The Potential Impact of the Americans with Disabilities Act on Individuals with Disease
July 20th, 2009 | Imani Webb-Smith
After years of trying to amend the Americans with Disabilities Act of 1990 (ADA
(http://www.eeoc.gov/types/ada.html) to make it more inclusive, in January, the ADA Amendments Act of 2008 (ADAA) (http://www.ada.gov/pubs/ada.htm) went into effect. The ADAA makes it illegal for private employers, state and local governments, employment agencies and labor unions to discriminate against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.
In an attempt to make it easier to bring disability discrimination claims under the ADA, the amendment emphasizes that the definition of disability should be broadly interpreted. The Workplace Fairness website has been updated to reflect the changes made to the ADA, at our site’s disability discrimination page: (http://www.workplacefairness.org/disability).
An important component of the ADAA directed the EEOC to make new, broader, and more inclusive regulations to the original act. The effects of this, for the most part, remain to be seen, and will not be fully known until more disability discrimination cases are litigated under the Amendments. However, it is clear that the amendments’ intent will allow for a larger number of affected people to successfully bring forth disability discrimination claims.
The Act’s original intent was to protect those who “[have] a physical or mental impairment that substantially limits one or more major life activities of such an individual.” Since the Act’s inception, this portion of the regulation had been interpreted quite narrowly. In Sutton et al. v. United Air Lines, Inc. (http://www.law.cornell.edu/supct/html/97-1943.ZS.html), the Supreme Court held that
“mitigating measures” used by an employee must be taken into consideration in determining whether one has a disability under the ADA. The Court determined that petitioners, applicants for jobs as airline pilots with uncorrected vision of 20/200, did not qualify as “disabled” under the ADA because the use of mitigating measures (in this case, eyeglasses) could alleviate their poor vision. In Murphy v. United Parcel Service (http://www.law.cornell.edu/supct/html/97-1992.ZS.html), the Court upheld the termination of the plaintiff whom suffered from hypertension because if medicated, Murphy’s hypertension was controlled. Because none of the plaintiffs in either case suffered from physical limitations when using the mitigating measures, they were not determined to be individuals with disabilities.
The amendments direct the EEOC to clarify and expand the definition of substantially limiting impairment. Under the amendments, these criteria are to be interpreted more broadly. Not only are most activities that were previously recognized under the law included (walking, seeing, etc.), but major bodily functions (normal cell growth, bowel, bladder, reproductive functions, and more) are now recognized as “major life activities.” The implications of this are potentially quite sweeping, as diseases which may not have qualified for protection previously may be granted it now. The ADAA does not expressly provide a definition for what constitutes a “major life activity,” but the ADAA unequivocally rejects the notion that major life activities should be limited to those activities which have “central importance” to an individual’s day to day life. People with health issues, such as reproductive disorders or heart disease may now be deemed disabled and, as such, be awarded the protections of the ADA.http://www.advocacyinc.org/index.cfm), properly notes that the draft regulations
would “appear to establish any type of diabetes are a disability,” as the impairments of diabetes affect certain normal life activities. Some examples of this are diabetes affecting functions of the endocrine system, such as insulin production. East notes, “consistent with the ADA Amendments Act’s plain language, the proposed rule says that the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall not be considered in determining whether an impairment is substantially limiting. Examples in the proposed rule show how this principle would apply to individuals with a variety of impairments, such as diabetes that requires the use of insulin.” Attorney Brian East of Advocacy, Inc (
The new EEOC regulation’s effect will likely be that people with diseases will be held to have a disability under the ADA. In an attempt to broaden protection for individuals with disabilities, some will likely maintain that the new EEOC regulations are overly broad and will result in increased frivolous litigation. It is more likely, however, that the new regulations will simply make it more difficult for employers to successfully discriminate against employees with disabilities, which honors the original intent of the Americans with Disabilities Act.
Imani Webb-Smith: Imani Webb-Smith is a Legal Intern with Workplace Fairness where she writes and edits content on a variety of labor and employment issues. She is currently in her second year at American University’s Washington College of Law.
Related Posts:
Tags: ADA, ADAA, Disability Discrimination, Imani Webb-Smith
July 20th, 2009 at 3:49 pm
I had a Lupus flair last Sept; was hospitalized 2 weeks; returned to work 1/2 time in mid Oct, 3/4 in Nov,and full time in Jan. Despite working 28 yrs in the same private school and only having one previous week-long absence due to Lupus, my dept. chair has demoted me. Instead of me teaching advanced classes she has assigned me to lower level classes because she fears that i might flair again. Is this legal?
July 27th, 2009 at 9:23 pm
Suzanne,
This is not legal advice, of course, and there are lots of questions that would need to be answered before being able to say that this is illegal. But following up on Imani’s article above, if the decision to reassign you took place on or after 1/1/2009, the amended ADA should apply, and I do think that lupus is typically going to be a disability under the amended ADA. (It may also qualify as a disability under the pre-2009 ADA, too, but that is a more difficult analysis; likewise, your rights under state law may vary substantially.)
If it IS a disability under the law, and if they admit they took the action against you because of your lupus, then another thing to consider is whether you can perform the essential functions of your original position, with or without reasonable accommodations.
A third thing to think about is whether the new teaching assignment is considered a demotion (in terms of pay, prestige, chances of advancement, etc.).
These are just SOME of the considerations. You should probably talk to a lawyer who is familiar with the ADA to fully understand your rights, and the possible remedies.
Brian
July 28th, 2009 at 11:15 pm
employee performs maintenance at a hospital. He has a history of heart disease and lung cancer. The job requires manual labor such as mowing, minor repairs, etc. He was asked to mow a courtyard with a push mower. He was not happy about the assignment. He went to his physician and got her to send a letter that now only allows him to do light duty work. For example: only lift ten pounds, working outside is limited only during certain temperatures. His forty hours of possible work is now down to twelve hours. He basically cannot perform his job responsibilities. If he is terminated, can he use the ADA act to fight his termination?
November 12th, 2009 at 3:34 pm
My 26 year old son has hypertension and neurological damage from childhood. Would these be covered under ADAA?