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AMERICANS WITH DISABILITIES ACT: WHO'S COVERED

The ADA protects qualified individuals with disabilities from employment discrimination. Under other laws that prohibit employment discrimination, it usually is a simple matter to know whether an individual is covered because of his or her race, color, sex, national origin, or age. But to know whether an individual is covered by the employment provisions of the ADA can be more complicated. It is first necessary to understand the Act's very specific definitions of "disability" and "qualified individual with a disability." Like other determinations under the ADA, deciding who is a "qualified" individual is a case-by-case process, depending on the circumstances of the particular employment situation.

The ADA has a three-part definition of "disability." This definition, based on the definition under the Rehabilitation Act, reflects the specific types of discrimination people with disabilities experience. Accordingly, it is not the same as the definition of disability in other 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 activity, generally coupled with a record of such an impairment.

The first part of this definition has three major subparts that further define who is and who is not protected by the ADA. A physical impairment is defined 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, genito-urinary, hemic and lymphatic, skin, and endocrine.

A mental impairment is defined 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 EEOC regulations lists all diseases that make up "physical or mental impairments" because it would be impossible to provide a comprehensive list, given the variety of possible impairments.

A person's impairment is determined without regard to any medication or assisting device that he or she may use. For example, a person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg would be considered to have an impairment, even if the medicine or prosthesis reduces the impact of that impairment.

An impairment under the ADA is a physiological or mental disorder; simple physical characteristics, therefore, such as eye color, left-handedness, or height or weight within a normal range, are not impairments. A physical condition or a predisposition to a certain disease would not be considered to be an impairment. Similarly, personality traits such as poor judgment, quick temper, or irresponsible behavior, are not impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record, are not impairments. For 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. But a person who cannot read because he or she dropped out of school does not qualify under such standards.

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. A person suffering from general stress because of 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 a disability.

A person who suffers from a contagious disease has an impairment. For example, infection with the Human Immunodeficiency Virus (HIV) is an impairment. The Supreme Court has ruled that an individual with tuberculosis, affecting the respiratory system, has an impairment. However, although a person who has a contagious disease may be covered by the ADA, an employer would not have to hire or retain a person whose contagious disease posed a direct threat to health or safety, if no reasonable accommodations could reduce or eliminate this threat.

To be a disability 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 include walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself, sitting, lifting, reading, and working. An individual must be unable to perform such tasks compared to an average person in the general population.

The regulations provide three factors to consider in determining whether a person's impairment substantially limits a major life activity: its nature and severity, how long it will last or is expected to last, and its impact, long-term impact, or expected impact. These factors must be considered because, generally, it is not the name 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, whereas many other impairments may be disabling for some but not for others.

Although cerebral palsy frequently restricts major activities such as walking, speaking, and performing manual tasks, an individual with a very mild condition who can speak and perform other activities is not an individual with a disability under this part of the definition.

The determination as to whether an individual is substantially limited must always be based on the effect of an impairment on that individual's life activities. Consider an individual who had been employed as a receptionist and sustained a back injury that resulted in considerable pain. The pain permanently restricted his or her ability to walk, sit, stand, drive, care for his or her home, and engage in recreational activities. Another person who had been employed as a general laborer had sustained a back injury but was able to continue an active life. The first individual would likely be found to possess a disability while the second would not.

Sometimes, a person may have two or more impairments, neither of which by itself substantially limits activities, but together have a significant effect. For example, a person could have a mild form of arthritis in her wrists and a mild form of osteoporosis in her hands. Neither impairment by itself poses a major problem, but together, can limit her ability to lift and perform manual tasks. Under the ADA, the woman would be considered someone with a disability.

Employers frequently ask whether "temporary disabilities" are covered by the ADA. The length of time an impairment lasts is a factor to consider, but does not by itself determine whether a person qualifies as having a disability; the alteration on one's life is generally the determining factor. Looking at the extent, duration, and impact of the impairment are principal issues to consider. Temporary, non-chronic impairments that do not last for a long time and that have little or no long term impacts are not disabilities. Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be considered disabilities. A broken leg that heals normally within a few months, for example, would not qualify. However, if a broken leg took significantly longer than the normal healing period to heal, and during this period the person was unable to walk, he or she would be considered to have a disability. Or, if the leg did not heal properly and resulted in a permanent impairment that significantly restricted walking or other deeds, he or she would be considered to have a disability.

It is not necessary to consider if a person is substantially limited in the workforce if the person is limited in other areas. If a person suffers from vision or hearing limitations, there is no need to consider whether or not the person is also limited in working. In general, a person will not be considered limited in working if he or she is substantially limited in performing only a particular job for a particular employer, or in a specialized field. For example, a person who cannot qualify as a commercial airline pilot because of a minor vision impairment, but who could qualify as a co-pilot or a pilot for a courier service, would not consider substantially limited. Similarly, a baseball pitcher who develops a bad elbow and can no longer pitch would not be limited in working.

However, a person need not be totally unable to work in order to be considered under the ADA, just significantly less than the average person. The regulations provide factors to help determine whether a person is substantially limited in working. These include: the type of job from which the individual has been disqualified; the geographical area in which the person may reasonably expect to find a job; the number and types of jobs using similar training, knowledge, skill, or abilities from which the individual is disqualified within the geographical area; and the number and types of other jobs in the region that do not involve similar training, knowledge, skill, or abilities from which the individual also is disqualified because of the impairment.

A person would be considered significantly restricted in a "class of jobs" if a back condition prevents him or her from working in any laboring job. A person would be considered significantly limited in the ability to perform "a broad range of jobs in various classes" if he or she has an allergy that caused extreme difficulty in breathing to a common substance found in most high-rise office buildings in the geographic area in which he or she could reasonably seek work. By contrast, a person who has a severe allergy to a substance in the particular office in which he or she works, but who is able to work in other offices that do not contain this substance, he or she would not be significantly restricted in working.

Consider a computer programmer who develops a vision impairment that does not limit her ability to see, but because of poor contrast, is unable to distinguish print on computer screens. Her impairment prevents her from working as a computer operator, programmer, instructor, or systems analyst. Thus, she is substantially limited in working because her impairment prevents her from working in the class of jobs requiring usage of a computer.

In assessing the "number" of jobs from which a person might be excluded by impairment, the regulations make clear that it is only necessary to indicate an approximate number of jobs from which a person would be excluded (such as "few," "many," "most"), compared to an average person with similar training, skills, and abilities.

A person who regularly uses illegal drugs is not protected by the ADA, as an "individual with a disability," when an employer acts on the basis of such use. However, former drug addicts who have been successfully rehabilitated may be protected by the Act.

Homosexuality and bisexuality are not impairments of any kind and therefore are not disabilities covered by the ADA. The Act also states that the term "disability" does not include the following: transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, and gender identity disorders not resulting from physical impairments. Behavioral disorders are also excluded, such as compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.

The discussion so far has focused on the first part of the definition of an "individual with a disability," which protects people who currently have an impairment that substantially limits a major life activity. The second and third parts of the definition protect people who may or may not actually have such an impairment, but who may be subject to discrimination because they have a record of or are regarded as having such an impairment.

This part of the definition protects people who have a history of a disability from discrimination, whether or not they currently substantially limited in a major life activity. It protects people with a history of cancer, heart disease, or other debilitating illness, whose illnesses are either cured, controlled, or in remission.

In addition, this section of the ADA protects people who may have been misclassified or misdiagnosed as having a disability. These people have a record of a disability, and if an employer relies on any record (such as educational, medical, or employment), such information could cause someone to be erroneously disqualified from a job.

Employers should make considerable efforts to respect ADA protections. For example, consider a person who has a learning disability applies for a job as a receptionist. The employer reviews records from a previous employer indicating that the candidate was labeled as "mentally retarded." Even though the person's resume shows that he/she meets all requirements for the job, the employer does not interview him/her because he doesn't want to hire a person with mental retardation. This employer had violated the ADA.

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. If he is qualified to perform the job to which he is applying, it would be discriminatory to reject him based on the record of his former addiction.

In the last example above, the individual was protected by the ADA because his drug addiction was an impairment that significantly limited his lifestyle. However, if an individual had a record of casual drug use as opposed to addiction, he/she would not be protected. In addition, a person would not be protected merely because he or she has a record of being a "disabled veteran," or had a record of "disability" under another federal statute or program; he/she must also meet the ADA definition to qualify.

People who are simply perceived to have a disability are also protected. Such a protection is necessary because, as the Supreme Court has stated and 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."

The legislative history of the ADA indicates that Congress intended this part of the definition to protect people from a range of discriminatory actions based on "myths, fears, and stereotypes" about disabilities, which occur even when a person does not have a substantially limiting impairment.

As individual may be protected under this part of the definition in three circumstances:

1. The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment; if an employee has controlled high blood pressure which does not substantially limit his or her work activities; if an employer reassigns the individual to a less strenuous job because of an unsubstantiated fear that the person will suffer a heart attack if he/she continues in the present job.

2. The person has an impairment that is substantially limiting because of attitudes of others towards the condition. For example, an experienced assistant manager of a convenience store who had a permanent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk because he felt that customers and venders would not want to look at the other man. The employer discriminated against him on the basis of presupposed disability, thus treating him as a person with a substantial limitation.

3. The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment. An employer discharges an employee based on a rumor that he/she had HIV. The rumor was false, but he/she was treated as though he/she had the disease.

This part of the definition protects people who are "perceived" as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disabilities. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs, or acceptance by co-workers and customers.

Ray Charles Issue 1995

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Interview with Ray Charles

Interview with Ellen Stohl and Hugh Hefner

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