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Americans with Disabilities Act  (ADA)

III.  What Is "Discrimination" Under the ADA?

"Discrimination" means that an employer does not give equal treatment to an employee because of his or her disability.

Refusing to make "reasonable accommodations" (reasonable changes to policies and procedures that do not cause "undue hardship" to the employer) for a person with a disability is discrimination.

Employers covered by the ADA have to make sure that people with disabilities:

  • have an equal opportunity to apply for jobs and to work in jobs for which they are qualified;
  • have an equal opportunity to be promoted once they are working;
  • have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and
  • are not harassed because of their disability.

IV.  Do I Have a "Disability" Under the ADA?

There are two parts to the meaning of "disability." A person must have:

  • a "physical or mental impairment," or a history of an impairment, or be "regarded" as having an impairment,
       - and -
  • that impairment must "substantially limit" one or more "major life activities."

What kinds of psychiatric conditions are considered "mental impairments" under the ADA?
A "mental impairment" includes most kinds of mental or psychological disorders, such as major depression, bipolar disorder, anxiety disorders, panic disorders, obsessive disorders, post-traumatic stress disorder, schizophrenia, and personality disorders.

A person who regularly has appointments with a medical professional because of a psychiatric disability or who has regularly seen someone in the past over a period of at least six months has a "mental impairment."

What are "major life activities"?
Examples of major life activities include

  • caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working;
  • sitting, standing, lifting, and mental and emotional processes such as thinking, concentrating, and interacting with others.

Major life activities do not include:

  • caring for others, climbing, heavy lifting, performing repetitive motions, and grocery shopping.

ADAAA Changes:
Before the ADAAA, some court cases found that a person needed to be substantially limited in more than one life activity to be disabled under the ADA.

  • The ADAAA lists:
    • seeing, hearing, eating, sleeping, walking, learning and concentrating;
    • major bodily functions including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions;
  • The ADAAA also says that a "disability" may exist even if only one major life activity is limited.

A person is "substantially limited" in an activity if either:

  • The person cannot do the activity at all.
  • Compared to the average person in the general population, the person cannot do the activity very well, or cannot do the activity in the same amount of time as the average person takes, or needs different conditions to do the activity than the average person.

To be substantially impaired in the activity of working, the person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, compared to an average person with similar training, skills, and abilities.

Short-term or temporary impairments usually are not considered to be "substantially limiting." However, if the temporary impairment does substantially limit a major life activity, it is covered by Title II. The issue of whether a temporary impairment is significant enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.

What does "regarded as" having a disability mean?
An individual is regarded as having a substantially limiting impairment if he or she:

  • has an impairment that does not substantially limit major life activities, but the employer treats the impairment as a substantial limitation,
  • has an impairment that substantially limits major life activities only because of others' attitudes toward the impairment,
       - or -
  • has no impairment but is treated by an employer as if he or she had a substantially limiting impairment.

An employer regards an individual as having an impairment that substantially limits the major life activity of working if it treats the individual as having an impairment that disqualifies or significantly restricts the individual from working in a class of jobs or a broad range of jobs in various classes.

Example:  An employer refuses to hire a person who lists a psychiatric hospital as one of her past employers, because the employer believes this means the person had or has a mental illness. This is illegal.

Under the ADAAA:
An individual can show that he is covered as a person "regarded as" having a disability if he can prove that he was discriminated against (as defined by the ADA) because of actual OR perceived impairment (as long as the impairment is not minor or transitory).

Can an employer consider the effect of medications or other treatments that reduce the limits on life activities?
Under the ADAAA, except for eyeglasses or contact lens, any "mitigating measures" that reduce limitations on major life activities cannot be taken into account in deciding if a person has a disability.

Example:  A person with schizophrenia takes a medication that helps the person to concentrate. Without the medication, the person is still substantially limited in concentrating. He or she is still a "person with a disability."

Are co-occurring disorders (such as addictions) considered disabilities?
An employer cannot discriminate against a person who is substantially limited in one or more life activities because of past addiction to drugs or alcohol as long as the person is in recovery. Recovery here means receiving treatment successfully rehabilitated (no longer using or abusing).

An employer may refuse to hire a person, or may fire a person, who uses drugs or alcohol on the job or who uses illegal drugs while not on the job.

"Drugs" do not include over-the-counter medications or medications prescribed by a health professional when used following the directions.

NextWhat Is "A Qualified Individual?"

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