WHEN IS A DISABILITY A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT?

WHEN IS A DISABILITY A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT?
by Randi Klein Hyatt

An individual with epilepsy applies for employment with a messenger service company. Without her medication, the individual experiences seizures that substantially limit her ability to walk and to drive. When she takes her medication, however, her seizures are under control with minimal side effects and she can engage in all major life activities, including walking and driving. Is this person an individual with a disability under the Americans with Disabilities Act of 1990 ("ADA")? Before June 1999, courts disagreed on the answer. The Supreme Court, however, with a series of decisions in June 1999, resolved the conflict.

In Sutton v. United Air Lines, Inc., twin sisters, with uncorrected vision of 20/200 or worse, applied with a major commercial airline carrier for employment as commercial airline pilots. Both have corrected vision of 20/20 or better. They were rejected for employment as soon as the employer learned that each did not meet its minimum requirements of uncorrected vision of 20/100 or better.

In Murphy v. United Parcel Service, Inc., a mechanic with correctable high blood pressure worked for UPS. Department of Transportation regulations prohibit commercial vehicle certification if a person, among other things, has a clinical diagnosis of high blood pressure likely to interfere with the ability to operate a commercial vehicle safely. Murphy erroneously was granted certification. Once UPS discovered the error it fired Murphy on the belief his high blood pressure exceed DOT's requirements.

In Albertson's, Inc. v. Kirkingburg, Kirkingburg was hired for a truck driver's job, but before beginning work, was examined to see if he met the DOT's basic vision standards for commercial truck drivers. Kirkingburg has an uncorrectable condition that leaves him with 20/200 vision in his left eye. His doctor erroneously certified the he met the DOT standards. Once Albertson's learned of his vision, it fired him for failing to meet the DOT vision standards and refused to rehire him after he received a DOT waiver.

The three Supreme Court decisions explain in detail when an individual with a medical condition or impairment is actually an individual with a disability under the ADA. The decisions make clear that a person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that substantially limits a major life activity, and therefore, is not disabled under the ADA. In other words, if an individual has a medical condition which is corrected by mitigating measures that individual still has an impairment, but because the impairment is corrected it does not "substantially limit" a major life activity. In so holding, the Supreme Court has rejected the Equal Employment Opportunity Commission's interpretive guidelines which state that determination of whether a person is substantially limited in a major life activity must be made without regard to mitigating measures.

So what does this mean? In determining whether an individual with an impairment has a disability under the ADA, the effects of all corrective measures (both positive and negative) must be taken into account and cannot be disregarded. Therefore, the epileptic applicant referred to above is not an individual with a disability because, in her medicated state, she is not substantially limited in any major life activity. If, however, in her medicated state she still experienced seizures that prevented her from driving, she would be an individual with a disability under the ADA.

Although these Supreme Court decision have narrowed the class of individuals who can claim they are individuals with disabilities, an employer still must be careful not to maintain stereotypic assumptions about an individual with an impairment. The ADA prohibits employment discrimination against qualified individuals with a disability and defines a disability as either (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (B) a record of such impairment, or (C) being "regarded as" having such impairment. Therefore, although a person whose impairment is corrected by mitigating measures may not be "disabled" within the meaning of the ADA, if a company perceives the individual as disabled, that individual is still entitled to ADA protection. In other words, if an employer mistakenly believes that a person's actual nonlimiting impairment substantially limits one or more major life activities, the person is "regarded as" disabled within the meaning of the ADA.

Therefore, if the epileptic applicant, in her medicated state, is not substantially limited in any major life activity, but the messenger service company refuses to hire her because it assumes that her seizures may interfere with her ability to drive a delivery truck, the applicant may be able to prove she was "regarded as" having a disability, and therefore, covered by the ADA.

Legally speaking, the Supreme Court has set appropriate limits on who should be protected under the ADA and has restricted the group of individuals likely to be successful with an ADA claim. Practically speaking, however, the decisions should not change the manner in which you, as the employer, comply with the employment provisions of the ADA. For example:

Do not pursue lines of inquiry based on past illnesses, injuries, accidents, hospitalizations, treatments, workers' compensation claims, or medical insurance claims.
Direct inquiries about specific disabilities are prohibited. Do not ask "are you dyslexic?" or "do you have epilepsy?"
Do inquire into problems that an applicant foresees in performing her job. Never ask, however, whether a person has a disability that would prevent the performance of essential job functions. Phrasing the questions differently will elicit the information you need without violating the ADA. Thus, an employer may state, "This job requires X, can you perform X with or without reasonable accommodation?"
You may inquire about an applicant's ability to perform both essential and marginal job functions. Never ask generally whether "reasonable accommodation" is necessary without linking the inquiry to a specific job function.
You may inquire whether individuals have the required certifications and/or licenses necessary to perform a specific job. Thus, a trucking company may ask applicants whether they have the required certifications needed to drive trucks on interstate highways. Employers may also ask why applicants do not have particular certifications or licenses.
Inquiries about impairments are not prohibited by the ADA because impairments are disabilities only if they substantially limit one or more major life activities. Thus, an employer may ask an applicant how she broke her arm or her leg. Such an inquiry only focuses on the manner in which the limb was broken and is not likely to disclose whether the applicant has a disability. The employer, however, may not then go on to ask how extensive the break was, or whether the applicant will have full use of the limb in the future.
Inquiries about the ability to perform "major life activities" and about "substantial limitations of major life activities" such as, "Can you stand?", or, "Can you walk?", are likely to elicit information about disabilities and should be avoided. Note, however, that if the question relates to a specific job duty such as the ability to lift a 70-pound load, the inquiry is permissible.

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WHEN IS A DISABILITY A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT? by Randi Klein Hyatt

WHEN IS A DISABILITY A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT?
by Randi Klein Hyatt