Who is considered disabled under the ADA?

There are three definitions of an “individual with a disability” under the ADA:

  1. Actual disability, physical or mental impairment that substantially limits one or more major life activities – The following have been determined by courts to be a “major life activity”: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, operation of primary bodily functions (immune system, unique sense organs and skin, normal cell grown, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive), and working.  Before a 2008 amendment, it was a relatively high burden for employees to show that they were disabled, and many ADA cases were dismissed with a finding by the court that, while the plaintiff had some impairment, it was not severe enough to substantially impair a significant life activity.  This placed ADA plaintiffs in a conundrum.  They had to seek to maximize the severity of their impairment to be considered disabled, but if they painted themselves as too impaired, they risked being deemed too impaired to be qualified for the job.   The 2009 amendments clarified that Congress intended to make the definition of “qualified individual with a disability” inclusive instead of exclusive, thereby decreasing the threshold for finding a person disabled and consequently increasing the pool of employees who are impaired enough to be considered “disabled” yet not so impaired as to be considered unqualified for the job.  The bottom line is that ADA cases are easier for employees to pursue than they once were.
  1. Record of a disability – A person who has a record of an actual disability, as identified above, enjoys ADA protection.  In other words, a person can be considered disabled under the ADA even if that person is completely healthy but used to have an actual disability.  An example is a cancer survivor whose cancer is in complete remission.
  1. “Regarded as” having a disability – Individuals are protected under the ADA if they are regarded as having a disability, even if they have no actual impairment.  An example is a person with significant scarring such that an employer perceives that the employee has some actual physical impairment.  It is illegal for an employer to discriminate against such an employee based on that perception. Assuming the individual in question has some impairment, which almost always will result in the Court finding a disability, an employer must determine whether the employee can perform the “essential functions” of the job with or without reasonable accommodation.

Under federal law, a job’s “essential functions” are “the fundamental job duties of the employment position the individual with the disability holds or desires.” 29 CFR § 1630.2(h)(1). Typically, an employer identifies the essential functions of a job and can prove this through written job descriptions and any other proof that establishes the duties associated with a particular job.

Are all disabled individuals protected under the ADA?

No.  To enjoy ADA protection, an employee must be qualified for the job despite the disability.  Under the ADA, a person is considered qualified for the job if they can perform the “essential functions” of the job, either with or without an accommodation. What constitutes the job’s essential functions will vary from job to job.  The regulations define “essential functions” as “the fundamental job duties” of the position.  To provide an obvious example, an essential function of a delivery driver is the ability to drive.  If an individual is medically unable to drive, an employer can exclude that person from consideration for the job.  On the other hand, another job might involve driving once or twice a month.  For that job, driving might not be an “essential function.”  In such a case, an employer is probably obligated to give the employee equal consideration for the job and provide accommodations (such as a driver or an exemption from travel) that would allow the employee to perform the essential functions of the job.  The EEOC has issued guidance on the issue of reasonable accommodations

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The information herein is not legal advice. The information is in the form of legal education and is intended to provide general information about the matter discussed.  The above is not, nor is it intended to be, legal advice and does not create an attorney/client relationship.