by Sutton. Employers should not be able to claim that a person does not have a disability because they choose not to use mitigating measures. Finical, supra, 65 F. Supp. 2d at 1037-1038; Capizzi v. County of Placer, 135 F. Supp. 2d 1105, 1113 (E.D. Cal. 2001) ("The conclusion that a failure to mitigate does not defeat the cause of action is supported by Sutton ... [and it] should follow from the fact that the question of disability addresses plaintiff's current condition, that the fact that a particular procedure would mitigate the condition cannot prevent a finding that the plaintiff is presently disabled"); Nawrot v. CPC Int'l, 277 F.3d 896, 904 (7th Cir. 2002) (courts should consider only those mitigating measures actually taken; those who discriminate take their victims as they find them). See also Saks v. Franklin Covey Co., 117 F.Supp.2d 318 (fact that fertility treatment existed was irrelevant, because no treatment had been successful to date for the plaintiff).

This reading is also consistent with the Supreme Court's statement that "the disability definition does not turn on personal choice." Bragdon v. Abbott, 524 U.S. 624, 641 (1998). While mitigating measures may limit the extent to which an impairment is disabling, a personal choice to limit activities in order to minimize the impairment's effects should not cause a plaintiff to lose the act's protection.

There is contrary authority, however. See Tangires v. Johns Hopkins Hospital, 2000 U.S. Dist. LEXIS 142*23-24 (D. Md. 2000) (asthma did not substantially limit any major life activity since it was correctable by steroidal medication, even though plaintiff refused to take the medication due to her subjective and unsubstantiated belief about adverse effects). Tangires has been called "a perverse stretch of Sutton." Van Detta & Gallipeau, Judges and Juries: Why Are So Many ADA Plaintiffs Losing Summary Judgment Motions, and Would They Fare Better Before a Jury?, 19 Rev. Litig. 505, 520 n.36 (Summer 2000).

Note that an employee may have a disability if the employer prevents the use of mitigating measures that might control the symptoms of an impairment. Davis v. Utah State Tax Commission, 96 F. Supp. 2d 1271, 1287 (D. Utah 2000).

It is also important to understand that not everything used to compensate for an impairment is a mitigating measure. Reasonable accommodations are not mitigating measures. Finical, supra, 65 F. Supp. 2d at 1037-1038 and n.4. Furthermore, some assistive measures do not improve the ability to engage in major life activities. For example, lip-reading and telephone lights do not mitigate a person's deafness, because although they improve that person's ability to communicate, they do not improve the ability to hear. Id. at 1041-1042. In another example, the court noted that it would not take into account those measures that did not affect an applicant's ability to perform the major life activity of reading, such as having other people read to her, or participating in study groups. Bartlett v. New York State Bd. of Law Examiners, 2001 WL 930792, at *31-35 (S.D.N.Y. Aug. 15, 2001). Likewise, the use of a wheelchair may improve a person's mobility without improving a person's ability to walk. Sutton v. United Air Lines, Inc., 527 U.S. 471, 488 (1999).

Finally, remember that Sutton requires that the negative effects of mitigating measures must also be considered, such as the side effects of medications. Sutton, supra, 527 U.S. at 482. See also Belk v. Southwestern Bell, 194 F.3d 946 (8th Cir. 1999) (although customer service representative with residual effects of polio could walk using a leg brace, he remained substantially limited in walking, since his range of motion was limited by the brace, his gait was hampered by a pronounced limp; the court found these considerations were consistent with the language in Sutton directing courts to consider the negative side effects of mitigating measures); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 781 (6th Cir. 1998); Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051, 1052 (7th Cir. 1997), cert denied, 118 S.Ct. 1304 (1998) (although treatment of condition that is not itself disabling may result in disability, there was no such evidence here); Bartlett, supra, 2001 WL 930792, at *35-36; Guice-Mills v. Derwinski, 967 F.2d 794, 796-797 (2d Cir. 1992) (nurse on sedatives for depression found disabled under Rehabilitation Act); Dees v. Austin-Travis County Dept. of Mental Health & Mental Retardation, 860 F. Supp. 1186, 1189 (W.D. Tex 1994) (ability of person with mental illness to work was limited by medication's side effects); Fehr v. McLean Packaging Corp., 860 F. Supp. 198, 200 (E.D. Pa. 1994). In Taylor v. Phoenixville School District, 184 F.3d 296, 308-309 (3d Cir. 1999), for example, the court noted that therapeutic levels of lithium can cause a number of side effects, some of which, like the nausea the plaintiff complained of, indirectly affect the ability to think, while others, such as impaired concentration and memory problems, bear directly on thinking. Since the plaintiff's problems at work may have been related to these drug side effects, summary judgement for the employer was reversed.

Clearly, then, a persons may have a disability despite the use of mitigating measures. See, e.g., McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999) (finding a genuine issue of material fact as to whether, even with medication and other treatment, the plaintiff's mental impairment substantially limited his major life activities of sleeping and engaging in sexual relations); Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) (secretary's ongoing symptoms of bipolar disorder, coupled with the side effects of her medication, raised a fact issue as to whether she was substantially limited in thinking); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032 (D. Ariz. 1999) (finding sufficient evidence for a reasonable jury to conclude that the employee was substantially limited in the major life activity of hearing, even taking into account the use of several compensating measures).

The EEOC has suggested other examples of mitigating measures that only partially control the symptoms or limitations, as well as questions to ask in analyzing this issue. Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (First Definition)(III) (EEOC 7/26/99), online at <http://www.eeoc.gov/docs/field-ada.html>.

VIII. Proof

A. Medical and Expert Evidence

To assess accurately whether a person has a disability, it is important to understand the condition or disease. Strong consideration should be given to using medical experts, vocational experts (particularly if a limitation in the life activity of working is claimed), and organizations with expertise, e.g., the American Diabetes Association, the Bazelon Center for Mental Health Law, and the Epilepsy Foundation, etc.

Many persons with impairments have lost their cases in court because of an inadequate explanation of their substantial limitations. For some examples of cases with a sufficiently detailed explanation, see Lawson v. CSX Transportation, Inc., 245 F.3d 916 (7th Cir. 2001) (evidence described in detail what it means to have to manage diabetes), and Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (2d Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999), aff'd on remand, 226 F.3d 69 (2d Cir. 2000). See also Nawrot v. CPC Int'l, 277 F.3d 896 (7th Cir. 2002) (reflecting amicus help from the P&A).

B. Comparative Evidence

Advocates should also consider introducing evidence of the comparative ability of the average person with regard to the major life activity at issue. See EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 439 (7th Cir. 2000) (reversing summary judgment for the employer, but noting that "evidence of how [plaintiff's] impairment limited her ability to walk in comparison to the average member of the population . . ., if not required, is certainly helpful"). But such comparative evidence does not always seem necessary. Compare PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 1885-1886 and 1887 n.17 (2001) (disability was not contested on appeal, but the Supreme Court noted that Martin had a disability because his degenerative circulatory disorder caused severe pain and prevented him from walking an 18-hole golf course that is 5 miles in length); D'Amato v. Long Island Railroad Co., 2001 WL 563569 (S.D.N.Y. May 24, 2001) (inability to walk more than 50-100 feet is enough evidence of a substantial limitation in walking to go to the jury).

C. Social Security Evidence

Note, too, that Social Security determinations of disability, while not dispositive, "can be relevant and significant evidence in showing that a disability exists for ADA purposes." Lawson v. CSX Transportation, Inc., 245 F.3d 916, 927 (7th Cir. 2001). Applications for such disability benefits can also pose an obstacle to ADA Title I claims, however. See Giles v. General Elec. Co., 245 F.3d 474, 483-485 (5th Cir. 2001), regarding the defense of "judicial estoppel."

D. Analysis Must Be Individualized

Disability must be assessed on a case-by-case basis. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, ___ U.S. ___, 122 S.Ct. 681, 691-692 (2002); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). Compare the Fifth Circuit opinions in Kapche v. City of San Antonio, 176 F.3d 840 (5th Cir. 1999), and Gonzales v. City of New Braunfels, 176 F.3d 834 (5th Cir. 1999), which decline to rule that per se exceptions to the individualized inquiry requirement are insupportable, but clearly indicate that the court regards such exceptions with increasing disfavor.

After Sutton, courts should not rely on the outcome in other cases involving similar impairments, but must analyze each case on its own facts. McGinnis v. Alamo Community College Dist., 207 F.3d 276 (5th Cir. 2000); Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 13 (1st Cir. 1999) (court found unpersuasive other decisions rejecting disability claims by persons with the same diagnosis, because of the individualized analysis required); Durrant v. Chemical/Chase Bank/Manhattan Bank, N.A., 81 F. Supp. 2d 518, 520 (S.D. N.Y. 2000) (similar); Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1040 (D. Ariz. 1999) (similar).

Some employers have contended that they should not be held liable for discriminatory actions if they based their decisions on an "honest," though mistaken, belief that the employee was not a qualified individual with a disability. But in such cases, the "key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action," and it is therefore improper to use the so-called "honest belief" defense in such a way that it "credits an employer's belief without requiring that it be reasonably based on particularized facts." Lowe v. Alabama Power, 244 F.3d 1305, 1308 (11th Cir. 2001), citing Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). See also Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) (employer violated ADA in rejecting applicant with HIV disease based on medical exam that was not sufficiently individualized and had no objective medical or scientific support).

IX. Record of a Disability

To prove a record of a disability, the plaintiff must show not only that he or she has a record of an injury or impairment, but the evidence must also show that the impairment substantially limited a major life activity. Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 615 (5th Cir. 2001). A record with only a "vague mention of the existence and treatment" of a back problem, and that did not indicate whether or how this problem substantially limited any major life activity, was insufficient. Id.

A record of a disability can be established in various ways. See, e.g., Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 (7th Cir. 1998) (diagnosis alone is insufficient to establish record of disability; plaintiff must show records reflecting substantial limitation in major life activity, and that employer was aware of this history; here, plaintiff with attention deficit disorder produced sufficient evidence to defeat summary judgment); Pritchard v. Southern Co. Services, 92 F.3d 1130, 1134 (11th Cir. 1996), modified on other grounds, 102 F.3d 1118 (11th Cir. 1996) (use of paid disability leave may be record of impairment); Wheaton v. Ogden Newspapers, Inc., 1999 U.S. Dist. LEXIS 15841 (N.D. Iowa 1999) (multiple hospitalizations and ongoing treatments for severe and permanent back condition could constitute a "record of" disability); Murray v. Surgical Specialties Corp., 1999 U.S. Dist. LEXIS 277*14-15 (E.D. Pa. 1999) (plaintiff presented employer with a variety of documents evidencing various restrictions, creating a fact issue); Mark v. Burke Rehabilitation Hospital, 1997 U.S. Dist. LEXIS 5159 (S.D. N.Y. 1997) (plaintiff had a record of impairment based on employer's awareness that plaintiff had been hospitalized for cancer surgery).

X. Regarded As Having a Disability

A person is regarded as having a disability if (a) the person does not have an impairment, but is mistakenly regarded as having an impairment that substantially limits a major life activity, Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); (b) has an impairment that is not in fact substantially limiting, but which is mistakenly regarded as substantially limiting, Id.; or (c) has an impairment that is substantially limiting simply because of the attitudes of others toward the impairment. School Bd. of Nassau County v. Arline, 480 U.S. 273, 283 (1987) (decided under the Rehabilitation Act); Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir. 1998) (citing 29 C.F.R. § 1630.2(l)); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884-885 (6th Cir. 1996) (citing 29 C.F.R. pt. 1630 App. § 1630.2(l); Rolff v. Interim Personnel, Inc., 1999 U.S. Dist. LEXIS 18096*13-17 (E.D. Mo. 1999) (the ADA is also designed to protect people from the problems stemming from the public's unfamiliarity with and insensitivity to the difficulties confronting those with disabilities); 45 C.F.R. § 84.3(j)(2)(iv)(B) (Rehabilitation Act). Note that a person claiming discriminatory attitudes may need to put on evidence of such attitudinal barriers. Deas v. River West, LP, 152 F.3d 471, 478 n. 16 (5th Cir. 1998).

It is critical to understand that an employer does not necessarily regard an employee as having a substantially limiting impairment simply because it believes the employee is incapable of performing a particular job. Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 616 (5th Cir. 2001).

There are numerous examples in the case law of evidence sufficient to raise a fact question of perceived disability. In the Fifth Circuit, they include McGinnis v. Alamo Community College Dist., 207 F.3d 276 (5th Cir. 2000) (perceived disability shown by statements of employer's ADA coordinator, and by past transfer admittedly given as an "accommodation"); and EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999) (company president with blood cancer demoted to vice-president with 50% pay cut; fact issue existed regarding perceived disability; it is not necessary to have "some obvious specific handicap" to fall into perceived disability category; employer's offer of another job often rebuts a claim of perceived disability, but jury could have believed that "offer" here was designed to force the plaintiff to quit).

On the other hand, the Fifth Circuit found insufficient evidence of a perceived disability in Dupre, supra, 242 F.3d at 616 (plaintiff was not in fact substantially limited in any major life activity and nothing in the record indicates that the employer's perception of her condition was in any way inaccurate; even assuming that employer thought plaintiff's condition would cause her to be absent, there is no evidence that employer thought plaintiff was unable to perform other jobs).

Other courts have recognized the following as evidence of perceived disabilities: statements by the employer; the employer's awareness of past medical history; evidence of prejudice or of concern about third parties' prejudices; the employer's opinion that the plaintiff suffers from a specific condition, which, if true, would disqualify the plaintiff from the occupation; concern about the employee's worker's compensation history or concern about the affect an employee may have on insurance premiums; offering or providing accommodations, reassignment, disability benefits, light duty, or medical leave to an employee; stereotypes about a non-disabling condition; the employer's past experience with other employees having similar diagnoses; the employer's failure to distinguish between a disability and a lack of qualifications; the use of a corrective hearing device; reliance on medical leave; reliance on medical reports reflecting a serious impairment; failure to consider an employee for other jobs; and employer action based on genetic characteristics. See also Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222 (9th Cir.) (evidence included employer's refusal to consider plaintiff for several different maintenance and groundskeeping jobs, and its "100% healed" policy), cert. denied, ___ U.S. ___, 122 S.Ct. 645 (2001).

Pretext evidence can also help to establish a perceived disability. Johnson v. Paradise Valley Unified Sch. Dist., supra, 251 F.3d at 1228-1229; Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) (evidence that the employer created a pretextual reason for firing may tend to prove that it regarded the employee as a persons with a disability).

Other ways to establish such a claim are suggested in the Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," Part One (Third Definition)(I-III) (EEOC 7/26/99), <http://www.eeoc.gov/docs/field-ada.html>.

Note that merely referring an employee for a medical evaluation or monitoring may not be evidence of a perceived disability. Krocka v. City of Chicago, 203 F.3d 507, 514 (7th Cir. 2000); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810-811 (6th Cir. 1999), cert denied, 530 U.S. 1262 (2000); McConnell v. Pioneer Hi-Bred Int'l, Inc., 2000 U.S. Dist. LEXIS 3335*23 (D. S.D. 2000) (employer "should not be punished for . . . seeking to eliminate any misperceptions" about the plaintiff's abilities). But compare Tice v. Centre Area Transportation Authority, 247 F.3d 506, 515-516 (3d Cir. 2001) (such evaluations may be illegal if they are too broad in scope, or if there is no reasonable basis for requesting one).

XI. ADA Protection for Persons Without Disabilities

The ADA may protect persons without any kind of disability in certain circumstance.

A. Retaliation

The ADA states that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act." 42 U.S.C. § 12203(a). A person need not be a "qualified individual with a disability." Mondzelewski v. Pathmark Stores, Inc., 162 F.3d at 778 (3d Cir. 1998); Matthews v. American States Ins. Co., 1997 U.S. Dist. LEXIS 19256*4-5 (D. Kan. 1997); EEOC Compliance Manual, Section 8-I(B), at n.7 (May 20, 1998), online at <http://www.eeoc.gov/docs/retal.html>. See also Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (elements of retaliation claim set out; they do not include disability). Compare Talanda v. KFC Nat. Management Co., 140 F.3d 1090 (7th Cir.), cert denied, 525 U.S. 869 (1998) (plaintiff must show reasonable good faith belief that he had a disability and was entitled to accommodation; no such showing here).

B. Association

The ADA also prohibits discrimination, even against a person without a disability, because of an association or relationship with a person with a disability. 42 U.S.C. §§ 12112(b)(4); 29 C.F.R. § 1630.8 (Title I); 28 C.F.R. § 35.130(g) (Title II); 28 C.F.R. § 36.205 (Title III). See also Saladin v. Turner, 936 F. Supp. 1571, 1580-1581 (N.D. Okla. 1996); Gower v. Wrenn Handling, Inc., 892 F. Supp. 724 (M.D. N.C. 1995); Padilla v. Buffalo State College, 958 F. Supp. 124 (W.D. N.Y. 1997); LeCompte v. Freeport-McMoran, 1995 U.S. Dist. LEXIS 3509 (E.D. La. 1995).

C. Inquiries and Exams

1. Preemployment Inquiries

The ADA prohibits a prospective employer from inquiring, verbally or in writing, about an applicant's health or disability before offering a position to that applicant. 42 U.S.C. § 12112(d)(2); 29 C.F.R.§ 1630.13. Most courts hold that a prospective employee need not be a person with a disability in order to have a claim based on preemployment inquiries, Mack v. Johnstown America Corp., 1999 WL 304276 (W.D. Pa. 1999), although the employee must be able to show some tangible injury to recover damages. Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998) (plaintiff must show questions caused harm to recover damages, and must show standing for equitable relief).

2. Examination and Inquiry of Employees

Employer may require a medical examination and/or inquiry of an employee only if the inquiry or examination is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c). This statutory provision protects all current employees, whether or not they are persons with a disability. Cossette v. Minnesota Power & Light, 188 F.3d 964, 969-970 (8th Cir. 1999) and cases cited.

XII. State Laws

Most states have laws of one sort or another purporting to protect people with disabilities from discrimination. These laws vary in their definitions and coverage. An analysis of the variations is beyond the scope of this paper, but the laws are summarized online at <http://www.protectionandadvocacy.com/176065sh.htm>. Some examples of the differences in definitions in state employment discrimination laws include:

Arkansas: the definition is similar, but does not cover persons with a record of a disability, persons regarded as having a disability, or persons with alcoholism. Ark. Stat. § 16-123-102(3).

Louisiana: the definition is similar, but does not cover persons with a current mental illness, alcoholism, "cosmetic disfigurement," or "anatomical loss of body systems." La. Stat. § 46:2253; La. Stat. § 23:322.

New Mexico: the definition is similar, but also covers persons with a "serious medical condition."

Oklahoma: the definition is similar. Okla. Stat. Title 25 § 1301(4).

Texas: the definition is similar, but does not cover persons with alcoholism. Tex. Labor Code § 21.002(6).

Although the ADA provides a "floor" of protection to people with disabilities, it does not invalidate or limit the remedies, rights, and procedures of any state or local law that provides greater or equal protection for the rights of individuals with disabilities. 42 U.S.C. § 12201(b). Many states have laws that provide more protection than the ADA. See, e.g., Hazeldine v. Beverage Media, 954 F. Supp. 697, 706-707 (S.D. N.Y. 1997); Olson v. General Elec. Astrospace, 966 F. Supp. 312, 314-315 (D. N.J. 1997) (New Jersey law, unlike the ADA, has no "major life activities" element); Natural Motion v. DCCHR, 687 A.2d 215 (D.C. App. 1997) (statute prohibits discrimination on basis of appearance).

California recently revised the definitions in its principal state law prohibiting disability discrimination, when it passed California Assembly Bill (AB) 2222. Under current California law, mitigating measures are not considered in assessing disability; an impairment only needs to limit a major life activity (and need not be substantially limiting); certain major life activities are specified; and certain conditions are listed as disabilities. For a further discussion of the differences between California law and the ADA, see <http://www.jan.wvu.edu/corner/vol01iss08.htm>.

Other states have interpreted their laws differently from the way in which the ADA has been interpreted, even when the statutory language is similar. Compare Dahill v. Police Dept. of Boston, 748 N.E.2d 956 (Mass. 2001) (holding that the Massachusetts antidiscrimination statute did not require consideration of mitigating or corrective devices in determining whether a person had a disability).

Independent Living Research Utilization

The Definition of Disability Under the ADA and §504

Southwest Disability and Business Technical Assistance Center Webcast Seminar

Southwest Disability and Business Technical Assistance Center
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