United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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Impairment means any condition which weakens, diminishes restricts, or otherwise damages an individual's health or physical or mental activity. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, ALJ Rec. Dec., December 13, 1978, slip op. at 11, aff'd, Assistant Secretary for Employment Standards February 26, 1979, aff'd, 497 F. Supp. 1088 (D. Hi. 1980).

To determine whether an individual's impairment constitutes a substantial handicap to employment, a case by case determination should be made focusing on the individual job seeker, not solely on the impairment. The court sets forth various factors to weigh in-making this determination. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1100 (D. Hi. 1980), reconsideration denied, E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The term "impairment" means any condition which weakens, diminishes, restricts, or otherwise damages an individual's health or physical or mental activity. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 37; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An individual with epilepsy is handicapped. OFCCP v. Ford Motor Co., 80 OFCCP-32, ALJ Rec. Dec., October 4, 1985, slip op. at 3, ALJ Supplemental Rec. Dec., March 20, 1987.

In order to determine whether an individual is handicapped, the focus must be on the individual job seeker and not on the perceived impairment. OFCCP v. Washington Metropolitan Area Transit Authority, 84-OFC-8, ALJ Order Denying OFCCP's Motion to Compel Discovery and Denying Defendant's Motion for Summary Judgment, September 26, 1985.

In determining whether an individual is handicapped, the focus must be on the individual job seeker and not on the specific impairment. In making this determination, courts should weigh the factors set out in E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1100 (D. Hi. 1980). OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 25, 1986, slip op. at 13; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Congress did not intend to include correctable and temporary impairments in the definition of substantially impaired. Id. at 14; reversed, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

OFCCP has the burden of proving that an individual is handicapped or regarded as handicapped. Id. at 15; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

A manic depressive individual is handicapped. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec. Dec. and Order, September 30, 1986, slip op. at 22, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

If an individual was disqualified from the same or similar jobs offered by employers throughout the area to which the complainant has reasonable access, then his impairment or perceived impairment results in a substantial handicap to employment. OFCCP v. Yellow Freight Systems, Inc., 84-OFC-17, ALJ Rec. Dec. and Order, November 6, 1986, slip op. at 18, aff'd, Acting Assistant Secretary for Employment Standards Final Decision and Order of Remand, July 27, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

Applicants were handicapped within the meaning of the statute, because the defendant perceived the various physical conditions of the applicants to be weakening, diminishing and restricting their physical activity at work and rejected then on that basis, thereby regarding them as having impairments which substantially limited a major life activity. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 5; Consent Decree, December 10, 1991.

The relevant incidence of an impairment (i.e., whether it is "commonplace") has no role in determining whether it is a handicap under the Act's definition. OFCCP v. WMATA, 84-OFC-8, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, slip op. at 19, aff'g, ALJ Rec. Dec., June 10, 1988, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

There is little doubt that an individual who had or has had cancer is "handicapped" under one or more parts of the statutory definition. Id., vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

An employee with an asthmatic condition which her work aggravated, caused her to miss substantial work time, undergo medical care, and to accept a down grade in pay in order to be able to return to work, was an individual with handicaps. OFCCP v. Mountain Bell Telephone Co., 87-OFC-25, ALJ Rec. Dec. and Order, November 3, 1989, slip op. at 9; remanded on other grounds, Assistant Secretary for Employment Standards Order Denying Motion to Strike, Decision and Order of Remand, August 25, 1994; Consent Decree, February 9, 1995.

The complainant has a physical impairment because his knee condition has been diagnosed as chondromalacia patella, a form of arthritis. OFCCP v. Cissell Manufacturing Co. 87-OFC-26, Assistant Secretary for Employment Standards Dec. and Order of Remand, December 5, 1989, slip op. at 6; ALJ Rec. Dec. on Remand, May 22, 1992; Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Under Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985), the burden is on plaintiff to establish, as part of the prima facie case, the existence of an impairment that substantially limits a major life activity. The burden then shifts to defendant employer to demonstrate that challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 9 and 12, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Disqualification from the same or similar jobs throughout the area to which the complainant has access renders complainant's impairment substantially limiting. However, in determining this issue, an assumption is to be made that all employers offering such jobs would disqualify complainant on the same bases as the discriminating employer. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 5-6, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Complainant with a physical condition known as arteriovenous malformation did not have an impairment which in fact substantially limited his employment, where medical testimony showed that the condition did not limit his employability. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 7, aff'd, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 11.

Complainant was a handicapped individual under Section 503 and the regulations because contractor perceived complainant as suffering from epileptic seizures, an impairment which substantially limits a major life activity. Ibid., vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 16.

No accommodation is necessary where the evidence shows that complainant's impairment, arteriovenous malformation, does not substantially limit his employability. Id. at 8-9, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

OFCCP met its burden of proving that complainant's monocular condition substantially limits his ability to find work as a brakeman/conductor or similar employment where contractor rejected complainant because of his monocular condition and it must be assumed that all employers offering the job would reject him on that basis. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 30; Consent Decree, November 22, 1991.

Plaintiff has the burden of establishing the existence of an impairment that substantially limits a major life activity as an element of plaintiff's prima facie case. If plaintiff fails to establish a prima facie case, it is unnecessary to address the issue of reasonable accommodation. OFCCP v. United Parcel Service, Inc., 88-OFC-7, ALJ Rec. Dec. and Order, August 1, 1991, slip op. at 8, stipulated dismissal, Special Assistant to the Assistant Secretary for Employment Standards, January 14, 1992.

OFCCP failed to establish that a complainant diagnosed with post-traumatic disorder, depression and anxiety due to a physical attack he sustained while delivering packages for his employer in a high-crime area has a mental impairment which substantially limits one or more of his major life activities. Ibid.

Complainant who cannot make deliveries in a high crime area which is predominantly populated by African Americans is similar to employee in Elstener v. Southwestern Bell Telephone Co., 659 F. Supp. 1328 (S.D. Tex. 1987), who because of a knee injury and corrective surgery, lost the ability to climb telephone poles. Both individuals do not have impairments which substantially limits major life activities. Id. at 11.

In E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hi.

1980), the court rejected DOL's argument that an individual is substantially limited if his impairment is a current bar to the employment of his choice which he is capable of performing; court felt that such an interpretation was overbroad and ignored the limiting word "substantially." OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Denying Plaintiff's Motion to Deem Admitted Requests for Admission and for Summary Judgment, October 24, 1991, slip op. at 5; Consent Decree, June 2, 1993.

In E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), the court held that the determination of whether an individual is handicapped requires a case-by-case determination of whether the impairment of a rejected qualified job seeker constitutes, for the individual, a substantial handicap to employment, considering the number and type of jobs for which the individual is disqualified, the geographical area to which the individual has access, and the individual's training and job expectations. Ibid.; Consent Decree, June 2, 1993.

The inquiry of whether an individual is handicapped under Section 503 is an individual factual issue focusing on the particular circumstances of the person and his employment circumstances. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 12; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

In determining if an impairment is substantially limiting, courts focus on the number and types of jobs foreclosed to an individual due to his impairment or perceived impairment, the geographical area to which the individual has access to employment, and the individual's reasonable job expectations and training. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

A person is substantially limited if an impairment causes someone to experience difficulty in securing, retaining or advancing in employment. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Employee suffered a medical impairment in his knee diagnosed by three physicians as chondromalacia patella. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Although employee's knee impairment affected his ability to work in jobs requiring stooping and bending, which would not necessarily substantially limit his employment in general, and although there was no proof that he was substantially limited in his overall geographic employment opportunities, employee meets the definition of handicapped individual because contractor regarded or treated employee as so impaired, precluded him from all employment in their operation and, thus, inhibited his ability to secure, retain, or advance in employment. Id. at 13-14; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Complainant who had a non-disabling condition known as occipital arteriovenous malformation in the left side of his brain which, according to the record, "probably did not cause" his inaccurate perception that he was an epileptic, does not fall within subsection (i) or (ii) of the definition of handicapped individual. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 11.

Several courts have found that for purposes of the Act, alcoholism is a handicapping condition. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 23; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996.

In 1978, Congress amended the definition of "handicapped individual," to provide that the term does not include any individual whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others. Id. at 23; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996.

The legislative history of 1978 amendment to the Rehabilitation Act, makes it clear that Congress intended for rehabilitated alcoholics to be covered by the Act. Id. at 23; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 5, fn.8.

Section 706(8)(c)(v) of the Rehabilitation Act, (which excludes from protection current alcohol users who cannot perform the job or who poses a direct threat to property or safety of others), does not apply to complainant who had undergone alcohol rehabilitation and, who according to medical experts, had a strong recovery, currently does not use alcohol, currently continues to attend support groups meetings, and whose alcohol use has never interfered with the successful performance of his duties in any job. Id. at 23-24; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 7.

"Individual with handicaps" includes any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such impairment; or (iii) is regarded as having such an impairment. Id. at 24; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 4.

A recovering alcoholic is not per se handicapped under the Rehabilitation act, because the Act requires that a major life activity be substantially limited by an individual's impairment. Id. at 24; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996.

Alcoholism is clearly an impairment within the meaning of the Rehabilitation Act. Id. at 24; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 8-9.

In determining whether an individual's impairment substantially limits a major life activity, those life activities which affect employability should be looked at. Id. at 24; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

The complainant (a recovering alcoholic) is not substantially limited in any major life activities by his impairment in that he does not currently use alcohol, did not consider himself handicapped, none of his major life activities are substantially affected by his alcoholism (other than his ability to hold the 1600 jobs from which the contractor excludes alcoholics), and alcohol never affected his work in any way. Id. at 24-25; reversed, Administrative Review Board Final Decision and Order, October 28, 1996, at 8-9.

An individual's inability to perform a particular job for a particular employer is not sufficient to establish the existence of a handicap under Section 503; his impairment must substantially limit his employment generally. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, at 7; Order Approving Settlement and Dismissal, April 29, 1994.

Several factors are relevant to determining whether an impairment substantially limits an individual's employment potential: 1) the number and type of jobs from which the impaired individual is disqualified; 2) the geographical are to which the individual has reasonable access, and 3) the individual's job expectations and training. Id. at 9-10.

In determining whether a substantial limitation to employment exists for an impaired individual, consideration of the individual's closed employment universe is not limited to a single, identical job existing among various employers in the same industry. Id. at 10.

Assistant Secretary affirms ALJ's holding that contractor's refusal to hire complainant because of his back impairment substantially limits his employability. Id. at 8-11.

Congress in passing the American with Disabilities Act (ADA), used the specific example of an individual like the complainant who suffered from a correctable hearing impairment, to illustrate application of the term "substantially limits" and to distinguish "minor, trivial impairments" from those that restrict "the conditions, manner, or duration under which [important life activities] can be performed in comparison to most people." OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

"[W]hether a person has a disability should be assessed without regard to availability of mitigating measures, such as reasonable accommodations or auxiliary aids . . . " Id. at 14; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The term impairment, as used in Section 503, implies more than an average characteristic shared by many. Like height or strength, myopia is a physical characteristic, not a chronic illness, a disorder or deformity, a mental disability, or a condition affecting an individual's health. Myopia is measured by comparing a myopic individual's ability to see with that of the average or normal person. Therefore, myopia is not an impairment under the Act. OFCCP v. Delta Airlines, Inc., 94-OFC-8, ALJ Rec. Dec. and Order, March 20, 1996, at 7; exceptions pending, Administrative Review Board.

Adopting the ALJ's conclusion, the Assistant Secretary held that "Cissell regarded or treated the [complainant] as . . . impaired [by] preclud[ing] him from all employment in their operation." OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 6; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

To the extent that Section 503 relates to employment, the term "individual with a disability" does not include any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current abuse, would constitute a direct threat to property or the safety of others. 29 U.S.C. § 706(8)(C)(v). OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 4.

The ARB affirmed the ALJ's finding that complainant was an individual with a disability because Exxon regarded him as having an impairment which substantially limited a major life activity. Id. at 5.

The ARB held that an employee may fall under subpart (iii) of the definition [of individual with a disability], if he has an impairment that does not substantially limit a major life activity, but the impairment is regarded as being substantially limiting. The ARB further noted that individuals also come into this category if they have an impairment which is substantially limiting only because of attitudes of others toward the impairment. For example, a job applicant's facial scar may be substantially limiting because the prospective employer believes it will dissuade customers. Finally, an individual with no impairment may be regarded as having one that is substantially limiting. This circumstance would encompass discrimination based on the mistaken belief that an individual is physically or mentally impaired or on genetic information relating to illness, disease or disorders. Id. at 5 and n.7.

By including the "regarded as" criterion, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." School Board of Nassau County v. Arline, 480 U.S. 273, 283 (1987) Id. at 5.

Congress clearly intended coverage of individuals treated for alcoholism. Consequently, the ARB held that since Exxon perceives the possibility that complainant's alcoholism could affect his work performance if he were to suffer a relapse, he is regarded as having an impairment that affects employment in these circumstances. Id. at 5 and n.8.

An impairment may affect a major life activity without significantly limiting it. Special considerations apply when, as here, the major life activity is "working." In this context, "substantially limits" means being restricted in the ability to perform either (1) a class of jobs or (2) a broad range of jobs in various classes. A "class of jobs" would include jobs requiring similar training, knowledge, skills and abilities. 29 CFR Part 1630, App. at 403. Id. at 6.

The inability to perform a single job does not qualify as a substantial limitation. E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1101-1102 (D. Hawaii 1980) (substantial limitation means more than an inability to perform one particular job but less that a general inability to work; evaluation should focus on the number and the type of jobs from which the employee is disqualified). Ibid.

Complainant's records of prior alcohol consumption, of public drunkenness, of adverse marital effects, and diagnosis and history of medical treatment for alcoholism constituted a sufficient record of a substantially limiting impairment to satisfy the definition of individual with a disability. Id. at 8-9.

The ARB overruled the ALJ's conclusion and found complainant to be an individual with a disability under 29 U.S.C. § 706(8)(B)(ii) in that he has a record of an impairment that substantially limited major life activities other than "working." The ARB further observed that "[T]he nature of the disease of alcoholism requires that there be a continuum of treatment and that the alcoholic be permitted some opportunity for failure in order to come to the acceptance of his disease which is the critical element of his cure." Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir. 1989) Id. at 9.

Congress excluded from coverage only those alcoholics whose current use of alcohol prevented them from performing the duties of the job or whose employment, because of current alcohol abuse, posed a direct threat to others. 29 U.S.C. § 706(8)(C)(v). Id. at 10.