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.

Return to Table of Topics, 503 Index

Maintenance of consciousness is a major life activity necessary for employability. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 38; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Hearing is a major life activity. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Physical strength or spinal soundness is a major life activity for employees who lift or do extended driving. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

"Seeing" is a major life activity. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

When an employer discriminates based on criteria that would disqualify the individual from employment in the entire industry, this constitutes a substantial interference with a major life activity. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Maintenance of consciousness is a major life activity. OFCCP v. Exide Corp., 84-OFC-11, ALJ Rec. Dec., April 28, 1986, slip op. at 9, aff'd on other grounds, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, vacated on other grounds, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992).

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.

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. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 7, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 16.

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. OFCCP v. United Parcel Service, Inc., 88-OFC-7, ALJ Rec. Dec. and Order, August 1, 1991, slip op. at 10, stipulated dismissal, Special Assistant to the Assistant Secretary for Employment Standards, January 14, 1992.

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.

Major life activities include employment. 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.

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. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 24; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

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.

The complainant, a recovering alcoholic, has a record of impairment under subsection (ii) of the definition of individual with handicaps. However, OFCCP did not establish that complainant fell within this definition because there is no evidence that complainant's alcoholism substantially limited him in his major life activities. Id. at 25; reversed, Administrative Review Board Final Decision and Order, October 28, 1996, at 8-9.

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).

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. OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, 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.

Major life activities include activities other than "working." They are those basic activities that the average person in the general population can perform with little or no difficulty, e.g., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sitting, standing, lifting, reaching, thinking, reading, concentrating and interacting with others. School Board of Nassau County v. Arline, 480 U.S. 273, 281 (1987). Id. at 8.