Disabilities Guidebook: Who Has a Disability under the ADA?

Disabilities Guidebook: Who Has a Disability under the ADA?

Last updated: July 2004

(Chapter 1, Section 1 from Guidebook of Laws and Programs for People with Disabilities)

 

The ADA Definition of Disability

In General
The Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.,  prohibits discrimination on the basis of "disability" in several critical areas. Those areas include state and local government services, places of public accommodation, employment, telecommunications and transportation. These requirements are explained in other chapters of this guidebook.

Under the ADA, you have a disability if you have at least one of the following:

  • a physical or mental impairment that "substantially limits" one or more "major life activities";
  • or a record of such an impairment; or
  • you are regarded as having such an impairment.

The measurement for an impairment is when the condition is most acute. Therefore, if you have sporadic impairment, disability will be assessed at the time when the symptoms are most evident.

Under the first bullet above, there are two basic parts to having a disability:

  • You must actually have what is considered to be a "physical or mental impairment"; and

  • The impairment must "substantially limit one or more of your major life activities." We discuss these terms in more detail below.

Physical or Mental Impairments
In order to have a disability under the ADA , you must have a physical or mental impairment. Not everything that restricts your activities qualifies as an impairment.

Examples of conditions that are not impairments:
(1) Obesity is not an impairment unless there is a physiological disorder.
(2) Hepatitis A.
(3) Side effects of certain drugs

 

A physical impairment is any medical disorder, condition, disfigurement or loss affecting one of the body systems.

A mental impairment is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

It is not possible to include a list of all the specific conditions that would constitute physical or mental impairments, but some examples may be useful.

Examples of conditions that are impairments: AIDS, and its symptoms; Alcoholism; Asthma; Blindness or other visual impairments; Cancer; Cerebral palsy; Depression; Diabetes, Epilepsy; Hearing or speech impairments; Heart Disease; Migraine Headaches; Multiple sclerosis; Muscular dystrophy;Orthopedic impairments; Paralysis; complications from Pregnancy; Thyroid gland disorders; Tuberculosis; loss of body parts.

Under the ADA, every "covered entity" may be required to decide whether you have a disability.

The term "covered entity" means a person, a business, an organization, or an agency that the ADA says must not discriminate against persons with disabilities.

Examples of "Covered Entities":
(1) Employers and employment agencies that have at least 15 employees, and labor organizations.
(2) Any State or local government, or any department or agency of that government;
(3) AMTRAK or other commuter rail authorities;
(4) Any private business that provides public accommodations, such as stores, theaters, auditoriums, hotels, restaurants, bars, gas stations, banks, doctors, lawyers, and other professional offices, hospitals, public transportation, galleries, day care centers, gyms, bowling alleys, and golf courses.    

The covered entity must make a decision as to whether you have a physical or mental impairment, and whether that impairment is substantially limiting. In many cases, however, entities fail to make this assessment.

Substantial Limit on a Major Life Activity
In order to have a disability under the ADA, a physical or mental impairment (or a record of it or a perception of it) must "substantially limit" one or more of your "major life activities."

Major Life Activities. These consist of functions such as caring for yourself, walking, seeing, hearing, speaking, breathing, learning, working, procreation and reproduction.

Other major life activities include the following: bathing, dressing, eating, interacting with others; lifting, reaching, reading, sitting and standing, sleeping, thinking and concentrating.

Major life activities do not include the following: caring for others, climbing, heavy lifting, performing repetitive motions, and grocery shopping.

Substantial Limit. It is not enough that the impairment has a minor effect on major life activities. The impairment must "substantially limit" these activities.

A substantial limit on an activity is present when:

  • You cannot do the activity at all, or
  • There is a significant restriction in the way you do it, how long it takes, or under what conditions it can be done. These limits should be compared to the average person in the general population.

The facts of your particular case will determine whether or not your major life activities are substantially limited.

Examples of Substantially Limiting Impairments:

  • A person who is paraplegic is substantially limited in the major life activity of "walking.
    A person who is blind is substantially limited in the major life activity of "seeing.
  • A person with a developmental disability may be substantially limited in the major life activity of "learning."
  • A person with a traumatic brain injury is substantially limited in the major life activities of "caring for oneself," "learning" and "working."

Factors to Be Considered
To decide whether or not your impairment is substantially limiting, the following factors are to be considered:

  • The kind of impairment and how severe it is;

  • How long it is expected to last;

  • What type of impairments are present when the disability is most acute; and
  • Whether it is going to impact you in a permanent or long-lasting way.

Generally speaking, the condition must have a permanent or long-term effect on your health. Short-term, or temporary impairments, that are not reoccurring, usually are not considered to be substantially limiting.

Examples: Appendicitis, hernias, broken bones and sprains are not substantially limiting.

"Working" As a Major Life Activity
Where "working" is the major life activity which is restricted, there is a substantial limitation only if:

  • There is a significant barrier to employment generally, or

  • The restriction cuts off your usual type of employment.

You can be considered substantially limited in the major life activity of "working" even if you are not totally unable to do work. On the other hand, it is not enough just to show that you can no longer perform the job of your choice. To be substantially limited in the major life activity of working, you must be unable to work in a broad class of jobs. It is not enough that you cannot work in just one certain type of job.  

Examples:
(1) A teacher's paranoia did not substantially limit her in "working." Even though it significantly restricted her ability to teach children with severe developmental disabilities, it did not restrict her ability to work as a teacher generally.
(2) A woman with a severe vision impairment was not substantially limited in the major life activity of "working" because the impairment prevented her from the job of global pilot, where she was still able to work as a regional pilot or a pilot instructor.

In a recent decision, the U.S. Supreme Court has made it harder to establish a disability under the ADA based on a substantial limit to the major life activity of working.  In Toyota Motor Manufacturing Co. v. Williams, the Court held that persons cannot establish disability this way unless they demonstrate that their impairments prevent or restrict them from performing tasks that are of central importance to most people's daily lives.

Corrective and Mitigating Measures Must Be Considered
Corrective and mitigating measures must be considered in determining whether you are "substantially limited" in a "major life activity."

Corrective and mitigating measures include medicines and assistive devices, such as eyeglasses, prosthetic limbs, and wheelchairs.

In other words, you do not have a disability if you can use certain corrective or mitigating measures to avoid being substantially limited in a major life activity. The decision whether you have a disability under the ADA requires consideration of both the positive and negative effects of such measures.

Examples:
(1) Severely myopic applicants were denied positions as global airlines pilots because they failed to meet the airline's minimum visual requirements. They were not "disabled" within the meaning of the ADA because they could see fine with glasses.
(2) A person with a mental impairment can be considered to be "disabled" under the ADA by taking into consideration the negative side effects of anti-psychotic drugs, such as painful seizures.

You can still have a disability under the ADA even if you use a corrective device. However, you must show that even when you use the corrective device, you remain substantially limited in a major life activity, or that you are regarded as substantially limited.

Example: Persons who use prosthetic limbs or wheelchairs may be mobile and capable of functioning in society, but may still have a "disability" because of a substantial limitation on their ability to walk or run.
 

Other Ways To Be Considered As Having a Disability

A Record or History of Disability
There are certain situations where you are considered to have a "disability" under the ADA even though you do not actually have a substantially limiting impairment. One of these situations occurs where you have a "record" of a substantially limiting impairment.

A "record" of a substantially limiting impairment means that you have either:

  • A history of such impairment or
  • You have been wrongly classified as having such impairment.

This law is intended to make sure that people are not discriminated against because of a history of disability. A person would fall into this category of disability if his medical records showed that he once had a disability, but has now recovered.

This law also is intended to make sure that people are not discriminated against because they have been classified as having a disability, when they really never had one.

To prove discrimination under this section of the ADA, you would have to show that a covered entity relied on a record showing that you had a substantially limiting impairment.

Examples:
(1) An employer refuses to hire you due to your history of mental illness, even though you have recovered sufficiently to perform all essential functions of the job.
(2) A dentist refuses to treat you because you were diagnosed as having HIV, even though the diagnosis was wrong.

Regarded As Having an Impairment
There is another situation where you can still be considered as having a "disability" under the ADA, even though you do not actually have a substantially limiting impairment. That occurs where you are "regarded" or "perceived" as having a physical or mental impairment that substantially limits a major life activity.

You are "regarded" or "perceived" as having an impairment where:

  • You have an impairment that does not substantially limit any major life activities, but it is treated by a covered entity as though it does limit a major life activity; or    
  • You have an impairment that substantially limits a major life activity only because of the attitudes of other people toward your impairment; or
  • You do not have an impairment, but you are treated by a covered entity as though you do have such an impairment.

This means that a person is considered to have a disability when he or she is denied employment or services or benefits by a covered entity because of myths, fears, and stereotypes about disabilities.

Examples:
(1) An employee has controlled high blood pressure, which is not substantially limiting. However, his employer fears that the employee will suffer a heart attack and reassigns the employee to a less strenuous job.
(2) A person with a severe burn or scar does not actually have a disability. He may be regarded as having a disability when he faces discrimination based on people's attitudes.

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