Title I of the Americans with Disabilities Act of 1990 (the ADA) prohibits employment discrimination against individuals with "disabilities." Its purpose is to allow qualified employees with disabilities the same employment opportunities that are available to people without disabilities and to provide such individuals with legal redress. The most		fundamental question an employer can ask regarding this statute is, "Are any of my employees covered?" If so, an employer may be liable for discrimination if an employee is terminated because of a disability, or the employer may be required to provide the employee with "reasonable accommodation."

The Standards Overview
The ADA protects "qualified individuals with a disability." So to qualify for relief under the ADA employees must establish that they are (1) "qualified" in the sense that with or without a reasonable accommodation they are able to perform the essential functions of the position, and (2) "disabled" as defined by the statute.

"Disability" is defined under the ADA as:

1. a physical or mental impairment that substantially limits one or more of the major life activities of an individual (emphasis added);
   
   
2. a record of such an impairment; or
   
   
3. being regarded as having such an impairment.

Thus, under subsection (1), there is a three-step process to determine whether an employee is disabled within the meaning of the statute: (i) does the employee have an "impairment" that (ii) affects a "major life activity", that (iii) "substantially limits" that activity? In addition, and somewhat quixotically, an employee may be covered if he or she has a "record of" or is "regarded as" having an impairment that substantially limits a major life activity.

"Impairment"
The term "impairment" includes a broad range of physiological conditions and mental disorders, including retardation, emotional or mental illness, and specific learning disabilities. It does not include physical characteristics such as height or weight, pregnancy, or predispositions to illness or disease. An interesting case concerning the predisposition to illness provision occurred in 1994. Ms. Sidney Abbott, an asymptomatic HIV positive woman, visited her dentist for a routine examination. During the exam the dentist discovered a cavity and informed Ms. Abbott that he would only fill the cavity outside of his office and at a hospital because she was HIV positive. She refused this proposal and filed suit under Title III of the ADA, which prohibits discrimination on the basis of a "disability" in public accommodations. In 1998, the Supreme Court determined in Bragdon v. Abbott that, even in the absence of any symptoms, an HIV infection meets the definition of "impairment."

Generally, temporary impairments are not covered under the ADA. For instance, pregnancy is specifically excluded from coverage. Likewise, a broken bone or short illness would also be excluded. But conditions that flare up at times while lying dormant at others may be covered. Thus, based on the Abbott rationale, a circuit court recently held that a nurse who suffered from an extreme form of psoriasis that flared-up for the first time in eight years had an "impairment" under the ADA. Apparently, employees ultimately have a very low hurdle to cross on this issue.

"Major Life Activity"
After finding that an employee has an "impairment," the next step is to determine whether the impairment limits a "major life activity." The Equal Employment Opportunity Commission (EEOC), the agency that implements Title I of the ADA, defines the term to include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. "Reproduction," is also considered a major life activity, at least for adults, since Bragdon v. Abbott. In addition, other courts have held that eating, sleeping, and engaging in sexual relations are all major life activities.

Courts generally have little difficulty finding that the above listed activities are major life activities. But when an employee attempts to tailor an asserted major life activity to conveniently fit his particular facts, courts generally reject the claim. For instance, "everyday mobility" was rejected as a major life activity for an employee suffering from "panic disorder with agoraphobia." Likewise, lifting more than 45 pounds, doing yard work, and shoveling snow have all been rejected as major life activities. The bottom line for employers is that they should ascertain exactly what activity an employee claims he is limited in doing. If the claimed activity fits into the EEOC's listed activities, the employee may likely have cited a "major life activity."

"Substantial Limitation" and Mitigation
After finding that the employee has an impairment that affects a major life activity, an employer should determine whether the impairment "substantially limits" the major life activity. The EEOC defines this term to mean, "totally or significantly restricted in ability to perform a major life activity in comparison with the average person in the general population." Factors to consider include: (1) the nature and severity of the impairment; (2) the duration of impairment; and (3) any permanent or long-term impact resulting from impairment.

The Supreme Court has determined that "mitigating measures" must be taken into consideration when making the "substantially limited" determination. In Sutton v. United Airlines (1999), twin sisters with myopia were refused positions as airline pilots because of their vision impairments. Myopia was an "impairment" and it limited the "major life activity" of seeing. But did it "substantially" limit that activity? The Court held that the "substantially limits" determination required consideration of their vision problem with their corrective glasses—a mitigating measure. Wearing glasses brought their vision close to that of the average person in the general population, thus, they were not substantially impaired. Likewise, a mechanic who suffered from hypertension and high blood pressure that he controlled with medication was not substantially limited and, therefore, not disabled. In the end, an employee cannot simply state the name of a disease or impairment she suffers from as evidence of a substantial limitation. Rather, she must provide specific examples of substantial limitations in her own life even with the
mitigating measures in place.

"Regarded as" or "Record of"
The above three elements account for "actual" disabilities. As stated earlier, there are two other methods of proving a "disability." An employee may claim that he is "regarded as" or has a "record of" an impairment that substantially limits a major life activity.

Under the ADA, being "regarded as" having an impairment that substantially limits a major life activity constitutes a disability just as if the employee had an actual disability. This may occur in two situations: first, where an employer mistakenly believes the employee to have an impairment that substantially limits a major life activity; second, where an employer mistakenly believes that an actual, nonlimiting impairment substantially limits a major life activity. Thus, an employer's actions that indicate it believes an employee suffers from the requisite impairment, regardless of whether he truly does, may suffice to prove a "disability" and bring the employee under the protection of the statute.

An employee may also prove he is "disabled" by simply having a "record of" an impairment that substantially limits a major life activity. But the employee must still demonstrate that the impairment rises to the level of substantially limiting a major life activity. Thus, where an employee provided a record of hospitalization and diagnosis with multiple sclerosis, the statute did not cover her when she failed to prove that the limitation was "substantial" or that it presently impacted her ability to perform her job. Further, an employee will have to prove that the employer relied on the record at issue in making an adverse decision. Few employees have been successful using this test.

Exclusions
The EEOC specifically excludes various "conditions" from ADA coverage. These "conditions" are: homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, compulsive gambling, kleptomania, pyromania, or disorders resulting from the illegal use of drugs. The statute never protects employees that are currently using illegal drugs. However, if an employee has quit using drugs and is currently in a rehabilitation program he may be covered as "disabled," provided he can prove a substantial limitation on a major life activity.

Summary
When determining if an employee is "disabled" under the ADA, an employer must make three basic determinations. First, has the employee stated or can you clearly ascertain an "impairment?" This is a relatively easy burden for an employee to meet. Second, does that impairment affect a "major life activity?" Here, an employer should look for basic everyday functions. Also, if the employee is asking for an accommodation, this major life activity must actually correlate to the terms and conditions of the workplace or the performance of the job.

Finally, an employer should determine whether the impairment substantially limits the major life activity, even with mitigating measures in place. The importance of mitigating measures cannot be overstated. If, with a mitigating measure, the employee is able to bring his limitation within the range of the general population then he is not substantially limited and, therefore, not protected by the statute as "disabled."

Finally, when examining a "regarded as" or "record of" disability issue, an employer should take a few simple precautions. First, avoid verbal or written characterizations of an employee's impairment as a disability. For that matter, do not assume an employee has an impairment unless it is beyond question. Likewise, do not reassign or restrict an employee's work in a manner that suggests you believe him or her to have a "disability" as defined above.

Finally, do not rely on an employee's medical records, or any record that references an impairment, as the basis for an employment decision. Most importantly, if there is any question, any doubt, about an employee's disability, contact competent legal counsel and follow that advice carefully.

© 2002 Du Val Business Law, P.C. Suite 103 The Durham House 1012 SW King Ave.  Portland, Oregon

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