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Since the Compliance Manual Section on the Definition of the Term "Disability" was published, the Supreme Court has ruled that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure. This means that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA's first definition of "disability." The Supreme Court's rulings were in Sutton v. United Airlines, Inc., 527 U.S. ____ (1999), and Murphy v. United Parcel Service, Inc., 527 U.S. ____ (1999).
As a result of the Supreme Court's ruling, this document's guidance on mitigating measures is superseded. Following the Supreme Court's ruling, whether a person has an ADA "disability" is determined by taking into account the positive and negative effects of mitigating measures used by the individual. The Supreme Court's ruling does not change anything else in this document. The superseded guidance is found in:
For more information on the Supreme Court rulings and their impact on determining whether specific individuals meet the definition of "disability," consult the Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," which can be found on EEOC's website at www.eeoc.gov.
SECTION 902
DEFINITION OF THE TERM "DISABILITY"
Table of Contents
902.1 Introduction and Summary
(a) General
(b) Statutory Definition
(c) Summary
902.2 Impairment
(a) General
(b) Regulatory Definition
(c) Conditions That Are Not Impairments
(1) Statutory and Legislative History
Exceptions
(2) Physical Characteristics
(3) Pregnancy
(4) Common Personality Traits
(5) Normal Deviations in Height, Weight, or
Strength
(6) Persons with One of These Conditions and
an Impairment
(d) Contagion
(e) Voluntariness
902.3 Major Life Activities
(a) General
(b) Regulatory Definition
(c) Judicial Interpretations
902.4 Substantially Limits
(a) General
(b) Regulatory Definition
(c) Extent to Which an Impairment Restricts a Major
Life Activity
(1) Substantial Limitation of Major Life
Activities Generally
(2) Substantial Limitation of Major Life
Activity of Working
(d) Duration and Impact of Impairment
(e) Multiple Impairments
902.5 Mitigating Measures
902.6 Statutory Exceptions to the Definition of
"Disability"
902.7 Record of an Impairment that Substantially Limits
Major Life Activities
(a) General
(b) History of Such an Impairment
(c) Misclassified as Having Such an Impairment
902.8 Regarded as Having a Substantially Limiting
Impairment
(a) General
(b) Regulatory Definition
(c) Persons with Impairments Regarded as
Substantially Limiting
(d) Persons Who Are Substantially Limited as a
Result of Others' Attitudes
(e) Unimpaired Persons Regarded as Having
Substantially Limiting Impairments
(f) Regarded as Substantially Limited in the Major
Life Activity of Working
902.9 Cross References
INDEX (removed in ASCII version)
SECTION 902
DEFINITION OF THE TERM "DISABILITY"
902.1 Introduction and Summary
(a) General -- Title I of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-17 (Supp. IV 1992)
[hereinafter ADA or Act], prohibits employment discrimination on
the basis of disability.1 The ADA protects a qualified
individual with a "disability" from discrimination in job
application procedures; hiring; advancement; discharge;
compensation; job training; and other terms, conditions, and
privileges of employment. 42 U.S.C. § 12112(a). To be
protected by the ADA, a person must meet the definition of the
term "qualified individual with a disability" as defined by the
Act and implementing regulations.2 This Compliance Manual
section discusses the ADA definition of the term "disability."3
The
definition of the term "qualified individual with a disability"
and the appropriate analysis for determining whether a person
meets that definition will be discussed in a separate forthcoming
Compliance Manual section.
A major part of the inquiry in an ADA charge often will
be the determination of whether the charging party is protected
by the Act. This determination frequently requires more
extensive analysis than does the determination of whether a
person is protected by other nondiscrimination statutes. For
example, it is generally clear whether a person is of a
particular race, national origin, age, or sex that is alleged to
be the basis of discrimination. By contrast, it often is less
clear whether a person's physical or mental condition constitutes
an impairment of sufficient degree to establish that the person
meets the statutory definition of an individual with a
"disability."
The definition of "disability" under the ADA reflects
the intent of Congress to prohibit the specific forms of
discrimination that persons with disabilities face. While
individuals with disabilities may experience the types of
discrimination that confront other groups, they also may
encounter unique forms of discrimination because of the nature of
their disabilities and the effect that their present, past, or
perceived conditions have on other persons. The purpose of the
ADA is to eliminate discrimination that confronts individuals
with disabilities.
Since the definition of the term "disability" under the
ADA is tailored to the purpose of eliminating discrimination
prohibited by the ADA, it may differ from the definition of
"disability" in other laws drafted for other purposes. For
example, the definition of a "disabled veteran" is not the same
as the definition of an individual with a disability under the
ADA.4 Similarly, an individual might be eligible for disability
retirement but not be an individual with a disability under the
ADA. Conversely, a person who meets the ADA definition of
"disability" might not meet the requirements for disability
retirement.
(b) Statutory Definition -- With respect to an
individual, the term "disability" means
(A) a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment.
42 U.S.C. § 12102(2); see also 29 C.F.R. § 1630.2(g).
A person must meet the requirements of at least one of these
three criteria to be an individual with a disability under the
Act.
The first part of the definition covers persons who
actually have physical or mental impairments that substantially
limit one or more major life activities. The focus under the
first part is on the individual, to determine if (s)he has a
substantially limiting impairment. To fall under the first part
of the definition, a person must establish three elements:
(1) that (s)he has a physical or mental impairment
(2) that substantially limits
(3) one or more major life activities.
The second and third parts of the definition cover
persons who may not have an impairment that substantially limits
a major life activity but who have a history of, or have been
misclassified as having, such a substantially limiting
impairment, or who are perceived as having such a substantially
limiting impairment. The focus under the second and third parts
is on the reactions of other persons to a history of an
impairment or to a perceived impairment. A history or perception
of an impairment that substantially limits a major life activity
is a "disability." These parts of the definition reflect a
recognition by Congress that stereotyped assumptions about what
constitutes a disability and unfounded concerns about the
limitations of individuals with disabilities form major
discriminatory barriers, not only to those persons presently
disabled, but also to those persons either previously disabled,
misclassified as previously disabled, or mistakenly perceived to
be disabled. To combat the effects of these prevalent
misperceptions, the definition of an individual with a disability
precludes discrimination against persons who are treated as if
they have a substantially limiting impairment, even if in fact
they have no such current incapacity.
(c) Summary -- To determine whether a charging
party is protected by the ADA, the EEOC
investigator initially should determine why the charging party
believes that the respondent has discriminated against him/her on
the basis of disability. The charging party's response usually
will provide the investigator with a starting point for analysis
by identifying the type of condition at issue. For example, if
the charging party replies that the respondent refused to hire
him/her because it learned that the charging party had received
psychiatric treatment, then the investigator will know to
investigate whether the charging party has, has a record of, or
is regarded as having a psychiatric disability. (Of course,
further investigation may reveal other disabilities that may
constitute the reason for the challenged employment action.)
The investigator then should determine whether the
charging party meets the first part of the definition of
"disability"; that is, the investigator should determine whether
the charging party actually has a physical or mental impairment
that substantially limits a major life activity. In that regard,
the investigator should determine whether the charging party's
condition is an impairment. See § 902.2, infra. If the
condition is an impairment, then the investigator should
determine whether the charging party's impairment substantially
limits a major life activity other than working. See §
902.4(c)(1), infra. If the impairment does not, then the
investigator should determine whether the charging party is
substantially limited in the ability to work. See §
902.4(c)(2), infra.
If the charging party does not meet the first part of
the definition of "disability," or if the investigator after
attempting an analysis is unsure whether the charging party meets
the first part, then the investigator should determine whether
the charging party meets the second or third part of the
definition. See §§ 902.7, .8 infra. With respect to
the second part, the investigator should determine whether the
charging party has a history of, see § 902.7(b), infra, or
has been misclassified as having, see § 902.7(c), infra, an
impairment that substantially limited a major life activity.
With respect to the third part, the investigator should determine
whether the charging party is regarded as having an impairment
that substantially limits a major life activity. In that regard,
the investigator should determine whether the charging party (1)
has an impairment that does not substantially limit a major life
activity but that is regarded as being substantially limiting,
see § 902.8(c), infra, (2) has an impairment that is
substantially limiting only as a result of the attitudes of
others, see § 902.8(d), infra, or (3) has no impairment but
is regarded as having a substantially limiting impairment, see
§ 902.8(e), infra.
902.2 Impairment
(a) General -- The person claiming to be an
individual with a disability as defined by the
first part of the definition must have an actual impairment. If
the person does not have an impairment, (s)he does not meet the
requirements of the first part of the definition of disability.
Under the second and third parts of the definition, the person
must have a record of a substantially limiting impairment or be
regarded as having a substantially limiting impairment.5
A person has a disability only if his/her limitations
are, were, or are regarded as being the result of an impairment.
It is essential, therefore, to distinguish between conditions
that are impairments and those that are not impairments. Not
everything that restricts a person's major life activities is an
impairment. For example, a person may be having financial
problems that significantly restrict what that person does in
life. Financial problems or other economic disadvantages,
however, are not impairments under the ADA. Accordingly, the
person in that situation does not have a "disability" as that
term is defined by the ADA. On the other hand, an individual may
be unable to cope with everyday stress because (s)he has bipolar
disorder. Bipolar disorder is an impairment. In that situation,
the analysis proceeds to whether the individual's impairment
substantially limits a major life activity.
(b) Regulatory Definition -- A physical or mental
impairment means
(1) [a]ny physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting one or more
of the following body systems: neurological, musculoskeletal,
special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genito-urinary, hemic
and lymphatic, skin, and endocrine; or
(2) [a]ny mental or psychological disorder, such
as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
29 C.F.R. § 1630.2(h); see also S. Rep. No. 116, 101st
Cong., 1st Sess. 22 (1989) [hereinafter Senate Report]; H.R. Rep.
No. 485 pt. 2, 101st Cong., 2d Sess. 51 (1990) [hereinafter House
Education and Labor Report]; H.R. Rep. No. 485 pt. 3, 101st
Cong., 2d Sess. 28 (1990) [hereinafter House Judiciary Report].
This regulatory definition does not set forth an
exclusive list of specific impairments covered by the ADA.
Instead, the definition describes the type of condition that
constitutes an impairment.
The first step in investigating whether a charging
party has a disability is investigating whether (s)he has an
impairment, has a record of an impairment, or is regarded as
having an impairment. In many cases, it is obvious that a
condition is an impairment. In other cases, however, it is not
obvious. When it is unclear whether a charging party has an
impairment, the investigator should ask the charging party for
medical documentation that describes his/her condition. Medical
documentation that describes the charging party's condition or
that contains a diagnosis of the condition will help to determine
if the charging party has an impairment.6 In addition, the
investigator should ask the respondent to provide copies of
relevant medical documentation concerning the charging party's
condition that the respondent has in his/her possession. Such
documentation should include the results of any medical
examination conducted or ordered by the respondent as well as
copies of medical documentation that the charging party provided
to the respondent. If the investigator requests the information
directly from a third party, rather than from the charging party
or the respondent, then the investigator first should obtain a
signed medical release from the charging party and should submit
the release with the request. Other information, such as the
charging party's description of his/her condition or statements
from the charging party's friends, family, or co-workers, also
may be relevant to determining whether the charging party has an
impairment.
(c) Conditions That Are Not Impairments
(1) Statutory and Legislative History
Exceptions
-- The statute and the legislative history
specifically state that certain conditions are not impairments
under the ADA.7 The term "impairment" does not include
homosexuality and bisexuality. 42 U.S.C. § 12211(a); see
also 29 C.F.R. § 1630.3(e); H.R. Rep. No. 596, 101st Cong.,
2d Sess. 88 (1990) [hereinafter Conference Report]; House
Education and Labor Report at 142; House Judiciary Report at 75.
Further, environmental, cultural, and economic disadvantages such
as a prison record or a lack of education are not impairments.
Senate Report at 22; House Education and Labor Report at 51-52;
House Judiciary Report at 28. In addition, age, by itself, is
not an impairment. See Senate Report at 22; House Education and
Labor Report at 52; House Judiciary Report at 28. A person who
has a medical condition (such as hearing loss, osteoporosis8, or
arthritis) often associated with age has an impairment on the
basis of the medical condition. A person does not have an
impairment, however, simply because (s)he is advanced in years.
29 C.F.R. pt. 1630 app. § 1630.2(h).
Example 1 -- CP has been unemployed for two
years. Although she has actively sought work, CP has not been
able to find a job. CP asserts that employers will not hire her
because she is a convicted felon who served three years in prison
for armed robbery. CP argues that her prison record is a
disability because it prevents her from getting a job. CP,
however, does not have a disability because she does not have a
physical or mental impairment as defined by the ADA. A prison
record is not an impairment for ADA purposes.
Example 2 -- CP applies for a job as a cashier
at his neighborhood supermarket. The store manager speaks with
CP briefly and then asks CP to fill out a written job application
form. CP does not complete the form because he cannot read it.
CP, who has the equivalent of a second-grade education, was never
taught to read. CP does not have a physical or mental impairment
as defined by the ADA. A lack of education is not an impairment
for ADA purposes.
Example 3 -- Same as Example 2, above, except CP
cannot read because he has a severe form of dyslexia. CP has an
impairment as defined by the ADA. Dyslexia, a learning
disability, is an impairment for ADA purposes.
Example 4 -- CP, who is sixty-three, has
osteoporosis. The osteoporosis, a reduction in bone quantity, is
an impairment as defined by the ADA. CP's age, sixty-three, is
not a physical or mental impairment as defined by the ADA.
(2) Physical Characteristics -- Simple
physical characteristics are not impairments under the
ADA. For example, a person cannot claim to be impaired because
of blue eyes or black hair. Senate Report at 22; House Education
and Labor Report at 51; House Judiciary Report at 28. Similarly,
a person does not have an impairment simply because (s)he is
left-handed. de la Torres v. Bolger, 781 F.2d 1134, 39 EPD Par.
35,883, 1 AD Cas. (BNA) 852 (5th Cir. 1986).9
Further, a characteristic predisposition to illness or
disease is not an impairment. 29 C.F.R. pt. 1630 app. §
1630.2(h). A person may be predisposed to developing an illness
or a disease because of factors such as environmental, economic,
cultural, or social conditions. This predisposition does not
amount to an impairment.
(3) Pregnancy -- Because pregnancy is not
the result of a physiological disorder, it is not an impairment.
29 C.F.R. pt. 1630 app. § 1630.2(h); see also Byerly v. Herr
Foods, Inc., 61 EPD Par. 42,226, 2 AD Cas. (BNA) 666 (E.D. Pa.
1993). Complications resulting from pregnancy, however, are
impairments.10
Example 1 -- CP is in the third trimester of her
pregnancy. Her pregnancy has proceeded well, and she has
developed no complications. CP does not have an impairment.
Pregnancy, by itself, is not an impairment.
Example 2 -- Same as Example 1, above, except CP
has developed hypertension. CP has an impairment, hypertension.
(Remember that the mere presence of an impairment does not
automatically mean that CP has a disability. Whether the
hypertension rises to the level of a disability will turn on
whether the impairment substantially limits, or is regarded as
substantially limiting, a major life activity.)
(4) Common Personality Traits -- Like
physical characteristics, common personality traits also are not
impairments. In Daley v. Koch, 892 F.2d 212, 214, 52 EPD Par.
39,534 at 60,471, 1 AD Cas. (BNA) 1549, 1550 (2d Cir. 1989), a
psychological profile of an applicant for a police officer
position determined that the applicant "showed 'poor judgment,
irresponsible behavior and poor impulse control'" but did not
have "any particular psychological disease or disorder." The
court ruled that the applicant's personality traits did not
constitute an impairment. 892 F.2d at 215, 52 EPD at 60,473, 1
AD Cas. at 1551.
Example 1 -- CP is a lawyer who is impatient
with her co-workers and her boss. She often loses her temper,
frequently shouts at her subordinates, and publicly questions her
boss's directions. Her colleagues think that she is rude and
arrogant, and they find it difficult to get along with her. CP
does not have an impairment. Personality traits, such as
impatience, a quick temper, and arrogance, in and of themselves
are not impairments.
Example 2 -- Same as Example 1, above, except
CP's behavior results from bipolar disorder. CP has an
impairment, bipolar disorder.11
Example 3 -- CP is an account manager who is in
charge of developing a major advertising campaign for his firm's
biggest client. Although he used to be easygoing and relaxed in
the office, CP has become very irritable at work. He has twice
lost his temper with his assistant, and he recently engaged in a
shouting match with one of his superiors. CP has consulted a
psychiatrist, who diagnosed a recurrence of the post-traumatic
stress disorder for which CP was treated several years ago. CP
has an impairment. CP's post-traumatic stress disorder, a mental
disorder, is a mental impairment.12
(5) Normal Deviations in Height, Weight, or
Strength -- Similarly, normal deviations in height, weight, or
strength that are not the result of a physiological disorder are
not impairments.13 29 C.F.R. pt. 1630 app. § 1630.2(h); see
also Jasany v. United States Postal Service, 755 F.2d 1244,
1249, 36 EPD Par. 35,070 at 36,835, 1 AD Cas. (BNA) 706, 709 (6th
Cir. 1985). At extremes, however, such deviations may constitute
impairments. Further, some individuals may have underlying
physical disorders that affect their height, weight, or strength.
(i) For example, a four foot, ten inch
tall woman who was denied employment as an automotive production
worker because the employer thought she was too small to do the
work does not have an impairment. See American Motors Corp. v.
Wisconsin Labor and Industry Review Commission, 119 Wis. 2d 706,
350 N.W.2d 120, 36 EPD Par. 34,936, 1 AD Cas. (BNA) 611 (1984)
(interpreting state law). The woman's height was below the norm,
but her small stature was not so extreme as to constitute an
impairment and was not the result of a defect, disorder, or other
physical abnormality. On the other hand, a four feet, five
inches tall man with achondroplastic dwarfism14 does have an
impairment. See Dexler v. Tisch, 660 F. Supp. 1418, 1425, 43 EPD
Par. 37,280 at 48,207, 1 AD Cas. (BNA) 1086, 1092 (D. Conn.
1987). The man's stature was the result of an underlying
disorder, achondroplastic dwarfism, which is an impairment.
(ii) Being overweight, in and of itself,
generally is not an impairment. See 29 C.F.R. pt. 1630 app.
§ 1630.2(h) (noting that weight that is "within 'normal'
range and not the result of a physiological disorder" is not an
impairment); see also id. § 1630.2(j) (noting that, "except
in rare circumstances, obesity is not considered a disabling
impairment"). Thus, for example, a flight attendant who, because
of avid body building (which resulted in a low percentage of body
fat and a high percentage of muscle), exceeds the airline's
weight guidelines does not have an impairment. See Tudyman v.
United Airlines, 608 F. Supp. 739, 746, 38 EPD Par. 35,674 at
40,015, 1 AD Cas. (BNA) 664, 669 (C.D. Cal. 1984). Similarly, a
mildly overweight flight attendant who has not been clinically
diagnosed as having any medical anomaly does not have an
impairment. Underwood v. Trans World Airlines, 710 F. Supp. 78,
83-84, 51 EPD Par. 39,297 at 59,106-07 (S.D.N.Y. 1989)
(plaintiff's state action preempted by federal law where
plaintiff failed to establish that being mildly overweight
brought her within class protected by state human rights law with
broad definition of disability).
On the other hand, severe obesity,15 which has been
defined as body weight more than 100% over the norm, see The
Merck Manual of Diagnosis and Therapy 981 (Robert Berkow ed.,
16th ed. 1992), is clearly an impairment. See Cook v. Rhode
Island Dep't of Mental Health, Retardation and Hosp., 10 F.3d 17,
63 EPD Par. 42,673, 2 AD Cas. (BNA) 1476 (1st Cir. 1993). In
addition, a person with obesity may have an underlying or
resultant physiological disorder, such as hypertension or a
thyroid disorder. A physiological disorder is an impairment.
See 29 C.F.R. § 1630.2(h).16
(6) Persons with One of These Conditions and
an Impairment -- A person who has one or more
of these characteristics or traits also may have other conditions
that are physical or mental impairments. See Senate Report at
22; House Education and Labor Report at 52; House Judiciary
Report at 28. Thus, a left-handed individual who has a heart
condition has an impairment. Although left-handedness is not an
impairment, heart disease is an impairment.
(d) Contagion -- A contagious disease is an
impairment.17 The contagious nature of the disease
does not, by itself, remove that condition from the protection of
the ADA. In School Bd. of Nassau County v. Arline, 480 U.S. 273,
42 EPD Par. 36,791, 1 AD Cas. (BNA) 1026 (1987), the United
States Supreme Court considered the case of an elementary school
teacher who had been discharged because she had experienced a
recurrence of tuberculosis. The Supreme Court found that the
tuberculosis, which had affected the teacher's respiratory
system, constituted an impairment. 480 U.S. at 281, 42 EPD at
45,635, 1 AD Cas. at 1029. In so doing, the Court rejected the
argument that the contagious effects of a condition (i.e., the
effects of the condition on others) could be distinguished from
the effects of the condition on the carrier. 480 U.S. at 282, 42
EPD at 45,636, 1 AD Cas. at 1029-30.
The legislative history to the ADA expressly provides
that infection with the Human Immunodeficiency Virus (HIV) is an
impairment under the Act. Senate Report at 22; House Education
and Labor Report at 51; House Judiciary Report at 28. Thus, for
the purposes of the ADA, an individual with HIV infection has an
impairment.18
(e) Voluntariness -- Voluntariness is irrelevant
when determining whether a condition constitutes an impairment.
For example, an individual who develops lung cancer as a result
of smoking has an impairment, notwithstanding the fact that some
apparently volitional act of the individual may have caused the
impairment. The cause of a condition has no effect on whether
that condition is an impairment. See House Judiciary Report at
29 (noting that "[t]he cause of a disability is always irrelevant
to the determination of disability"); see also Cook v. Rhode
Island Dep't of Mental Health, Retardation and Hosp., 10 F.3d 17,
63 EPD Par. 42,673, 2 AD Cas. (BNA) 1476 (1st Cir. 1993).
Further, the voluntary use of a prosthetic device or other
mitigating measure to correct or to lessen the effects of a
condition also has no bearing on whether that condition is an
impairment. See § 902.5, infra.
902.3 Major Life Activities
(a) General -- For an impairment to rise to the
level of a disability, it must substantially limit, have
previously substantially limited, or be perceived as
substantially limiting, one or more of a person's major life
activities. There has been little controversy about what
constitutes a major life activity. In most cases, courts have
simply stated that an impaired activity is a major life activity.
In general, major life activities "are those basic activities
that the average person in the general population can perform
with little or no difficulty." 29 C.F.R. pt. 1630 app. §
1630.2(i).
(b) Regulatory Definition -- Commission
regulations define the term "major life activities" to mean
"functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working." 29 C.F.R. § 1630.2(i); see also Senate Report at
22; House Education and Labor Report at 52; House Judiciary
Report at 28.
This list is not an exhaustive list of all major life
activities. Instead, it is representative of the types of
activities that are major life activities. Specific activities
that are similar to the listed activities in terms of their
impact on an individual's functioning, as compared to the average
person, also may be major life activities. Thus, as the
interpretive appendix to the regulations notes, "other major life
activities include, but are not limited to, sitting, standing,
lifting, [and] reaching." 29 C.F.R. pt. 1630 app. §
1630.2(i). Mental and emotional processes such as thinking,
concentrating, and interacting with others are other examples of
major life activities.19
(c) Judicial Interpretations -- Courts
interpreting the Rehabilitation Act of 1973 also have found that
other activities constitute major life activities. Such major
life activities include sitting and standing, Oesterling v.
Walters, 760 F.2d 859, 861, 36 EPD Par. 35,201 at 37,485, 1 AD
Cas. (BNA) 722, 723 (8th Cir. 1985); and reading, Pridemore v.
Rural Legal Aid Society, 625 F. Supp. 1180, 1183-84, 40 EPD Par.
36,184 at 42,659, 2 AD Cas. (BNA) 382, 384 (S.D. Ohio 1985) (mild
cerebral palsy affected, but did not substantially limit,
plaintiff's ability to read); see also DiPompo v. West Point
Military Academy, 708 F. Supp. 540, 549, 50 EPD Par. 39,182 at
58,435 (S.D.N.Y. 1989).
902.4 Substantially Limits
(a) General -- Unlike the term "major life
activities," the term "substantially limits" frequently requires
extensive analysis. The term "substantially limits" is a
comparative term that implies a degree of severity and duration.
The primary focus here is on the extent to which an impairment
restricts one or more of an individual's major life activities.
A secondary factor that may affect the analysis is the duration
of the impairment.20
When analyzing the degree of limitation, one must
remember that the determination of whether an impairment
substantially limits a major life activity can be made only with
reference to a specific individual. The issue is whether an
impairment substantially limits any of the major life activities
of the person in question, not whether the impairment is
substantially limiting in general. Thus, one must consider the
extent to which an impairment restricts a specific individual's
activities and the duration of that individual's impairment.
(b) Regulatory Definition -- Commission
regulations define the term "substantially limits" and outline
factors to consider when determining whether an impairment
substantially limits any of an individual's major life
activities. In that respect, the regulations state,
(1) The term "substantially limits" means:
(i) Unable to perform a major life activity
that the average person in the general population can perform; or
(ii) Significantly restricted as to the
condition, manner or duration under which an individual can
perform a particular major life activity as compared to the
condition, manner, or duration under which the average person in
the general population can perform that same major life activity.
(2) The following factors should be considered in
determining whether an individual is substantially limited in a
major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the
impairment; and
(iii) The permanent or long term impact, or the
expected permanent or long term impact of or resulting from the
impairment.
29 C.F.R. § 1630.2(j).
As the regulations make clear, a determination of
whether an impairment substantially limits any of an individual's
major life activities depends upon the extent, duration, and
impact of the impairment. The factors to consider when making
this determination will be discussed in more detail below.
(c) Extent to Which an Impairment Restricts a Major
Life Activity -- An impairment is substantially limiting when
it prevents an individual from performing a major life activity
or when it significantly restricts the condition, manner, or
duration under which an individual can perform a major life
activity. 29 C.F.R. § 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared
to the ability of the average person in the general population to
perform the activity. Id. The reference to the "average person"
does not "imply a precise mathematical 'average.'" 29 C.F.R. pt.
1630 app. § 1630.2(j).
Example 1 -- CP has a permanent knee impairment
that causes him pain when he walks for extended periods. He can
walk for ten miles at a time without discomfort, but he
experiences pain on the eleventh mile. CP's knee impairment does
not substantially limit his ability to walk. The average person
in the general population would not be able to walk for eleven
miles without experiencing some discomfort.
Example 2 -- CP, who has sickle cell anemia,
frequently experiences severe back and joint pain. As a result
of the sickle cell disease, CP often cannot walk for more than
very short distances. CP's impairment (sickle cell anemia)
substantially limits his ability to walk. The average person in
the general population can walk for more than very short
distances. (Note that allegations of employment discrimination
based on sickle cell anemia also may be covered by Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e. See EEOC
Dec. No. 81-8, 1983 EEOC Decisions (CCH) Par. 6764 (Nov. 18,
1980).)
Further, the limitation must be substantial, rather
than minor. Not every impairment affects an individual's life to
the extent that it is a substantially limiting impairment. A
minor impairment, such as an infected finger, is not a
disability. Senate Report at 23; House Education and Labor
Report at 52.
Most of the discussion and analysis of the concept of
substantial limitation has focused on its meaning as applied to
the major life activity of working. This is largely because
there has been little dispute about what is meant by such terms
as "breathing," "walking," "hearing," or "seeing" but much
dispute about what is meant by the term "working." Consequently,
the determination of whether a person's impairment is
substantially limiting should first address major life activities
other than working. If it is clear that a person's impairment
substantially limits a major life activity other than working,
then one need not determine whether the impairment substantially
limits the person's ability to work. See 29 C.F.R. pt. 1630 app.
§ 1630.2(j). On the other hand, if an impairment does not
substantially limit any of the other major life activities, then
one must determine whether the person is substantially limited in
working. See id.
For example, if an individual's arthritis makes it
unusually difficult (as compared to most people or to the average
person in the general population) to walk, then the individual is
substantially limited in the ability to walk. In that case, one
would not need to ascertain whether the individual is also
substantially limited in working. If, however, it was not clear
whether the person's impairment substantially limited his/her
ability to walk (or to perform other major life activities), then
one would have to analyze whether the impairment substantially
limited the person's ability to work.
(1) Substantial Limitation of Major Life
Activities Generally -- In most cases, a careful, case-by-
case analysis is necessary to determine whether an impairment
substantially limits any of a person's major life activities.
This analysis focuses on the individual in question and analyzes
whether the individual's impairment is substantially limiting for
that individual.
The key here is the extent to which the impairment
restricts a major life activity. If there is no showing that the
impairment significantly restricts a major life activity, then
the impairment is not a disability. Thus, an individual who
alleged that he had asthma but did not even assert that the
asthma substantially limited a major life activity did not
establish that he was an individual with a disability. Harris v.
Adams, 873 F.2d 929, 933, 50 EPD Par. 38,973 at 57,217, 1 AD Cas.
(BNA) 1475, 1477 (6th Cir. 1989). Similarly, an employee failed
to establish that he was an individual with a disability when he
presented no credible evidence to establish that his sinusitis
and hypertension substantially limited major life activities.
Thomas v. General Services Administration, 49 Fair Empl. Prac.
Cas. (BNA) 1602, 1607, 51 EPD Par. 39,221 at 58,685 (D.D.C.
1989).
The investigator, therefore, should conduct a careful
analysis of whether a charging party's impairment substantially
limits one or more major life activities. The investigator
should conduct this analysis even if the charging party does not
make a specific allegation that his/her impairment is
substantially limiting. (For guidance on how to conduct this
analysis, refer to the suggestions for investigators at the end
of this subsection, infra.)
Example -- CP alleges that her employer
discriminated against her on the basis of disability. She
defines her disability as a "knee injury." When the investigator
asks how the injury affects her, CP responds, "I don't know."
She provides no information in response to the investigator's
inquiries about the extent to which the injury restricts her
ability to walk or to perform any other activities. There is no
showing that the knee injury limits CP in any way. As a result,
there is no evidence that CP's knee injury substantially limits
one or more of her major life activities.
To rise to the level of a disability, an impairment
must significantly restrict an individual's major life
activities. Impairments that result in only mild limitations are
not disabilities. Thus, a mild case of varicose veins that
moderately affect an individual's ability to stand and to sit is
not a disability. Oesterling v. Walters, 760 F.2d 859, 861, 36
EPD Par. 35,201 at 37,485, 1 AD Cas. (BNA) 722, 723-24 (8th Cir.
1985). Similarly, a "borderline" case of cerebral palsy that
only slightly interferes with an individual's ability to read
(because of poor control over ocular muscles) and to speak also
is not a disability. Pridemore v. Rural Legal Aid Society, 625
F. Supp. 1180, 1183-84, 40 EPD Par. 36,184 at 42,659, 2 AD Cas.
(BNA) 382, 384 (S.D. Ohio 1985). In both instances, impairments
may affect major life activities, but they do not substantially
restrict those activities.
One of the reasons an individualized approach is
necessary is because the same types of impairments often vary in
severity and often restrict different people to different degrees
or in different ways.
The determination of whether an individual has a disability
is not necessarily based on the name or diagnosis of the
impairment the person has, but rather on the effect of that
impairment on the life of the individual. Some impairments may
be disabling for particular individuals but not for others,
depending on the stage of the disease or disorder, the presence
of other impairments that combine to make the impairment
disabling or any number of other factors.
29 C.F.R. pt. 1630 app. § 1630.2(j). For example, the
plaintiff in Perez v. Philadelphia Housing Authority, 677 F.
Supp. 357, 1 AD Cas. (BNA) 1170 (E.D. Pa. 1987), aff'd, 841 F.2d
1120, 2 AD Cas. (BNA) 1104 (3d Cir. 1988), sustained a back
injury that resulted in considerable pain. The evidence
indicated that the plaintiff's back pain restricted "her ability
to walk, sit, stand, drive, care for her home and child, and
engage in leisure pastimes." 677 F. Supp. at 360, 1 AD Cas. at
1173. As a result, the court found that the plaintiff was an
individual with a disability. 677 F. Supp. at 360-61, 1 AD Cas.
at 1173. In another case, however, a court determined that a
general laborer who had sustained a back injury was not an
individual with a disability. Fuqua v. Unisys Corp., 716 F.
Supp. 1201 (D. Minn. 1989) (applying state law similar to
Rehabilitation Act). The plaintiff in that case had been able to
continue an active life that included weight lifting and other
recreational activities. Id. at 1203. In addition, he had
obtained alternative employment as a security guard and had not
been significantly restricted in employment. Id. Accordingly,
the court found that the plaintiff's back injury did not rise to
the level of a disability. Id. at 1206.
Example 1 -- CP has a mild form of Type II, non-
insulin-dependent diabetes. She does not need to take insulin or
other medication, and her physician has placed no significant
restrictions on her activities. Instead, her physician simply
has advised CP to maintain a well balanced diet and to reduce her
consumption of foods that are high in sugar or starch. Although
diabetes often substantially limits an individual's major life
activities, CP's diabetes does not substantially limit any of her
major life activities. It has only a moderate effect on what she
eats, and it does not restrict her in any other way.
Example 2 -- Same as Example 1, above, except
CP's condition requires CP to follow a strict regimen. She must
adhere to a stringent diet, eat meals on a regular schedule, and
ensure a proper balance between her caloric intake and her level
of physical activity. A change of routine, such as a high-
calorie meal or unexpected strenuous exercise, could result in
blood-sugar levels that are dangerously high or low. CP's
condition significantly restricts how she functions in her day-
to-day life. CP, therefore, has an impairment (diabetes) that
substantially limits one or more of her major life activities.
In very rare instances, impairments are so severe that
there is no doubt that they substantially limit major life
activities. In those cases, it is undisputed that the
complainant is an individual with a disability. Thus, courts
accepted without discussion that a person was an individual with
a disability when the impairment was insulin-dependent diabetes,
Bentivegna v. United States Department of Labor, 694 F.2d 619,
621, 30 EPD Par. 33,211 at 27,791, 1 AD Cas. (BNA) 403, 405 (9th
Cir. 1982); legal blindness, Norcross v. Sneed, 755 F.2d 113, 36
EPD Par. 35,006, 1 AD Cas. (BNA) 689 (8th Cir. 1985); deafness,
Davis v. Frank, 711 F. Supp. 447, 453, 50 EPD Par. 39,157 at
58,339 (N.D. Ill. 1989), manic depressive syndrome, Gardner v.
Morris, 752 F.2d 1271, 35 EPD Par. 34,906, 1 AD Cas. (BNA) 673
(8th Cir. 1985), and alcoholism, Whitlock v. Donovan, 598 F.
Supp. 126, 129, 35 EPD Par. 34,815 at 35,533, 1 AD Cas. (BNA)
630, 632 (D.D.C. 1984), aff'd sub nom. Whitlock v. Brock, 790
F.2d 964, 1 AD Cas. (BNA) 1050 (D.C. Cir. 1986). Further,
according to the legislative history, an individual who has HIV
infection (including asymptomatic HIV infection) is an individual
with a disability. Senate Report at 22; House Education and
Labor Report at 52; House Judiciary Report at 28 n.18; see also
Doe v. Kohn Nast & Graf, 862 F. Supp. 1310, 1321, 3 AD Cas. (BNA)
879, 885 (E.D. Pa. 1994); Doe v. District of Columbia, 796 F.
Supp. 559, 59 EPD Par. 41,656, 2 AD Cas. (BNA) 197 (D.D.C. 1992);
Memorandum from Douglas W. Kmiec, Acting Assistant Attorney
General, to Arthur B. Culvahouse, Jr., Counsel to President
Reagan, 8 Fair Empl. Prac. Manual (BNA) No. 641, at 405:1 (Sept.
27, 1988); Federal Contract Compliance Manual App. 6D, 8 Fair
Empl. Prac. Manual (BNA) No. 694, at 405:352 (Dec. 23, 1988).
Just as medical documentation submitted by a charging
party is relevant to determining whether the charging party has
an impairment, see supra § 902.2(b), it also is a good
starting point for determining the extent to which a physical or
mental impairment limits any of the charging party's major life
activities. Such documentation often describes the restrictions
that the impairment places on the charging party. For example,
the documentation may state that the charging party cannot lift
objects weighing more than a few pounds, cannot walk unassisted,
or cannot hear at all. On the other hand, the documentation may
state that the charging party's impairment results in only
minimal limitations. The investigator should ask the charging
party for copies of medical statements that describe the charging
party's restrictions. In addition, the investigator should ask
the respondent for copies of relevant medical documentation in
the respondent's possession. Such documentation may include
medical information that accompanied a request for light or
limited duty as well as information obtained through fitness-for-
duty examinations conducted or ordered by the respondent. If the
investigator requests the information directly from a third
party, rather than from the charging party or the respondent,
then the investigator should obtain a signed medical release from
the charging party and should submit the release with the
request.
Although medical documentation can provide important
information about the restrictions that an impairment places on
an individual, the investigator should not rely solely on this
information. The investigator should obtain other available
relevant information that describes the restrictions resulting
from the impairment. In this regard, it is essential that the
investigator obtain a statement in which the charging party
describes the nature of his/her condition and explains how the
condition limits his/her performance of major life activities.
In addition, the investigator should obtain statements from other
persons who have direct knowledge of the individual's
restrictions. For example, persons such as friends and family
members, supervisors, rehabilitation counselors, and occupational
or physical therapists may be able to describe the restrictions
that the individual's impairment places on the individual.
Further, the investigator's own observations of the charging
party may supply or confirm information about the charging
party's restrictions.
The information that the investigator obtains should be
specific. For example, it is insufficient for the charging party
merely to state that his/her condition interferes with the
ability to walk. The charging party should explain the extent of
the interference; that is, the charging party should provide such
information as whether the condition prevents him/her from
walking at all, whether (s)he can walk under certain conditions,
and whether (s)he can walk for short or long distances and
periods.
(2) Substantial Limitation of Major Life
Activity of Working -- As noted previously, supra,
one need not determine whether an impairment substantially limits
an individual's ability to work if the impairment substantially
limits another major life activity. If the individual is not
substantially limited with respect to any other major life
activity, then one should consider whether the individual is
substantially limited in working.
The Commission has provided regulatory guidance for
determining whether an impairment substantially limits an
individual in the major life activity of working. The regulation
states,
(3) With respect to the major life activity of
working--
(i) The term substantially limits means
significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes as compared
to the average person having comparable training, skills and
abilities. The inability to perform a single, particular job
does not constitute a substantial limitation in the major life
activity of working.
(ii) In addition to the factors listed in
paragraph (j)(2) of this section, the following factors may be
considered in determining whether an individual is substantially
limited in the major life activity of "working":
(A) The geographical area to which the
individual has reasonable access;
(B) The job from which the individual has been
disqualified because of an impairment, and the number and types
of jobs utilizing similar training, knowledge, skills or
abilities, within that geographical area, from which the
individual is also disqualified because of the impairment (class
of jobs); and/or
(C) The job from which the individual has been
disqualified because of an impairment, and the number and types
of other jobs not utilizing similar training, knowledge, skills
or abilities, within that geographical area, from which the
individual is also disqualified because of the impairment (broad
range of jobs in various classes).
29 C.F.R. § 1630.2(j)(3) (emphasis in the original).
As the regulation makes clear, an impairment that
prevents an individual from working at one particular job,
because of circumstances or materials unique to that job, does
not substantially limit that individual's ability to work. See
House Judiciary Report at 29. A person is not substantially
limited in the ability to work simply because (s)he cannot
perform one particular job for one particular employer. See E.E.
Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1099, 24 EPD Par.
31,260 at 17,650, 1 AD Cas. (BNA) 220, 229 (D. Hawaii 1980).
Rather, an individual is substantially limited in working if
(s)he is prevented or significantly restricted (when compared to
the average person having similar qualifications) from performing
a class of jobs or a wide range of various jobs. See id.; see
also 29 C.F.R. § 1630.2(j)(3).
In E.E. Black, an apprentice carpenter was denied
employment after a preemployment physical examination disclosed a
congenital back anomaly. The court held that the term
"substantial limitation" means more than an inability to perform
one particular job but less than a general inability to work. It
suggested that the evaluation of whether an individual is
substantially limited in working focus on such factors as the
number and type of jobs from which the individual is disqualified
and the geographical area to which the individual has reasonable
access. 497 F. Supp. at 1099-1101, 24 EPD at 17,650-52, 1 AD
Cas. at 229-30.
These criteria, when read together, indicate that an
impairment is a substantial limitation to working if it
disqualifies an individual from a class of jobs or a broad range
of jobs in various classes. For example, a charging party is
substantially limited in working if (s)he has a back impairment
that precludes him/her from heavy lifting and, therefore, from
the class of heavy labor jobs. See 497 F. Supp. at 1102, 24 EPD
at 17,652, 1 AD Cas. at 231. Conversely, a postal clerk with a
mild case of crossed eyes that caused him to develop eye strain
and headaches after operating a particular machine that required
detailed eye work was not substantially limited in working.
Jasany v. United States Postal Service, 755 F.2d 1244, 1250, 36
EPD Par. 35,070 at 36,835, 1 AD Cas. (BNA) 706, 710 (6th Cir.
1985). Unlike the charging party in the first example, this
complainant did not have an impairment that precluded him from
performing any other job or duty within a class of jobs. In
fact, the parties agreed that his impairment had not affected his
past work history or his ability to perform other duties at the
post office. Id. The impairment had limited only his ability to
perform this one particular job and perhaps a narrow range of
like jobs. For the same reason, an individual whose vision
impairment and high-tone hearing loss disqualified him from a
position as a detention deputy but did not disqualify him from
other positions (e.g., corrections officer) was not substantially
limited in working. See State v. Hennepin County, 441 N.W.2d
106, 51 EPD Par. 39,383, 1 AD Cas. (BNA) 1490 (Minn. 1989)
(applying state law with same definition of "disability").
Example 1 -- CP is a computer programmer. She
develops a vision impairment that does not substantially limit
her ability to see but does prevent her from distinguishing
characters on computer screens (without reasonable
accommodation). As a result, she cannot perform any work that
requires her to read characters on computer screens. Her vision
impairment prevents her from working as a computer programmer, a
systems analyst, a computer instructor, and a computer operator.
CP is substantially limited in working because her impairment
prevents her from working in the class of jobs requiring use of a
computer.
Example 2 -- Same as Example 1, above, except
CP's vision impairment does not interfere with her ability to
distinguish characters on most computer screens. It does prevent
her, however, from distinguishing characters on the peculiar type
of computer screens that R uses. Although CP cannot work with
the unique screens that R uses, she can work with other computer
screens. CP, therefore, is not substantially limited in working.
Her impairment prevents her from being a computer programmer for
one particular employer (R), but it does not prevent her from
performing similar jobs for other employers.
Impairments that preclude an individual from performing
a broad range of jobs in various classes also may substantially
limit the major life activity of working. For example, an
individual could be substantially limited in working if (s)he has
a severe allergy to a substance found in many high-rise office
buildings. If the allergy prevents the individual from working
in many of the high-rise office buildings in the geographical
area to which the individual has reasonable access, then the
individual is substantially limited in working. This is so
because a great number of positions within many classes of jobs
would be performed in those buildings. 29 C.F.R. pt. 1630 app.
§ 1630.2(j).
By contrast, a severe allergy to the peculiar type or
amount of dust found within one office is not an impairment that
substantially limits the ability to work. Wright v. Tisch, 45
Fair Empl. Prac. Cas. (BNA) 151, 1 AD Cas. (BNA) 1157 (E.D. Va.
1987). In Wright, the court determined that a complainant's
inability to tolerate the dusty environment in the unit where she
worked did not constitute a disability. 45 Fair Empl. Prac. Cas.
at 152-53, 1 AD Cas. at 1158. The court noted that none of the
complainant's other work activities was affected by her allergy.
45 Fair Empl. Prac. Cas. at 152, 1 AD Cas. at 1158. It also
noted that the complainant's allergy did not restrict her from
working in other offices with dust and that she had, in fact,
worked in the presence of dust in other offices within the
agency. Id.
Example 1 -- CP has a hearing impairment that
only mildly affects his ability to hear. The impairment,
however, makes CP extremely sensitive to very loud noises. CP
experiences severe pain when he is exposed to loud noises for
more than a brief period. Because of this sensitivity, CP cannot
work in environments where noise levels routinely exceed a
certain decibel level. As a result, R refused to hire CP for a
welder's position. Further, CP could not work in carpentry or
auto repair shops and could not be a heavy equipment operator, a
demolitions expert, or a member of an airport ground crew. CP's
impairment, therefore, prevents CP from working in a broad range
of jobs in various classes. Accordingly, CP has an impairment
that substantially limits his ability to work.
Example 2 -- CP has a hearing impairment that
does not significantly restrict his ability to hear but does make
him very sensitive to sound at one particular pitch. CP works on
an assembly line at an automobile plant in an area that has
several such plants. His employer has installed a new conveyor
belt that has a unique whistle that sounds approximately every
ten minutes, every time the conveyor belt stops and starts. CP
experiences severe pain in his ears whenever the whistle sounds.
As a result, CP can no longer work at that plant. CP's
impairment, however, does not substantially limit his ability to
work. Although the impairment prevents him from performing this
particular job for this particular employer, it does not prevent
him from performing similar jobs for other employers in his
geographical area.
Example 3 -- CP has an impairment that requires
radiation therapy, which results in an abnormal rate or degree of
exhaustion. CP becomes very tired very easily and cannot engage
in continuous activity for long periods. Assume that CP's
impairment does not substantially limit her ability to perform
any major life activity other than working. As a result of the
impairment, however, CP cannot work more than four hours per day.
This prevents CP from working in all jobs requiring full-time
work. Since those jobs constitute a wide range of jobs in
various classes, CP is substantially limited in working. (A
reasonable accommodation of a part-time or modified work schedule
might enable CP to work in a number of jobs from which she
otherwise would be excluded. When determining whether an
impairment is substantially limiting, however, one does not
consider the ameliorative effects of reasonable accommodation or
other mitigating measures. See § 902.5, infra.)
As the Commission's regulation notes, a number of
factors may help to determine whether an individual is
substantially limited in working. 29 C.F.R. §
1630.2(j)(3)(ii). Although a showing with respect to each factor
is not a required element of proof, information relating to the
factors is relevant to whether an individual is significantly
restricted in the ability to perform a class of jobs or a broad
range of jobs in various classes. Thus, information about the
geographical area to which an individual has access and the
number and types of jobs from which an individual is disqualified
because of his/her impairment may be considered when determining
whether an impairment substantially limits the individual's
ability to work. See id.
The reference to the "number and types" of jobs is not
meant to require an onerous evidentiary showing. 29 C.F.R. pt.
1630 app. § 1630.2(j). The reference does not mean that an
individual must identify the exact number of jobs using similar
or dissimilar skills in a certain geographic area. Further, the
reference does not mean that an individual must count positions
or otherwise present a precise number of jobs from which (s)he is
disqualified because of an impairment. Instead, the reference to
the "number and types" of jobs "only require[s] the presentation
of evidence of general employment demographics and/or of
recognized occupational classifications that indicate the
approximate number of jobs (e.g., 'few,' 'many,' 'most') from
which an individual would be excluded because of an impairment."
Id. Furthermore, in cases where it is clear that an individual
is excluded from a class of jobs or a broad range of jobs in
various classes, only minimal evidence will be required.
An assessment of whether an impairment substantially
limits an individual's ability to work focuses on whether the
individual is significantly restricted in the ability to perform
a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training,
skills, and abilities. 29 C.F.R. § 1630.2(j)(3)(i). For
example, suppose that an individual has an impairment that
interferes with his/her ability to work in the class of clerical
jobs. The individual is substantially limited in working if
(s)he is significantly restricted in performing clerical work as
compared to the average person having comparable clerical skills.
Thus, if the individual has clerical skills and training and the
impairment prevents him/her from performing many of the clerical
jobs that the average person with comparable clerical skills can
perform, then the individual is substantially limited in working.
On the other hand, if the individual wants to work as a clerk but
has no clerical skills or training, then (s)he is substantially
limited in working only if the impairment significantly restricts
his/her ability to work in the clerical class as compared to the
ability of the average person with a similar lack of clerical
skills. (It is likely in that case that the average person with
a lack of clerical skills can perform only a limited number of
clerical jobs and that the individual is not significantly
restricted when compared to the average person.)
The investigator often can begin to obtain information
relevant to a determination of whether the charging party's
impairment significantly restricts his/her ability to perform
either a class of jobs or a broad range of jobs in various
classes from: a position description of the job at issue, the
respondent's explanation of the requirements of the job, and the
charging party's description of his/her qualifications and
his/her experience in similar positions. This information, which
helps to identify the skills relevant to the job, may be useful
in identifying other jobs using similar or dissimilar skills. In
addition, the investigator should attempt to determine the number
and types of jobs in the geographical area from which the
charging party is disqualified because of the impairment.
Information about other jobs where the charging party has worked,
or for which the charging party has or has not applied, may be
relevant to this inquiry. For example, other employers may have
refused to employ the charging party because of his/her
impairment, or the charging party may not have applied for
certain jobs because the impairment disqualified him/her from
those jobs. Similarly, an employment agency or an employment
counselor may have told the charging party that the impairment
prevents him/her from working in certain jobs. On the other
hand, the fact that the charging party performed certain jobs
successfully may indicate that the impairment -- if it existed at
the time that the charging party performed those jobs -- does not
disqualify him/her from that type of work.21
(d) Duration and Impact of Impairment -- One of
the factors that may be relevant to whether an
impairment is substantially limiting is the duration of the
impairment. The length of time that an impairment affects major
life activities may help to determine whether the impairment
substantially limits those activities. As with all other
matters, the determination must be made on a case-by-case basis.
There are no set time limits for determining whether an
impairment is of sufficient duration to be considered
substantially limiting. There are, however, a few basic
guidelines.
Generally, conditions that last for only a few days or
weeks and have no permanent or long-term effects on an
individual's health are not substantially limiting impairments.
Examples of such transitory conditions are common colds,
influenza, and most broken bones and sprains. The mere fact that
an individual may have required absolute bed rest or
hospitalization for such a condition does not alter the
transitory nature of the condition. Even the necessity of
surgery, without more, is not sufficient to raise a short-term
condition to the level of a disability. Thus, for example, an
employee who had an undisclosed temporary illness that required
exploratory surgery but who was expected to recover completely in
six to eight weeks did not have an impairment that substantially
limited major life activities. Stevens v. Stubbs, 576 F. Supp.
1409, 1 AD Cas. (BNA) 546 (N.D. Ga. 1983). In that case, a
temporary illness with no permanent effects on the individual's
health was not a substantially limiting impairment. 576 F. Supp.
at 1414, 1 AD Cas. at 549-50. Similarly, an employee who
incurred a knee injury that required surgery was not an
individual with a disability. Evans v. City of Dallas, 861 F.2d
846, 49 EPD Par. 38,674, 1 AD Cas. (BNA) 1394 (5th Cir. 1988).
Although the injury may have limited the employee's major life
activities during his recuperation, it did not continue to do so
after his recuperation. See 861 F.2d at 852-53, 49 EPD at
55,700, 1 AD Cas. at 1398-99 (quoting district court opinion).
For the same reason, an attack of appendicitis accompanied by a
"routine" appendectomy would not constitute a disability. The
condition might restrict an individual's activities for a few
days or weeks, but the restrictions would be only temporary.
Example 1 -- CP has laryngitis. It is very
painful for her to speak, and she cannot talk above a whisper
when she does speak. Her physician has prescribed medication for
her, has instructed her to drink plenty of fluids, and has
advised her to stay home from work. She should be fully
recovered within seven to ten days. CP does not have a
disability. Although the laryngitis significantly restricts her
ability to speak, it does so only on a very short-term basis and
has no long-lasting or permanent effects on CP.
Example 2 -- CP sustains a compound fracture of
her arm and must undergo surgery to set the bone. She is
hospitalized for one week and will have a cast on her arm for
five additional weeks. During these six weeks, CP must wear a
sling and must keep her arm immobilized. She will have full use
of her arm after the cast is removed. CP's broken arm is not a
disability. Instead, it is a short-term, temporary impairment
with no long-lasting or permanent effects.
Although short-term, temporary restrictions generally
are not substantially limiting, an impairment does not
necessarily have to be permanent to rise to the level of a
disability. Some conditions may be long-term, or potentially
long-term, in that their duration is indefinite and unknowable or
is expected to be at least several months. Such conditions, if
severe, may constitute disabilities. Thus, a person who has been
blinded or paralyzed but is expected to recover fully
"eventually" is an individual with a disability, despite the
prognosis for full recovery at some indeterminable time in the
future.
Example 1 -- CP has nodes on his vocal chords.
His doctor has told CP that he must rest his vocal chords and
that he will lose his ability to speak unless he refrains from
talking for more than one hour per day for the next one-and-one-
half years. If CP follows his doctor's advice, his vocal chords
will heal and he will have full use of his voice. CP, whose
impairment will last for many months and will significantly
restrict his ability to speak during that time, has a disability.
Example 2 -- CP recently was released from the
hospital following a ten-month stay for treatment for a mood
disorder. The disorder significantly restricted CP's ability to
interact with people and to care for herself. She will require
two months of daily treatment, on an out-patient basis, to ensure
that she can deal with people on a day-to-day basis and then four
to six months of less intensive out-patient treatment. Her
doctor anticipates that CP will be fully recovered when she
completes her treatment. CP has a disability. Although her
impairment (a mood disorder) is not permanent, it is long lasting
and has significantly restricted her major life activities for an
extended period (at least ten months during her hospitalization
and possibly for the two months of intensive out-patient
treatment).
Example 3 -- CP recently was diagnosed as having
Guillain-Barre syndrome, a neurological disorder of unknown
origin. As a result of the condition, she cannot walk. Her
doctor has told her that she must undergo extensive
rehabilitation and that the rehabilitation period will last for
several months. The doctor tells CP that there is a good chance
that she will regain total use of her legs after she completes
her rehabilitation. CP has a disability because she has an
impairment (Guillain-Barre syndrome) that substantially limits
her ability to walk. The impairment prevents CP from walking,
and it will be at least several months before she will be able to
walk again. Although CP is expected to recover at some point in
the future, her restrictions are significant and long-lasting.
Example 4 -- CP fractured her left ankle as the
result of a skiing accident. Immediately after the accident, she
underwent surgery on her ankle. She was hospitalized for one
week and has been using crutches for two weeks. Her physician
has directed her to use crutches for another two weeks, after
which time she should be able to walk unaided. Her prognosis for
a full recovery is excellent. CP does not have an impairment
that substantially limits her major life activities. Although
her ankle injury has restricted her ability to walk, it has done
so for only a relatively short time (five weeks). The injury is
a transitory impairment that has no long-term effects on CP.
Example 5 -- Same as Example 4, above, except
the surgery was not successful. Although CP can now walk
unaided, she can do so only for three to five minutes without
experiencing excruciating pain. Her physician predicts that CP's
condition, which may improve at some point in the future, will
remain like this indefinitely. CP has an ankle impairment that
substantially limits her ability to walk. Most people can walk
for three to five minutes without pain. Although the condition
may not be permanent, it is long-term. CP is an individual with
a disability.
Sometimes a temporary impairment that usually is not
substantially limiting because it generally heals within a few
weeks will take longer than the normal healing period to heal.
In that case, the impairment may be substantially limiting if it
goes on for a long period and significantly restricts the
performance of a major life activity during that time. Thus, an
impairment that takes significantly longer than the normal
healing period to heal and prevents or significantly restricts
the performance of a major life activity for an extended time
during the healing process is a disability.
Example -- CP sustains a broken leg. Although
broken legs generally heal within a few months, CP's leg will
require eleven months to heal. CP will be unable to walk without
the use of crutches during the eleven-month healing period. CP,
whose impairment will take significantly longer than the normal
healing period to heal and will significantly restrict CP's
ability to perform a major life activity (walking) during the
healing period, has a disability.
In some cases, an impairment that appears to be
temporary may have residual effects. That is, the impairment may
have a long-term impact on an individual's ability to perform one
or more major life activities. For example, a person may sustain
an injury that heals but nonetheless leaves a permanent or long-
term residual effect. Although a short-term impairment that does
not have a long-lasting impact is not a disability, an impairment
that results in a long-term, substantial limitation is a
disability.
Example 1 -- CP sustained a head injury in an
automobile accident. He felt dizzy and disoriented immediately
after the accident and was hospitalized overnight for
observation. His doctor told him that x-rays revealed a slight
concussion but no permanent injury. He was released from the
hospital the next day, and he has experienced no side effects
from the injury. CP's head injury was not substantially
limiting. The impairment lasted for only a brief time and had no
permanent or long-term impact on CP's major life activities. CP,
therefore, does not have a disability.
Example 2 -- Same as Example 1, above, except CP
sustained a serious concussion that resulted in permanent brain
damage. Because of this, CP has a short-term memory deficit, has
trouble processing information, cannot concentrate, and has great
difficulty learning. CP's concussion resulted in long-term,
significant restrictions on his major life activities. CP,
therefore, has a disability.
Further, some chronic conditions may constitute
substantially limiting impairments. Such conditions may be
substantially limiting when active or may have a high likelihood
of recurrence in substantially limiting forms. In addition, such
conditions may require a substantial limitation of a major life
activity to prevent or to lessen the likelihood or severity of
recurrence. Some severe back problems and most forms of heart
disease and cancer fall into this category. This category also
includes illnesses, such as tuberculosis, that may lay dormant
for long periods but can reemerge at any time in a substantially
limiting manner. Similarly, episodic disorders, such as bipolar
disorder, which remit and then intensify also fall into this
category.
Finally, the duration of an impairment does not, by
itself, determine whether the impairment substantially limits an
individual's major life activities. It is just one factor to be
considered with all of the other relevant information. An
impairment may be long lasting or permanent but still not
constitute a substantial limitation to major life activities.
For example, a permanently injured finger is not substantially
limiting if it does not significantly restrict an individual's
ability to perform a major life activity such as performing
manual tasks or caring for oneself. Thus, when determining
whether an impairment substantially limits a major life activity,
one must consider the severity of the limitation caused by the
impairment as well as the duration of the limitation. An
impairment is substantially limiting if it lasts for more than
several months and significantly restricts the performance of one
or more major life activities during that time. It is not
substantially limiting if it lasts for only a brief time or does
not significantly restrict an individual's ability to perform a
major life activity.
In sum, relatively brief and transitory illnesses or
injuries that have no permanent or long-term effects on an
individual's major life activities are not disabilities.
Temporary impairments may be disabilities if they take
significantly longer than normal to heal and significantly
restrict the performance of major life activities during the
healing period. Similarly, long-term impairments, or potentially
long-term impairments of indefinite duration, may be disabilities
if they are severe. Chronic conditions that are substantially
limiting when active, and conditions with a high likelihood of
recurrence in substantially limiting form, also are disabilities.
Because the duration of an impairment may be relevant
to determining whether the impairment is a disability, the
investigator should ask the charging party how long (s)he has had
the impairment at issue. In addition, the investigator should
obtain copies of any available medical documentation that
indicates the length of time the charging party has had the
impairment, describes the long-term effects of the impairment, or
gives a prognosis for recovery.
(e) Multiple Impairments -- An individual may
have two or more impairments that are not substantially
limiting by themselves but that together substantially limit one
or more major life activities. In that situation, the individual
has a disability. "Multiple impairments that combine to
substantially limit one or more of an individual's major life
activities also constitute a disability." 29 C.F.R. pt. 1630
app. § 1630.2(j).
Example -- CP has a mild form of arthritis in
her wrists and hands and a mild form of osteoporosis (a reduction
in bone quantity). Neither impairment, by itself, would
significantly restrict any of CP's major life activities.
Together, however, the two impairments affect CP's manual
dexterity to such an extent that they significantly restrict her
ability to perform manual tasks. Thus, the combination of the
two impairments substantially limits one or more of CP's major
life activities. CP, therefore, has a disability.
902.5 Mitigating Measures -- The determination of whether a
condition constitutes an impairment must be made without regard
to mitigating measures. 29 C.F.R. pt. 1630 app. §
1630.2(h). The availability of reasonable accommodation or
auxiliary aids such as hearing aids to alleviate the effects of a
condition has no bearing on whether the condition is an
impairment. It is the scope or perceived scope of the condition
itself, not its origin or capacity for being corrected, that
determines whether a particular condition is an impairment.
Further, the extent to which the impairment limits the
individual's major life activities should be assessed without
regard to the availability of mitigating measures. 29 C.F.R. pt.
1630 app. § 1630.2(j); see also Senate Report at 23; House
Education and Labor Report at 52; House Judiciary Report at 28.
Thus, an individual who has experienced a significant loss of
hearing is substantially limited in his/her ability to hear, even
if the use of a hearing aid would improve the individual's level
of hearing. House Education and Labor Report at 52; see also
House Judiciary Report at 28-29. Similarly, individuals with
impairments (such as epilepsy or diabetes) that substantially
limit major life activities are individuals with disabilities,
even if medication controls the effects of the impairments.
House Education and Labor Report at 52; see also House Judiciary
Report at 28-29. Accordingly, an individual who received
dialysis treatments for polycystic kidney disease had a
substantially limiting impairment, even though the disease was
adequately treated through dialysis. Gilbert v. Frank, 949 F.2d
637, 641, 57 EPD Par. 41,106 at 68,909, 2 AD Cas. (BNA) 60, 63
(2d Cir. 1991) ("We are inclined to view persons whose kidneys
would cease to function without mechanical assistance, or whose
kidneys do not function sufficiently to rid their bodies of waste
matter without regular dialysis, as substantially limited in
their ability to care for themselves.")
Example 1 -- CP, who has schizophrenia, takes
medication to control the disorder. With medication, CP can
function well in his everyday life. Without medication, however,
CP cannot care for himself. CP has an impairment, schizophrenia,
that substantially limits his major life activities. Although CP
can function well with medication, he cannot care for himself
without medication.
Example 2 -- CP has systemic lupus, which often
results in acute anemia and arthritis-like symptoms. CP's
physician has prescribed medication to control the effects of the
disease. Without medication, CP is very lethargic, develops a
skin rash, and experiences severe swelling and stiffness in her
joints. With medication, CP experiences none of these symptoms.
CP has a disability. Her impairment, when evaluated without
regard to the effects of medication, substantially limits her
major life activities.
Example 3 -- CP's right leg was amputated below
the knee. Using a prosthesis, he can walk for a long distance
without discomfort. CP has an impairment that substantially
limits his ability to walk, even though he can walk with the use
of a prosthesis. CP is an individual with a disability.
Note, finally, that the mere use of a mitigating
measure does not automatically indicate the presence of a
disability. Some individuals may use medication, prosthetic
devices, or auxiliary aids to alleviate impairments that are not
substantially limiting. For example, an individual who uses a
hearing aid to correct a slight hearing impairment may not have a
disability under the first part of the definition of the term
"disability." The individual's impairment may only mildly affect
his/her hearing and may not substantially limit the individual's
ability to hear.
902.6 Statutory Exceptions to the Definition of "Disability"
-- The statute specifies that certain conditions are not
disabilities covered by the ADA. Since homosexuality and
bisexuality are not impairments, those conditions are not
disabilities. 42 U.S.C. § 12211(a); see also 29 C.F.R.
§ 1630.3(e). In addition, "the term 'individual with a
disability' does not include an individual who is currently
engaging in the illegal use of drugs, when the covered entity
acts on the basis of such use." 42 U.S.C. § 12210(a); see
also 29 C.F.R. § 1630.3(a). Further, the term "disability"
does not include
(1) transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting
from physical impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from
current illegal use of drugs.
42 U.S.C. § 12211(b); see also 29 C.F.R. § 1630.3(d).
The term "illegal use of drugs" refers to drugs whose
possession or distribution is unlawful under the Controlled
Substances Act, 21 U.S.C. § 812.22 It "does not include the
use of a drug taken under supervision by a licensed health care
professional, or other uses authorized by the Controlled
Substances Act or other provision of Federal law." 42 U.S.C.
§§ 12111(6)(A), 12110(d)(1); see also 29 C.F.R. §
1630.3(a)(2). The term does include, however, the unlawful use
of prescription controlled substances. 29 C.F.R. pt. 1630 app.
§ 1630.3(a)-(c).
The reference to a person "currently engaging" in the
illegal use of drugs does not mean that this exclusion is limited
to a person who illegally used drugs "on the day of, or within a
matter of days or weeks before, the employment action in
question." Id. Rather, the exclusion applies to any individual
whose "illegal use of drugs . . . has occurred recently enough to
indicate that the individual is actively engaged in such
conduct." Id. If an individual tests positive on a test for the
illegal use of drugs, the individual will be considered a current
drug user under the ADA where the test correctly indicates that
the individual is engaging in the current illegal use of a
controlled substance.
Although the ADA excludes individuals currently
engaging in the illegal use of drugs, it does not exclude
individuals who have a record of such use or who are erroneously
regarded as engaging in such use. 42 U.S.C. § 12110(b); see
also 29 C.F.R. § 1630.3(b). It is important to remember,
however, that an individual who has a record of the illegal use
of drugs or who is erroneously regarded as engaging in such use
is not automatically an individual with a disability. One still
must evaluate whether the record or erroneous perception pertains
to a substantially limiting impairment. Only addiction or
perceived addiction to a controlled substance meets this
standard. Occasional, casual illegal use of drugs does not
constitute a disability. Similarly, a record or perception of
such casual use does not constitute a disability. See Hartman v.
City of Petaluma, 841 F. Supp. 946, 949, 2 AD Cas. (BNA) 1860,
1862-63 (N.D. Cal. 1994) (ADA provisions "require some indicia of
dependence sufficient to substantially limit a major life
activity").
Example 1 -- Several years ago, CP was
hospitalized for treatment for a cocaine addiction. He has been
rehabilitated successfully and has not engaged in the illegal use
of drugs since receiving treatment. CP, who has a record of an
impairment that substantially limited his major life activities,
is covered by the ADA.
Example 2 -- Three years ago, CP was arrested
and convicted of the possession of cocaine. He had used the
substance occasionally, perhaps three or four times over a
sixteen-month period. CP has not used cocaine or any other
illegal drug since his arrest. CP is not covered by the ADA.
Although CP has a record of cocaine use, the use was not an
addiction and did not substantially limit any of CP's major life
activities.
Example 3 -- CP applies for a job with R, which
requires job applicants to undergo a test to determine the
current illegal use of drugs. CP's drug test falsely indicates
that CP is using cocaine. R's personnel manager informs CP that
the test came back positive for cocaine use and that R will not
hire CP because "we don't want drug addicts working here." CP is
not currently using cocaine and does not use any other drug
illegally. R, which erroneously regards CP as being addicted to
cocaine, erroneously regards CP as having a substantially
limiting impairment. CP, therefore, meets the definition of
"disability."
Example 4 -- Same as Example 3, above, except
the personnel manager tells CP that the test came back showing
marijuana use and that R will not hire CP because "we don't hire
anybody who uses drugs illegally." The personnel manager tells
the EEOC investigator that she did not hire CP because of R's
strict policy against hiring anyone who tests positive for the
illegal use of drugs and that she had not considered or been
concerned about the extent of CP's use. "All I know is that his
test showed marijuana use. I didn't think about anything beyond
that." Since there is no evidence that R regarded CP as being
addicted to marijuana, there is no evidence that R erroneously
regarded CP as having a substantially limiting impairment. CP,
therefore, does not meet the definition of disability.
A person who alleges disability based on one of the
excluded conditions is not an individual with a disability under
the ADA. Note, however, that a person who has one of these
conditions is an individual with a disability if (s)he has
another condition that rises to the level of a disability. See
House Education and Labor Report at 142. Thus, a compulsive
gambler who has a heart impairment that substantially limits
his/her major life activities is an individual with a disability.
Although compulsive gambling is not a disability, the
individual's heart impairment is a disability.
902.7 Record of an Impairment that Substantially Limits Major
Life Activities
(a) General -- The second part of the statutory
definition of the term "disability" applies to persons who have a
record of a substantially limiting impairment. This part covers
persons who have a history of, or have been classified or
misclassified as having, a physical or mental impairment that
substantially limits one or more major life activities. It
includes persons who have had a disabling impairment but have
recovered in whole or in part and are not now substantially
limited. It also includes persons who have been incorrectly
classified as having a disability. See 29 C.F.R. §
1630.2(k).
The legislative history of the ADA emphasizes that this
part of the definition is intended to prevent discrimination
against individuals who have been classified or labeled,
correctly or incorrectly, as having a disability. It also makes
clear that the coverage of the Act extends to persons who have
recovered, in whole or in part, from a disability but are
subjected to discrimination because of their history of a
substantially limiting impairment. Senate Report at 23; House
Education and Labor Report at 52-53; House Judiciary Report at
29.
When determining whether an individual is covered by
this part of the definition of the term "disability," one must
remember that the record at issue must be a record of an
impairment that substantially limited a major life activity. A
record of a condition that is not an impairment, or of an
impairment that was not substantially limiting, does not satisfy
this part of the definition. See Byrne v. Board of Educ., 979
F.2d 560, 566-67, 60 EPD Par. 41,862 at 73,020-21, 2 AD Cas.
(BNA) 284, 289-90 (7th Cir. 1992) (single hospital stay for
administration of allergy tests is not a record of a such an
impairment). Further, a record of a condition, such as
transvestism or compulsive gambling, that is specifically
excluded from ADA coverage also does not satisfy this part of the
definition. (Note, however, that a record of addiction to the
illegal use of drugs is a disability, even though current illegal
use of drugs is specifically excluded from ADA coverage. See
§ 902.6, supra.)
Example 1 -- For several years, CP was twenty-
to-thirty pounds beyond the target weight for men of his height
and bone structure. His condition did not rise to the level of
morbid obesity and did not cause or result from a physiological
disorder. Further, his condition did not restrict any of his
activities. CP recently completed a weight-loss program and is
now at his target weight. CP does not have a record of a
disability. He has a history of obesity, but his obesity was not
an impairment and did not substantially limit any of his major
life activities.
Example 2 -- CP was recently hospitalized for
appendicitis. She underwent a routine appendectomy, was
hospitalized for one week, and recovered fully within the normal
healing period. Although CP has a hospital record of treatment
for appendicitis, she does not have a record of a disability.
The appendicitis restricted CP's activities for only a brief
period and had no long-term or permanent effects on CP. The
impairment, therefore, did not substantially limit any of CP's
major life activities. As a result, CP does not have a history
of a disability and the hospital record does not constitute a
record of a disability.
Example 3 -- CP was convicted several times of
shoplifting. He received treatment for kleptomania and has
recovered from the condition. CP has a record of kleptomania,
but he does not have a record of a disability. Kleptomania is
specifically excluded from the statutory definition of the term
"disability."
An individual who has a record of a disability under
other laws or regulations does not necessarily have a record of a
disability for purposes of the ADA. Other laws may define the
term "disability" differently from the way the ADA defines the
term. See § 902.1(a), supra. The investigator, therefore,
should not assume that an individual who has been certified as
having a disability or a handicap for other purposes, such as
veterans programs, state vocational rehabilitation programs, or
disability retirement programs, also has a disability under the
ADA. The investigator, however, should obtain a copy of the
certification and other similar available documents. Such
certification is not dispositive for the purposes of the ADA, but
it may provide relevant information. For example, medical
information supporting the certification may be relevant to
whether the charging party has a "disability" under the ADA.
Further, the respondent's knowledge of and attitude toward the
certification may be relevant to whether the respondent regarded
the charging party as having a substantially limiting impairment.
See § 902.8, infra.
(b) History of Such an Impairment -- The term
"disability" covers persons who have recovered from substantially
limiting physical or mental impairments. Examples of persons who
would fall under this part of the definition of the term
"disability" include individuals who have histories of
substantially limiting forms of heart disease or mental or
emotional illness. Senate Report at 23; House Education and
Labor Report at 52-53.
In School Bd. of Nassau County v. Arline, 480 U.S. 273,
281, 42 EPD Par. 36,791 at 45,635, 1 AD Cas. (BNA) 1026, 1029
(1987), the United States Supreme Court stated that the
plaintiff's hospitalization for an acute form of tuberculosis, an
illness that had substantially limited one or more of the
plaintiff's major life activities, sufficed to establish a record
of a substantially limiting impairment.23 Similarly, a district
court found that an individual who had incurred four or five
shoulder dislocations prior to undergoing corrective surgery had
a "history" of a substantially limiting impairment. Mahoney v.
Ortiz, 645 F. Supp. 22, 24, 1 AD Cas. (BNA) 924, 925 (S.D.N.Y.
1986).
Example -- CP, who is thirty, had a severe form
of depression when he was in his early twenties. He lost his
appetite, could not sleep, was always tired, and rarely left his
home. The depression became so serious that he could not
function in day-to-day life. CP was hospitalized for four months
and then received therapy on an out-patient basis for six months.
The treatment was successful, and CP has had no recurrence of the
depression. Although CP does not currently have an impairment
that substantially limits a major life activity, he has a history
of such an impairment. CP, therefore, falls under the second
part of the definition of the term "disability."
(c) Misclassified as Having Such an Impairment --
The term "disability" covers persons who are not,
and may have never actually been, impaired but nonetheless have
been misclassified as having a disability. Thus, school or other
institutional documents labeling or classifying an individual as
having a substantially limiting impairment would establish a
"record" of a disability. Individuals who have been
misclassified by a school or a hospital as having mental
retardation or a substantially limiting learning disability would
be covered by this part of the definition of the term
"disability." See Senate Report at 23; House Education and Labor
Report at 52-53; House Judiciary Report at 29.
902.8 Regarded as Having a Substantially Limiting Impairment
(a) General -- The third part of the statutory
definition of the term "disability" applies to individuals who
are regarded as having impairments that substantially limit one
or more major life activities. This part covers persons who have
impairments that do not substantially limit major life activities
but are treated by covered entities as constituting substantially
limiting impairments. It also covers persons whose impairments
are substantially limiting only as the result of the attitudes of
others toward the impairment and persons who have no impairments
but nonetheless are treated as having substantially limiting
impairments. 29 C.F.R. pt. 1630 app. § 1630.2(l); see also
Senate Report at 23; House Education and Labor Report at 53.
The inclusion of persons regarded as having a
substantially limiting impairment reflects Congressional intent
to protect all persons who are subjected to discrimination based
on disability, even if they do not in fact have a disability. It
also reflects a recognition by Congress that the reactions of
others to an impairment or a perceived impairment can be just as
disabling as the limitations caused by an actual impairment. See
House Judiciary Report at 30. As noted in the legislative
history of the ADA (see Senate Report at 23-24; House Education
and Labor Report at 53; House Judiciary Report at 30), the United
States Supreme Court effectively explained the rationale for this
aspect of the definition of the term "disability" in School Bd.
of Nassau County v. Arline, 480 U.S. 273, 42 EPD Par. 36,791, 1
AD Cas. (BNA) 1026 (1987). The Court stated,
By amending the definition of "handicapped individual" to
include not only those who are actually physically impaired, but
also those who are regarded as impaired and who, as a result, are
substantially limited in a major life activity, Congress
acknowledged that society's accumulated myths and fears about
disability and disease are as handicapping as are the physical
limitations that flow from actual impairment.
480 U.S. at 284, 42 EPD at 45,637, 1 AD Cas. at 1030 (footnote
omitted).
This aspect of the definition of the term "disability,"
therefore, is designed to protect against myths, fears,
stereotypes, and other attitudinal barriers about disability.
Common attitudinal barriers include, but are not limited to,
"concerns about productivity, safety, insurance, liability,
attendance, cost of accommodation and accessibility, and
acceptance by co-workers and customers." House Judiciary Report
at 30. Quite often, employers will assume, without any objective
evidence, that a person's physical or mental condition will cause
problems in these areas. The ADA is designed to prevent
employment discrimination based on mere speculation and unfounded
fears about disability. Thus, the third part of the definition
is designed to protect individuals who experience employment
discrimination because of myths, fears, and stereotypes
associated with disabilities, even if the individuals' physical
or mental conditions do not meet the criteria of the first or
second part of the definition. Id.
In contrast to the first two parts of the statutory
definition of the term "disability," this part of the definition
is directed at the employer rather than at the individual
alleging discrimination. The issue is whether the employer
treats the individual as having an impairment that substantially
limits major life activities. Thus, as the legislative history
to the ADA notes, "[t]he perception of the covered entity is a
key element of this test." House Judiciary Report at 30.
Because it is the employer's perception that is at issue, it is
not necessary that the individual alleging discrimination
actually have a disability or an impairment. It also is not
necessary that the employer's perception of the individual be
shared by other employers. The individual is covered by this
part of the definition if (s)he can show that the employer "made
an employment decision because of a perception of disability
based on 'myth, fear or stereotype'. . . . If the employer
cannot articulate a non-discriminatory reason for the employment
action, an inference that the employer is acting on the basis of
'myth, fear or stereotype' can be drawn." 29 C.F.R. pt. 1630
app. § 1630.2(l); see also House Judiciary Report at 30-31.
The legislative history to the Act makes clear that the
individual does not have to demonstrate that the employer's
perception is wrong. As the legislative history notes,
A person who is covered because of being regarded as having
an impairment is not required to show that the employer's
perception is inaccurate, e.g., that he will be accepted by
others, or that insurance rates will not increase, in order to be
qualified for the job.
For example, many people are rejected from jobs because
a back x-ray reveals some anomaly, even though the person has no
symptoms of a back impairment. The reasons for the rejection are
often the fear of injury, as well as increased insurance or
worker's compensation costs. These reasons for rejection rely on
common barriers to employment for persons with disabilities and
therefore, the person is perceived to be disabled under the third
test.
House Judiciary Report at 31.
This part of the definition of "disability" applies to
individuals who are subjected to discrimination on the basis of
genetic information relating to illness, disease, or other
disorders. Covered entities that discriminate against
individuals on the basis of such genetic information are
regarding the individuals as having impairments that
substantially limit a major life activity. Those individuals,
therefore, are covered by the third part of the definition of
"disability." See 136 Cong. Rec. H4623 (daily ed. July 12, 1990)
(statement of Rep. Owens); id. at H4624-25 (statement of Rep.
Edwards); id. at H4627 (statement of Rep. Waxman).
Example -- CP's genetic profile reveals an
increased susceptibility to colon cancer. CP is currently
asymptomatic and may never in fact develop colon cancer. After
making CP a conditional offer of employment, R learns about CP's
increased susceptibility to colon cancer. R then withdraws the
job offer because of concerns about matters such as CP's
productivity, insurance costs, and attendance. R is treating CP
as having an impairment that substantially limits a major life
activity. Accordingly, CP is covered by the third part of the
definition of "disability."
To determine whether an employer regards an individual
as having an impairment that substantially limits major life
activities, one must examine the employer's perception and
treatment of the charging party. Toward that end, the
investigator may obtain a statement in which the respondent
explains his/her perceptions of the charging party's physical or
mental condition. The statement should describe the type of
condition that the respondent perceives the charging party to
have and the extent to which the respondent believes the
condition to limit the charging party's major life activities.
Further, if the charging party has been classified as having a
disability or handicap under another law or benefit program, then
the investigator may determine if the respondent was aware of the
classification and, if so, how the respondent interpreted the
classification. For example, if the charging party has a
veterans' disability rating, then the investigator may determine
whether the respondent was aware of that rating. The
investigator also may determine whether the respondent viewed the
rating as indicative of an impairment that substantially limited
a major life activity. A respondent might, for example, believe
that all individuals who have ten-percent veterans' disability
ratings are substantially limited in a major life activity. In
addition, the investigator may ascertain the information that the
employer had about the charging party's condition at the time of
the employment action at issue. Other information, such as
statements from other individuals in the work place or evidence
that the employer has a pattern of not hiring individuals with
the same or similar impairment, also may help to determine how
the employer perceived the charging party.
Further, the investigator should examine carefully the
employer's treatment of the charging party. An employer may
claim that it does not perceive an individual as having an
impairment that substantially limits a major life activity but
nonetheless may treat the individual as having such an
impairment. In such a case, actions may speak louder than words.
For example, an employer may assert that it does not regard an
individual as substantially limited in working but nonetheless
may treat an individual as having an impairment that disqualifies
him or her from a class of jobs or a broad range of jobs in
various classes. The employer in that case regards the
individual as substantially limited in the major life activity of
working. See § 902.8(f), infra.
The investigator should remember that a determination
that an employer regarded a charging party as having an
impairment that substantially limits a major life activity does
not automatically require a finding of discrimination. The
determination of whether the charging party is covered by the
third part of the definition of "disability" and the
determination of whether the respondent discriminated against the
charging party are two separate determinations. In each charge
involving the third part of the definition of "disability," the
investigator should engage in a careful evidentiary analysis to
determine whether the respondent (1) regarded the individual as
having a substantially limiting impairment and (2) acted on that
basis in violation of the ADA. Although the same facts may be
relevant to both determinations, a finding of coverage does not
necessarily lead to a finding of liability. An employer that
erroneously regards an individual as having a substantially
limiting impairment may nonetheless take an employment action for
a legitimate reason. For example, evidence may show that an
employer that gave an employee a low performance rating
erroneously regarded the employee as having AIDS. The evidence
also may show, however, that the employee's work objectively
warranted the rating, that other employees with comparable
performances received comparable ratings, and that the employer
has had employees who actually had AIDS and has never
discriminated against them on that basis. In that situation,
there is coverage but no liability.
(b) Regulatory Definition -- An individual is
covered by this part of the definition if (s)he
(1) [h]as a physical or mental impairment that does not
substantially limit major life activities but is treated by a
covered entity as constituting such limitation;
(2) [h]as a physical or mental impairment that
substantially limits major life activities only as a result of
the attitudes of others toward such impairment; or
(3) [h]as none of the impairments defined in [the
definition of the term "impairment"] but is treated by the
covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(l). Each of these three subparts of the
third part of the definition of the term "disability" is
discussed below in detail.
(c) Persons with Impairments Regarded as
Substantially Limiting -- This subpart of the regulatory
definition covers individuals who have impairments that do not
substantially limit major life activities but who are perceived
as being substantially limited. For example, an individual who
has a slight limp that does not substantially limit any major
life activities but who is rejected for employment because the
employer believes that the limp significantly restricts the
individual's ability to walk is covered by this part of the
definition. Although the individual's limp does not in fact
substantially limit major life activities, the employer perceives
the limp as substantially limiting the individual's ability to
walk. The individual meets the definition of an individual with
a disability because (s)he is regarded as having an impairment
that substantially limits his/her major life activity of walking.
Example -- CP has a mild form of strabismus
(crossed eyes). The impairment only slightly affects CP's
ability to see. CP's employer, however, thinks that the
impairment prevents CP from seeing all printed material. As a
result, the employer refuses to promote CP to a supervisory
position that would require CP to review the written work of
others. Although CP does not actually have a disability, she is
regarded as having an impairment that substantially limits her
ability to see. CP, therefore, is covered by the third part of
the definition of "disability."
(d) Persons Who Are Substantially Limited as a
Result of Others' Attitudes -- This subpart covers
individuals who have stigmatic conditions that constitute
physical or mental impairments but that do not by themselves
substantially limit a major life activity. The impairments
become substantially limiting only because of the negative
reactions of others toward the impairments. For example, a
person who has experienced severe burns may have an impairment
that is substantially limiting solely because of the attitudes of
others. Similarly, a person who has a cosmetic disfigurement may
be continuously refused employment because of employers' fears
about the negative reactions of co-workers or clients. These
persons would be covered under the third part of the definition
of the term "disability." See Senate Report at 24; House
Education and Labor Report at 53; House Judiciary Report at 30-
31.
Example -- CP, who has a facial scar that runs
from the base of his left ear to his chin, applies for a job as a
sales representative in a home appliance store. The sales
manager of the store refuses to consider CP for the position
because she fears that CP's presence on the showroom floor will
dissuade customers from shopping at the store. CP is covered by
the third part of the definition of the term "disability." He
has an impairment, a facial scar, that is substantially limiting
only as a result of the negative attitudes of others.
(e) Unimpaired Persons Regarded as Having
Substantially Limiting Impairments -- This subpart covers
persons who have no actual physical or mental impairments but
nonetheless are treated as having substantially limiting
impairments. For example, an individual who is rejected for
employment because the employer erroneously believes that the
individual is infected with the Human Immunodeficiency Virus is
an individual with a disability. Even though the individual has
no impairment, (s)he is regarded as having a substantially
limiting impairment.
Similarly, in a nonemployment case under the
Rehabilitation Act, a court ruled that a parent whose children
had been erroneously placed in a class for mentally retarded
students had standing to sue. Although the children had no
actual impairments, they were regarded as having disabilities.
Carter v. Orleans Parish Pub. Sch., 725 F.2d 261, 262-63 (5th
Cir. 1984).
Example 1 -- R refuses to consider CP for a
position as a lifeguard because R believes that CP has a serious
heart condition that significantly restricts her ability to
engage in physical activity. CP, in fact, has no heart
condition. Although CP does not have an impairment, CP is
regarded as having an impairment that substantially limits her
major life activities. CP, therefore, is covered by this part of
the definition of the term "disability."
Example 2 -- CP and her spouse have recently
completed couples counseling by a clinical psychologist in an
effort to remedy problems in their marriage. Neither CP nor her
spouse has any psychological disabilities. CP's employer,
however, believes that anyone who sees or has seen a psychologist
"must be crazy." He finds a pretext under which to fire her.
CP, therefore, is covered by the third part of the definition of
"disability," because she is being treated by her employer as
though she has a substantially limiting impairment although, in
fact, she does not.
Example 3 -- CP has high normal blood pressure.
Her blood pressure is within "normal" range, and she does not
have hypertension. Nonetheless, R fires CP because R thinks this
means that CP cannot perform everyday activities without risking
a massive stroke. Although CP does not have an impairment, she
is regarded as having an impairment that substantially limits
major life activities. CP, therefore, is covered by the third
part of the definition of "disability."
Example 4 -- CP had abdominal surgery a few
years ago to treat a hernia. The hernia was fully corrected, and
CP has no residual effects. R, however, thinks that this means
that CP cannot lift anything weighing more than a few pounds and
refuses to hire CP. R regards CP as having an impairment that
substantially limits the major life activity of lifting. CP,
therefore, is covered by this part of the definition of the term
"disability."
(f) Regarded as Substantially Limited in the Major
Life Activity of Working -- If an individual is not
regarded as having an impairment that substantially limits any
other major life activities (and does not fall under either of
the first two parts of the definition of "disability"), then the
investigator should consider whether (s)he is regarded as having
an impairment that substantially limits the major life activity
of working. An employer regards an individual as substantially
limited in the ability to work if, as the result of myths, fears,
stereotypes, or other attitudinal barriers commonly associated
with disability, it treats the individual as having an impairment
that disqualifies or significantly restricts him or her from
working in a class of jobs or in a broad range of jobs in various
classes. An employer does not regard an individual as
substantially limited in the ability to work simply because it
finds the individual unsuitable for one particular job. Forrisi
v. Bowen, 794 F.2d 931, 934, 40 EPD Par. 36,307 at 43,277-78, 1
AD Cas. (BNA) 921, 923 (9th Cir. 1986); see also E.E. Black, Ltd.
v. Marshall, 497 F. Supp. 1088, 24 EPD Par. 31,260, 1 AD Cas.
(BNA) 220 (D. Hawaii 1980). Rather, an employer regards an
individual as substantially limited in working if it perceives
the individual to have an impairment that "foreclose[s] generally
the type of employment involved." Forrisi, 794 F.2d at 935, 40
EPD Par. at 43,278, 1 AD Cas. at 923.
In Forrisi, an employer discharged a newly hired
utility systems repairer who had acrophobia (fear of heights).
The condition had not previously interfered with the individual's
employability. It did, however, prevent the individual from
performing the job at issue, a utility systems repairer position
at the employer's plant, which required work at high elevations.
The employer viewed the individual as qualified for and generally
capable of doing utility systems repair work but as unable to
perform one particular job. Noting that the individual "was seen
as unsuited for one position in one plant--and nothing more," the
court found that he was not regarded as substantially limited in
working. Id.
To determine whether an employer regards an individual
as substantially limited in working, one must determine whether
the employer (1) perceives the individual as having an impairment
that precludes or significantly restricts work only in a
particular job or a narrow range of jobs or (2) perceives the
individual as having an impairment that disqualifies or
significantly restricts the individual from a class of jobs or a
broad range of jobs. This means that one must determine what the
employer thinks about the impairment and how the employer
believes the impairment affects the individual's ability to work.
That is, one must identify the work limitations that the employer
believes result from the impairment.
To do this, one first should identify the qualification
standard or other criterion that the employer has used to
disqualify or restrict the individual from employment. For
example, the Forrisi employer disqualified the plaintiff because
he could not perform utility systems repair work at certain
heights, 794 F. 2d at 933, 40 EPD at 43,276, 1 AD Cas. at 922,
and the E.E. Black employer disqualified the plaintiff because he
had a congenital back anomaly that the employer thought made him
"a poor risk for heavy labor," 497 F. Supp. at 1091, 24 EPD at
17,644, 1 AD Cas. at 222. Other disqualifying criteria include
such requirements as a certain level of hearing or vision, an
ability to carry objects for a certain distance, an ability to
lift a certain amount of weight, an ability to work with a
certain substance, and an ability to handle particularly
stressful situations.
Next, one should determine whether the criterion
pertains uniquely to the peculiar job or work site of one
particular employer. If the criterion pertains only to the
peculiar job or work site, then an employer who refuses to employ
an individual who does not meet the criterion regards the
individual as disqualified only from work in that particular job
or at that particular work site. The employer, who perceives the
individual to be unsuited for one particular job, does not regard
the individual as substantially limited in working.
For example, the Forrisi criterion, an ability to
perform utility systems repair work at certain heights, was
unique to that employer's job. The criterion did not measure the
employee's ability to perform a class of jobs; rather, the
criterion measured the employee's ability to perform utility
repair work at the employer's plant, which exposed the employee
to certain heights. See 794 F.2d at 935, 40 EPD at 43,278, 1 AD
Cas. at 923 (employer doubted plaintiff's ability to perform
utility repair work above certain heights in employer's plant,
not plaintiff's ability to perform such work in general). The
Forrisi employer did not regard the plaintiff as substantially
limited in the ability to work. Instead, the employer regarded
the plaintiff as unable to meet a unique criterion that pertained
to the location of one specific job for one specific employer.
If the criterion does not pertain to the peculiar job
or work site of one particular employer, then the investigator
should determine whether the criterion pertains to a class of
jobs or a broad range of jobs in various classes. To do this,
the investigator should look at the number and types of jobs, in
the geographical area to which the individual has reasonable
access, that use similar training, knowledge, skills, and
abilities (a class of jobs) and that do not use similar training,
knowledge, skills, and abilities (a broad range of jobs). 29
C.F.R. § 1630.2(j)(3)(ii). If the criterion pertains to a
class of jobs or to a broad range of jobs, then the employer that
applied the criterion has treated the individual as having an
impairment that disqualifies or restricts him or her from a class
of jobs or from a broad range of jobs in various classes. The
employer's actions, therefore, demonstrate that the employer
regards the individual as having an impairment that precludes or
significantly restricts work in a class of jobs or a broad range
of jobs in various classes. Accordingly, the employer regards the
individual as substantially limited in working.
For example, the E.E. Black criterion that the
plaintiff could not meet because of a back anomaly did not
pertain uniquely to the peculiar job or work site of one
particular employer. Instead, the requirement that employees not
be "a poor risk for heavy labor" pertained to the plaintiff's
ability to perform all jobs involving heavy labor and not just to
a particular job of the employer. See 497 F. Supp. at 1091, 24
EPD at 17,644, 1 AD Cas. at 222 (noting that plaintiff was
disqualified from employment because he "was a poor risk for
heavy labor"). The criterion, therefore, pertained to a class of
jobs, heavy labor jobs. By applying the criterion to exclude the
plaintiff from employment, the employer treated the plaintiff as
having an impairment that disqualified him from a class of jobs.
As a result, the employer demonstrated that it regarded the
plaintiff as having an impairment that disqualified him from a
class of jobs and, therefore, as substantially limited in the
ability to work.
On the other hand, an employer that disqualifies an
individual from employment on the basis of a criterion that does
not pertain to a class of jobs or a broad range of jobs (for
example, a criterion that pertains only to a narrow range of
jobs) does not regard the individual as substantially limited in
working. See 29 C.F.R. pt. 1630 app. § 1630.2(j). An
employer that applies such a criterion to disqualify an
individual because of an impairment is treating the individual as
having an impairment that disqualifies him or her only from a
narrow range of jobs. The employer, therefore, regards the
individual as having an impairment that precludes work only in a
narrow range of jobs (rather than in a class of jobs or a broad
range of jobs). Accordingly, the employer, which does not regard
the individual as disqualified from a class of jobs or a broad
range of jobs, does not regard the individual as substantially
limited in working.
In summary, an employer that disqualifies an individual
from a job on the basis of a criterion that pertains to a unique
aspect of the job at issue does not regard the individual as
substantially limited in the ability to work. Instead, the
employer merely regards the individual as unsuitable for one
particular job. The individual, therefore, does not meet the
third, "regarded as" part of the definition of the term
"disability" with respect to the major life activity of working.
On the other hand, an employer that disqualifies an individual on
the basis of a criterion that does not pertain to a unique aspect
of one particular job does regard the individual as substantially
limited in working if the criterion pertains to a class of jobs
or to a broad range of jobs. In that case, the individual is
covered by the third part of the definition of "disability."
Example 1 -- CP is an industrial painter who has
extensive experience painting factories, warehouses, aircraft
hangars, and other large structures. He applies for a position
with R, a company with a contract to paint all of the buildings
at a nuclear power facility. R plans to paint the buildings with
a unique type of paint that contains a substance designed to help
insulate buildings from radiation. R erroneously believes that
CP is allergic to that substance and cannot use paint that
contains it. As a result, R does not hire CP. In this case, the
exclusionary criterion -- the requirement that employees be able
to work with paint that contains a certain substance -- is unique
to this job. The criterion pertains specifically to R's work
site. By disqualifying CP from employment on the basis of a
criterion that pertains to a unique aspect of R's job, R has
shown that it finds CP to be unsuitable only for one particular
job for one particular employer. R, therefore, does not regard
CP as substantially limited in working.
Example 2 -- CP is a warehouse worker whose
duties include loading and unloading vehicles, moving heavy boxes
from one part of the warehouse to another, and keeping an
inventory of the items stored in one section of the warehouse. R
requires its warehouse workers to be able to lift packages
weighing up to seventy pounds, to carry those packages for up to
one hundred yards, to bend repeatedly, and to climb up and down
ladders several times each day. CP recently learned that she has
arthritis in her left knee. The arthritis does not significantly
restrict her in any way, and her physician has placed no
limitations on her activities. Nevertheless, R believes that the
arthritis prevents CP from meeting the lifting, carrying,
bending, and climbing requirements of the warehouse position. R
has no objective evidence about any limitations that CP might
have but instead bases its belief on its views about arthritis in
general. R fires CP on the grounds that she can no longer meet
the climbing, lifting, bending, and carrying requirements of her
warehouse job. The exclusionary criteria -- R's climbing,
lifting, bending, and carrying requirements -- do not apply to
some unique aspect of R's warehouse. Instead, the criteria apply
to the class of jobs that involve manual labor. By disqualifying
CP from employment on the basis of criteria that apply to manual
labor jobs, R has shown that it finds CP to be unsuitable for
work in a class of jobs. R, therefore, regards CP as
substantially limited in the ability to work.
Example 3 -- CP, a bank teller, has a mild form
of clinically diagnosed depression. The depression does not
substantially limit any of CP's major life activities. R, CP's
employer, learns of CP's clinically diagnosed depression and
assumes that the depression will prevent CP from working well
with customers and other members of the public. There is no
factual basis to R's assumption. Nevertheless, R reassigns CP to
a clerical position in a back office. In this case, the
exclusionary criterion -- the requirement that employees be able
to work well with members of the public -- does not pertain to a
unique aspect of the job or work site. Rather, since a wide
variety of jobs involves working with the public, the
exclusionary criterion applies to a broad range of jobs. By
disqualifying CP from the teller position on the basis of a
criterion that applies to a broad range of jobs in various
classes, R has demonstrated that it finds CP to be unsuitable for
work in a broad range of jobs. Accordingly, R regards CP as
substantially limited in the ability to work.
Example 4 -- CP applies for a job as a laborer
at R's construction site. A post-offer medical examination
reveals that CP has a congenital back anomaly. CP is
asymptomatic; the back anomaly does not limit any of her
activities. Nonetheless, R withdraws the job offer because it
believes that the back anomaly makes CP a poor risk for heavy
labor jobs. That is, R thinks that CP will injure her back on
the job and will increase R's workers' compensation costs. The
criterion -- a requirement that employees not pose a risk of
injury in heavy labor jobs -- does not apply to a unique aspect
of R's job or work site. Instead, the criterion applies to a
class of jobs -- heavy labor jobs. By disqualifying CP from
employment on the basis of a criterion that applies to all heavy
labor jobs, R has shown that it finds CP to be unsuitable for
work in a class of jobs. R, therefore, regards CP as
substantially limited in working.
To determine whether a respondent regards a charging
party as having an impairment that substantially limits the major
life activity of working, the investigator should take the
following steps:
(1) identify the impairment that CP has or is regarded
as having;
(2) identify the criterion that disqualifies or
significantly restricts CP because of the impairment;
(3) determine whether the criterion pertains uniquely to
the peculiar job or work site of R;
(a) if the criterion pertains uniquely to the
peculiar job or work site of R, then R does not regard CP as
substantially limited in working; instead, R regards CP as
unsuitable for one particular job for one particular employer;
(b) if the criterion does not pertain uniquely to
the peculiar job or work site of R, then
(4) determine whether the criterion pertains to a class
of jobs or a broad range of jobs in various classes;
(a) if the criterion pertains to a class of jobs or
a broad range of jobs in various classes, then R regards CP as
substantially limited in working;
(b) if the criterion does not pertain to a class of
jobs or a broad range of jobs in various classes, then R does not
regard CP as substantially limited in working.
902.9 Cross References
(a) How to Investigate, § 602
(b) Definition of the Term "Qualified Individual
with a Disability," § ___
INDEX (removed in ASCII version)
1.The ADA uses the terms "disability" and "individual with a
disability" rather than the terms "handicap" and "handicapped
person" or "individual with handicaps." The use of these terms
"represents an effort by [Congress] to make use of up-to-date,
currently accepted terminology." The change in phraseology does
not reflect a change in definition or substance. S. Rep. No.
116, 101st Cong., 1st Sess. 21 (1989) [hereinafter Senate
Report]; H.R. Rep. No. 485 pt. 2, 101st Cong., 2d Sess. 50-51
(1990) [hereinafter House Education and Labor Report].
2.The ADA also protects individuals from discrimination on the
basis of their relationship or association with a person with a
disability. 42 U.S.C. § 12112(b)(4); 29 C.F.R. §
1630.8; see also Senate Report at 30; House Education and Labor
Report at 61-62; H.R. Rep. No. 485 pt. 3, 101st Cong., 2d Sess.
38-39 (1990) [hereinafter House Judiciary Report]. Further, the
Act prohibits retaliation or coercion against individuals because
they have opposed any act that the ADA makes unlawful, have
participated in the enforcement process, or have encouraged
others to exercise their rights secured by the ADA. 42 U.S.C.
§ 12203; 29 C.F.R. § 1630.12; see also Senate Report at
86; House Education and Labor Report at 138; House Judiciary
Report at 72.
3.The Rehabilitation Act Amendments of 1992 amended the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701-97 (1988 &
Supp. IV
1992), to apply the substantive standards of Title I of the ADA
to sections 501, 503, and 504 of the Rehabilitation Act for non-
affirmative action employment discrimination cases. Pub. L. No.
102-569, 106 Stat. 4344 at 4424, 4428 (1992) (codified at 29
U.S.C. §§ 791(g), 793(d), 794(d) (Supp. IV 1992)).
(Sections 501, 503, and 504 of the Rehabilitation Act prohibit
federal agencies, federal contractors, and programs receiving
federal financial assistance from discriminating on the basis of
disability.) The ADA definition of the term "disability,"
therefore, also applies to those sections of the Rehabilitation
Act.
4.The Vietnam Era Veterans Readjustment Assistance Act of 1974
defines a disabled veteran as
(A) a veteran who is entitled to compensation (or who but
for the receipt of military retired pay would be entitled
to compensation) under laws administered by the Secretary, or (B)
a person who was discharged or released from active duty because
of a service-connected disability.
38 U.S.C. § 4211(3) (Supp. III 1991).
5.This section frequently refers to the term "impairment" in the
present tense. These references are not meant to imply that the
determination of whether a condition is an impairment is relevant
only to whether an individual meets the first part of the
definition of "disability," i.e., actually has a physical or
mental impairment that substantially limits a major life
activity. This determination also is relevant to whether an
individual has a record of such an impairment or is regarded as
having such an impairment.
The determination of whether a condition constitutes an
impairment should be made without regard to mitigating measures.
See § 902.5, infra.
6.A diagnosis is relevant to determining whether a charging party
has an impairment. It is important to remember, however, that a
diagnosis may be insufficient to determine if the charging party
has a disability. An impairment rises to the level of a
disability when it substantially limits one or more major life
activities. The investigator, therefore, also should obtain
available medical or other documentation that describes the
extent to which the impairment limits the charging party's major
life activities. See §§ 902.3, 902.4, infra.
7.The statute also specifies that certain conditions, even though
they may be impairments, are not disabilities covered by the ADA.
See § 902.6, infra.
8.Osteoporosis is a "[r]eduction in the quantity of bone or
atrophy of skeletal tissue." Stedman's Medical Dictionary 1110
(25th ed. 1990).
9.The ADA definition of "disability" is similar to the definition
of "individual with a disability" that has been applied to Title
V of the Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B),
(C) (Supp. IV 1992). See Senate Report at 21; House Education
and Labor Report at 50; House Judiciary Report at 27. Since both
Acts use the same three-part definition, this manual section
draws on case law applying the Rehabilitation Act where
appropriate.
10.Although other statutes may use the term "disability" when
referring to pregnancy, pregnancy is not a "disability" for
purposes of the ADA. Note, however, that allegations of
employment discrimination based on pregnancy are covered by Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The
appropriate analysis for assessing a charge of pregnancy-based
employment discrimination is discussed in a separate Compliance
Manual section. See § 626, supra.
11.Note, however, that CP's employer does not have to excuse CP's
misconduct, even if the misconduct results from an impairment
that rises to the level of a disability, if it does not excuse
similar misconduct from its other employees. See 56 Fed. Reg.
35,733 (1990) (referring to revisions that "clarify that
employers may hold all employees, disabled (including those
disabled by alcoholism or drug addiction) and nondisabled, to the
same performance and conduct standards").
12.As in Example 2, CP's employer does not have to excuse CP's
misconduct, even if the misconduct results from an impairment
that rises to the level of a disability, if it does not excuse
similar misconduct from its other employees. See 56 Fed. Reg.
35,733 (1990) (referring to revisions that "clarify that
employers may hold all employees, disabled (including those
disabled by alcoholism or drug addiction) and nondisabled, to the
same performance and conduct standards").
13.Note, however, that persons who have normal deviations in
height or weight may allege that height or weight standards
violate Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e. See Dothard v. Rawlinson, 433 U.S. 321, 14 EPD
Par. 7,632 (1977) (minimum height/weight requirement for
correctional counselor position had adverse impact on women and
was not job related and consistent with business necessity);
Gerdom v. Continental Airlines, 692 F.2d 602, 30 EPD Par. 33,156
(9th Cir. 1982) (en banc), cert. dismissed, 460 U.S. 1074 (1983)
(maximum weight standards that were applied to exclusively female
position of flight hostess constituted disparate treatment based
on sex where no such weight policy was applied to similar but
exclusively male position of director of passenger service).
14."Achondroplastic dwarfism is a growth disorder that affects
all four extremities and results in short limbs and short
stature." Dexler v. Tisch, 660 F. Supp. 1418, 1419, 43 EPD Par.
37,280 at 48,202, 1 AD Cas. (BNA) at 1086 (D. Conn. 1987).
15.Investigators should be aware that medical experts sometimes
use the term "morbid obesity" or "gross obesity" to mean the same
thing as "severe obesity," i.e., body weight more than 100% over
the norm.
The term "obesity" has been defined as "[t]he excessive
accumulation of body fat. Except for heavily muscled persons, a
body weight 20% over that in standard height-weight tables is
arbitrarily considered obesity." The Merck Manual of Diagnosis
and Therapy 981 (Robert Berkow ed., 16th ed. 1992).
16.The mere presence of an impairment does not automatically mean
that an individual has a disability. Whether severe obesity
rises to the level of a disability will turn on whether the
obesity substantially limits, has substantially limited, or is
regarded as substantially limiting, a major life activity.
"[E]xcept in rare circumstances, obesity is not considered a
disabling impairment." 29 C.F.R. pt. 1630 app. § 1630.2(j).
17.The fact that a contagious disease is an impairment does not
automatically mean that it is a disability. To be a disability,
an impairment must substantially limit (or have substantially
limited or be regarded as substantially limiting) one or more
major life activities. See 29 U.S.C. § 12102(2); see also
29 C.F.R. § 1630.2(g).
18.An individual who has HIV infection, including asymptomatic
HIV infection, has a disability covered under the ADA. See
§ 902.4(c)(1), infra; see also Doe v. Kohn Nast & Graf, 862
F. Supp. 1310, 1321, 3 AD Cas. (BNA) 879, 885 (E.D. Pa. 1994);
Doe v. District of Columbia, 796 F. Supp. 559, 59 EPD Par.
41,656, 2 AD Cas. (BNA) 197 (D.D.C. 1992); Senate Report at 22;
House Education and Labor Report at 52; House Judiciary Report at
28 n.18; Memorandum from Douglas W. Kmiec, Acting Assistant
Attorney General, to Arthur B. Culvahouse, Jr., Counsel to
President Reagan, 8 Fair Empl. Prac. Manual (BNA) No. 641, at
405:1 (Sept. 27, 1988); Federal Contract Compliance Manual App.
6D, 8 Fair Empl. Prac. Manual (BNA) No. 694, at 405:352 (Dec. 23,
1988).
19.Note, however, that an individual is not substantially limited
in a major life activity unless (s)he is unable to perform the
activity or is significantly restricted in performing the
activity as compared to the average person in the general
population. See 29 C.F.R. § 1630.2(j); see also §
902.4, infra.
20.This section frequently refers to the term "substantially
limits" in the present tense. These references are not meant to
imply that the determination of whether an impairment is
substantially limiting is relevant only to whether an individual
meets the first part of the definition of "disability," i.e.,
actually has a physical or mental impairment that substantially
limits a major life activity. This determination also is
relevant to whether an individual has a record of such an
impairment or is regarded as having such an impairment.
The determination of whether an impairment is substantially
limiting should be made without regard to mitigating measures.
See § 902.5, infra.
21.If the charging party does not have an impairment that
substantially limits his or her ability to work (or to perform
any other major life activity), then the investigator should
determine whether the charging party has a record of such an
impairment (see § 902.7, infra) or is regarded as having
such an impairment (see § 902.8, infra). An individual who
in fact does not have an impairment that substantially limits the
major life activity of working nonetheless may be regarded as
having such an impairment (see § 902.8(f), infra).
22.Medications required by law to be prescribed by licensed
health care professionals are not necessarily "controlled
substances." "Controlled substances" are those which are
addictive or have potential for abuse and which are listed on
Schedules I-V of the Controlled Substances Act. Many
prescription medications, therefore, are not "controlled
substances."
23.The plaintiff had been hospitalized for tuberculosis from May
1957 until August 1958. Arline v. School Board of Nassau County,
692 F. Supp. 1286, 1289, 48 EPD Par. 38,397 at 54,248, 1 AD Cas.
(BNA) 1345, 1348 (M.D. Fla. 1988). The plaintiff's tuberculosis,
which required lengthy hospitalization, was a substantially
limiting impairment. See § 902.4(d), supra.
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