The U.S. Equal Employment Opportunity Commission
The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed into law on September 25, 2008 and becomes effective January 1, 2009. Because this law makes several significant changes, including changes to the definition of the term "disability," the EEOC will be evaluating the impact of these changes on this document and other publications. See the
list of specific changes to the ADA made by the ADA Amendments Act.
These instructions, issued to the Equal Employment Opportunity Commission's
(EEOC) field offices on July 26, 1999, summarize the Supreme Court's
decisions in Bragdon v. Abbot, Sutton v. United Airlines, Inc., Murphy v. United
Percel Service, Inc., Cleveland v. Policy Management Systems Corp., and Albertsons,
Inc. v. Kirkingburg and explain their impact on the processing of charges
under the Americans with Disabilities Act (ADA).
The instructions are not enforcement guidance or policy statements. Rather,
they modify previous field instructions and emphasize the individualized
analysis that must be used in determining whether a Charging Party has a
"disability" as defined by the ADA and whether a person is "qualified." In addition,
they offer valuable, practical advice to field staff responsible for
collecting and analyzing evidence under the ADA.
INSTRUCTIONS FOR FIELD OFFICES: ANALYZING ADA
CHARGES AFTER SUPREME COURT DECISIONS ADDRESSING "DISABILITY" AND
"QUALIFIED"
Background
The Supreme Court over the past two terms has issued several ADA
decisions involving the determination of:
(1) whether a person has a "disability" as defined by
the ADA. (See Bragdon v. Abbott, 524 U.S. 624 (1998);
Sutton v. United Airlines, Inc., 527 U.S. ___, 67 U.S.L.W. 4537
(June 22, 1999); Murphy v. United Parcel Service, Inc., 527
U.S. ___ (1999); and Albertsons, Inc. v. Kirkingburg, 527
U.S. ___ (1999)); and
(2) whether a person with a disability is "qualified." (See
Cleveland v. Policy Management Systems Corp., 119 S. Ct.
1597 (1999); and Albertsons, Inc. v. Kirkingburg, 527 U.S.
___ (1999)).
Since these cases involve fundamental issues that are addressed
in many ADA charges, the Office of Legal Counsel has prepared these
instructions for the field to aid in gathering and analyzing
evidence.
Last year, the Supreme Court broadly interpreted the terms
"impairment," "major life activity," and "substantial limitation"
in Bragdon, holding that a woman with asymptomatic HIV infection
had an ADA "disability." Consistent with the Court's approach, the
EEOC will continue to give a broad interpretation to these
terms.
This year, the Supreme Court held in Sutton and
Murphy that the determination of whether a person has an ADA
"disability" must take into consideration whether the
person is substantially limited in a major life activity when using
a mitigating measure, such as medication, a prosthesis, or
a hearing aid. A person who experiences no substantial limitation
in any major life activity when using a mitigating measure does not
meet the ADA's first definition of "disability" (a physical or
mental impairment that substantially limits a major life activity).
In Albertsons, the Court extended this analysis to individuals who
specifically develop compensating behaviors to mitigate the effects
of an impairment. In so ruling, the Supreme Court rejected the
Commission's position that the beneficial effects of mitigating
measures should not be considered when determining whether a person
meets the first definition of "disability."
In all of these cases, the Supreme Court emphasized that,
consistent with EEOC's position, the determination of whether a
person has a "disability" must be made on a case-by-case
basis. The Court stated that it could not be assumed that
everyone with a particular type of impairment who uses a particular
mitigating measure automatically was included -- or excluded --
from the ADA's definition of "disability." Nor does the definition
of "disability" depend on general information about the limitations
of an impairment. Rather, one must assess the specific limitations,
or lack of limitations, experienced by a Charging Party (CP) who
uses a mitigating measure or compensating behavior to lessen or
eliminate the limitations caused by an impairment.
The Court also emphasized that the disability determination must
be based on a person's actual condition at the time of the
alleged discrimination. Therefore, if a CP did not
use a mitigating measure at that time, an Investigator
must determine whether s/he was substantially limited in a major
life activity based solely on his/her actual condition. For the
purpose of determining whether a CP meets the definition of
"disability," speculation regarding whether the person would have
been substantially limited if s/he used a mitigating measure is
irrelevant.
The instructions below, consistent with these Supreme Court
decisions, modify previous field instructions and emphasize the
individualized analysis that must be used in determining whether a
particular CP has an ADA "disability."
- Part One addresses each of the three definitions of
"disability" as they apply to CPs who use mitigating measures.
(Pages 2-16) It also highlights certain issues relating to any
"regarded as" case. (Pages 12-16)
- Part Two addresses special issues that may arise when a
Respondent claims to rely on federal safety standards in
determining that a CP is not "qualified" because of a disability.
(Pages 16-17)
- Part Three discusses the relationship between
application for, or receipt of, disability benefits and a
determination of whether a CP is "qualified." (Pages 17- 19) (A
summary of the decisions in Albertsons and Cleveland is found on
pages 16 and 17, respectively.)
If an Investigator is uncertain whether a CP who uses a
mitigating measure is substantially limited in a major life
activity, s/he should contact the OLC ADA Division attorney
assigned to the field office.
PART ONE: THE THREE DEFINITIONS OF "DISABILITY"
First Definition of "Disability": CP Has a Substantially
Limiting Impairment
All of the questions below seek information about a CP's
condition at the time of the alleged discrimination.
In determining whether a CP, or a potential CP, has a physical
or mental impairment that substantially limits a major life
activity, an Investigator must do the following:
- Identify the CP's physical or mental
impairment(s).
- Ask whether the CP uses a mitigating measure to control
or eliminate symptoms or limitations of the impairment.
- Ask the CP to identify the precise mitigating measure used
(e.g., medication, insulin, prosthetic limb, hearing aid).
- If a CP uses more than one mitigating measure (e.g., a CP uses
two medications), be sure to get information on how well each
mitigating measure controls a CP's symptoms, the respective side
effects of each, and whether the two medications together cause
limitations because of the interaction between them.
- Ask the CP to identify any behaviors s/he may have specifically
developed to cope with the limitations of an impairment.
- For example, an individual with monocular vision might have
developed specific compensating behaviors in head or eye movements
to see effectively at long distances.
- If the CP is not using a mitigating measure, then
discuss what limitations, if any,the CP experiences in performing a
major life activity due to the impairment.
- Ask whether the mitigating measure or compensating
behavior fully or only partially controls the symptoms or
limitations of the impairment.
- A number of questions should be asked to determine whether a
mitigating measure fully controls, partially controls, or has
little effect in controlling the symptoms and limitations of an
impairment. Examples include:
- Describe what symptoms and limitations you experienced before
using the mitigating measure (e.g., 3 seizures a week;
frequent and severe headaches, blurred vision, urination, thirst,
and other symptoms of high levels of blood sugar (hyperglycemia)
for a person with diabetes; chronic, severe shaking due to
Parkinson's disease; ability to hear only certain high-pitched
sounds).
- This question seeks information to establish what major
life activity(ies)may be affected by the CP's impairment,
despite the use of a mitigating measure or compensating behavior.
Remember that major life activities are broadly defined and
that the list of major life activities in the EEOC regulations and
enforcement guidances is not exhaustive.
- Bragdon took an expansive view of the terms "major life
activity" and "substantial limitation." Investigators should
continue to consult the Compliance Manual and EEOC guidances for
additional information on identifying major life activities and
assessing whether a CP is substantially limited. (Also, see
Sutton, 67 U.S.L.W. 4537, 4542 (June 22, 1999) for a discussion
of "substantial limitation.")
- See pages 7-9 for a listing of some of the major life
activities that you should review with a CP to determine if s/he
still experiences limitations in performing them, despite the use
of a mitigating measure.
- How well does the mitigating measure control the symptoms and
limitations identified above?
- Does the mitigating measure control the symptoms or limitations
all of the time or only some of the time? (e.g., medication
has reduced the number of seizures from 3 per week to 1 per week;
the treatment of diabetes through diet, medication, and insulin has
limited the frequency and severity of the incidents of
hyperglycemia; the shaking only occurs when the CP is tired and is
not as severe as it used to be; the hearing aid enables the CP to
hear low and high-pitched sounds, but not words).
- A CP who uses a prosthetic hand or arm may continue to
experience substantial limitation in the major life activity of
performing manual tasks because the device does not permit fine
motor manipulation.
- If a CP uses a behavior specifically developed to compensate
for a limitation resulting from an impairment, how well does that
behavior compensate for the limitation? Do any limitations remain
for which the compensating behavior is ineffective?
- For example, a CP with monocular vision might be able to turn
his/her head to compensate sufficiently for a decrease in his/her
field of vision. This will not compensate for the loss of depth
perception. To deal with that limitation, a CP may have learned to
judge long distances by relying on monocular cues such as linear
perspective, overlay of contours, and distribution of highlights
and shadows. However, this behavior may not compensate for
limitations in seeing at shorter distances. Therefore, a CP who
uses certain compensating behaviors might still experience
limitations in performing numerous tasks involving close range
vision. The limitation in close range vision is relevant to
determining whether the CP is substantially limited in seeing or
any other major life activities.
- How long has the CP been using the mitigating measure or
compensating behavior?
- If a CP has been using a mitigating measure or compensating
behavior for only a short period, initially it may not be very
effective in controlling the limitations.
- Whether a mitigating measure, over time, might become more
effective involves speculation. The Supreme Court's decisions make
it clear that the determination of whether a CP is substantially
limited, even with the use of a mitigating measure or compensating
behavior, must rest on evidence of how well the measure or behavior
actually worked at the time of the alleged
discrimination.
- Does the mitigating measure tend to become less effective under
certain conditions? If certain conditions interfere with the
effectiveness of a mitigating measure, how often and for how long a
period do these conditions arise? For example:
- If the CP is under great stress, or is tired, does the
mitigating measure work as well?
- Do adverse weather conditions or other environmental changes
impact the effectiveness of a mitigating measure?
- Do illnesses, such as a cold or the flu, change the
effectiveness of a mitigating measure?
- For women, do monthly hormonal changes impact the effectiveness
of a mitigating measure?
- Does the mitigating measure tend to be effective only for
awhile?
- For example, while a CP with bipolar disorder who uses
medication does not experience severe symptoms of the disorder for
a period of time, he then experiences symptoms for several weeks
and undergoes a severe manic episode. Following the manic episode,
the CP again experiences few or no symptoms while using the
mitigating measure.
- Mitigating measures used to treat degenerative illnesses, such
as Parkinson's disease, may only work for a period of time before
the condition worsens, making the mitigating measure
ineffective.
- Has the CP had to change mitigating measures because previous
ones became less effective? If yes, how many previous mitigating
measures has the CP used, and what happened when each one became
less effective? How long did each mitigating measure remain
effective? Is the current mitigating measure different from
previous ones so that it is less likely to fail? Or, conversely, is
there any indication that the current mitigating measure is
becoming less effective?
- Are there any symptoms or limitations that are unaffected by
the mitigating measure? If yes, what are they and how severely do
they limit the CP from engaging in a major life activity?
- Has the impairment caused any complications that are not
controlled by a mitigating measure and may substantially limit a
major life activity?
- For example, complications from diabetes may result in
substantial limitations in major life activities. This can include
complications such as eye disease (seeing); nerve damage (sitting,
standing, walking, eating); blood vessel disease (walking); and
difficulties with reproduction. These are all complications that
are not controlled by insulin.
- Ask whether the mitigating measure itself causes any
limitations in performing a major life activity.
- Investigators need to ask CPs whether they experience any
symptoms, side effects, or limitations in performing certain
activities as a result of using a mitigating
measure. If a CP does experience limitations, the
Investigator needs to probe their severity and duration.
- If a CP uses medication, it is critical to identify the
specific medication and the specific side effects caused by it. Not
all medications produce the same side effects. Moreover, the same
medication does not produce the same side effects in all
individuals.
- If a CP uses two or more mitigating measures, and they are not
substantially limiting by themselves, determine if the combined
negative effects of all the mitigating measures together
substantially limit one or more major life activities.
- For example, a CP with Attention Deficit Disorder (ADD) and
depression may take medications to treat each condition. Each
medication, by itself, affects the ability to sleep (a major life
activity), but does not substantially limit it. However, the
combined effect of the two medications substantially limits the
CP's ability to sleep.
- A number of major life activities may be severely affected by a
mitigating measure. (These major life activities may also be
directly affected by the impairment despite the use of a
mitigating measure.)
- Thinking, concentrating, and other cognitive functions
may be substantially limited when a CP uses certain drugs to treat
many different impairments, including psychiatric illnesses and
epilepsy. It may take much greater effort to engage in cognitive
functions because the medication causes a person to feel groggy,
disoriented, or slow. Or, a CP may have difficulty with memory
because of certain medications.
- Walking, standing, and lifting may be substantially
limited even with the use of a prosthetic foot, leg, arm, or hand.
- For neurological reasons, some people experience "pain" or
"discomfort" from a missing limb. A CP may experience problems in
the remaining limb resulting from over-use to compensate for the
missing limb. Significant pain may accompany wearing a prosthetic
device. A CP may need to minimize the amount of walking in order to
wear the prosthetic leg for longer periods. Or, a person using a
prosthetic leg may be able to walk without significant problems,
but can only wear the leg for 8 hours per day, and then must rely
on a wheelchair or crutches for mobility.
- A prosthetic limb may cause serious chafing, rubbing, blisters,
and ulcers, depending on a number of factors, including the
materials used, the tightness of the fit, how the amputation
occurred, and what body part the prosthetic device is replacing.
These side effects could affect the ability to wear the prosthetic
device for prolonged periods and/or affect the CP's ability to
engage in walking, standing, or lifting, as well as the major life
activities of performing manual tasks and caring for
oneself.
- Eating is a major life activity that may be affected by
the use of a mitigating measure if a CP is required to adhere to
substantial dietary restrictions because of medication or a device.
Or, a CP may be less able to eat or may have to maintain a rigid
eating schedule because of certain medications or devices. Certain
medications can cause severe nausea, which in turn will affect a
CP's ability to eat. An Investigator should ask whether a CP's
ability to eat and/or eating habits had to be altered, and if so in
what ways.
- Both food and lack of food can cause severe short and/or
long-term medical problems for people with diabetes. They must
consider the impact on the disease of everything they eat, how much
they eat, and when they eat.
- Caring for oneself may be substantially limited as a
result of using a mitigating measure.
- Medication and prosthetic devices may cause extreme fatigue,
which in turn may affect a CP's ability to care for
him/herself.
- For CPs with diabetes, the ability to care for themselves may
require significant changes and/or disruptions to their daily
activities to control the frequency and severity of incidents of
high blood sugar (hyperglycemia) and low blood sugar
(hypoglycemia). The serious short and long-term consequences of
hyperglycemia include headaches, blurry vision, breathing
difficulties, eye disease, kidney disease, nerve damage, blood
vessel disease, and death; the consequences of hypoglycemia include
disorientation, weakness, nervousness, seizure, coma, and death. To
avoid these serious consequences, CPs with diabetes must be
constantly vigilant in closely controlling blood sugar levels. This
involves monitoring body signals for fluctuations in blood sugar
levels, checking blood sugar levels mechanically, and, based on
those levels, adjusting food intake, physical activity, and
medications (including insulin and oral medications). People with
diabetes must maintain a delicate balance between these elements in
order to avoid hyperglycemia and hypoglycemia.
- There also may be a significant impact on the ability to care
for oneself as a result of experiencing a medical episode. The
inability of a mitigating measure to prevent such an episode may
cause so much fear that it seriously affects a CP's ability to care
for himself. For example, a CP with epilepsy may have had traumatic
experiences having a seizure in public where strangers reacted
badly. As a result, he may not be able to go out alone to run
routine errands or buy groceries, and may require that someone
familiar with his epilepsy always accompany him. Alternatively, a
CP may fear possible injury from a seizure, and therefore may be
unable to engage in basic activities of caring for oneself, such as
cooking and bathing, unless another person is present.
- A person who wears a prosthetic limb may have to curtail
activities that are part of caring for oneself, such as household
chores and grocery shopping, because the limb can only be worn for
a certain period of time.
- Sleeping may be affected by certain medications. Some
may cause extreme drowsiness, while others have the opposite
effect.
- Performing manual tasks may be affected by certain drugs
which can interfere with fine motor skills.
- Reproduction may be affected by use of a mitigating
measure. Many medications prescribed to control seizures or
psychiatric illnesses can cause birth defects, thus creating a
substantial limitation in procreation. (See Bragdon.)
- Working may be affected by use of a mitigating measure.
Investigators should always review this major life activity last.
For a discussion on the impact of the Supreme Court decisions on
identifying a class of jobs or broad range of jobs in various
classes, see pages 14-16.
- Relevant witnesses for gathering this
information
- After reviewing all of the questions above with the CP, the
Investigator should interview other relevant witnesses who may be
able to corroborate or supplement the CP's information. These would
include:
- family members, friends, and coworkers;
- rehabilitation specialists who work with the CP to address
functional limitations; and
- doctors (if they have knowledge about the CP's specific
functional limitations).
- Based on the evidence collected from asking these and
other relevant questions, does the CP who uses a mitigating measure
have a substantially limiting impairment?
- A CP meets the first definition of "disability" where, despite,
or because of, the use of a mitigating measure, the CP is
substantially limited in performing a major life activity.
- Determining whether a CP meets this definition does not rest on
identifying a multitude of major life activities that are merely
affected by CP's impairment, even with the use of a mitigating
measure. Rather, such a determination depends on evidence that
shows that the CP is substantially limited in performing at least
one major life activity.
- Problems in performing numerous tasks may signal a substantial
limitation in performing a specific major life activity.
- For example, a CP with epilepsy may be substantially limited in
caring for herself because she cannot live independently due to the
fact that her epilepsy necessitates assistance with running a
household (e.g., preparing meals, cleaning, bathing, grocery
shopping). Even if running a household is not a separate major life
activity, it is part of the major life activity of caring for
oneself.
- Always look for evidence concerning the length of time a CP has
experienced limitations, the frequency with which they occur, and
their severity in order to determine whether the CP is
substantially limited.
Second Definition of "Disability": CP Has a Record of a
Substantially Limiting Impairment
- In all charges where a CP indicates that s/he uses a
mitigating measure, the Investigator should determine whether the
CP has a record of a disability for the period before the CP began
using the mitigating measure.
- The Investigator should ask questions about what limitations
the CP experienced in performing major life activities because of
the impairment prior to using a mitigating measure.
- Questions should seek detailed information and include the
following:
- What major life activities were limited or precluded prior to
using a mitigating measure?
- For example, if a CP with epilepsy has been seizure-free for a
substantial period of time and there are few or no side effects
from medication, detailed information needs to be obtained
concerning CP's seizures, and their impact on performing major life
activities, before CP began using the current medication.
- How long did the CP experience these limitations prior to using
a mitigating measure?
- Was the CP precluded from or limited in performing a major life
activity all of the time or only some of the time? That is, were
any limitations present only during certain periods? of limitations
in performing a major life activity were episodic rather than
constant, how often and for how long a period did these limitations
occur? How severe were the limitations when they did occur?
- For example, a CP with major depression may have experienced
episodes of severe depression that lasted several months before
taking medication.
- Before using a mitigating measure that effectively controls the
symptoms or limitations of an impairment, did the CP try any
unsuccessful mitigating measures?
- In certain situations, it may take months to find the right
medication, or group of medications, to control the symptoms or
limitations of an impairment. During this period, the CP may have
been substantially limited in performing a major life
activity.
- Additional questions include:
- Can the CP provide information on any "records" or files that
document a former substantially limiting impairment or an erroneous
record of a substantially limiting impairment (e.g., school
records, Dept. of Veterans Affairs documents, workers' compensation
records, vocational or other rehabilitation records, medical
files)?
- Was the Respondent aware of the CP's record or history of a
disability?
- The Respondent does not need to be aware of the CP's
record of a substantially limiting impairment for coverage
purposes. However, there must be evidence that the Respondent acted
on the basis of the CP's record of a disability in order to find
that discrimination occurred.
- Based on the evidence collected from asking these and
other relevant questions, does the CP have a record of a
substantially limiting impairment prior to using a mitigating
measure?
- A CP meets the second definition of "disability" where, prior
to using a mitigating measure that effectively controls the
symptoms and limitations of an impairment, the CP was substantially
limited in performing a major life activity.
Third Definition of "Disability": CP is Regarded as Having
a Substantially Limiting Impairment
- If an Investigator determines that there is
insufficient evidence to establish that a CP who uses a mitigating
measure or compensating behavior is covered under the first two
definitions of "disability," or is uncertain whether a CP meets one
of the first two definitions, then the Investigator should assess
whether the Respondent regarded the CP as having a substantially
limiting impairment.
- An Investigator should take the following steps to
determine if the CP meets this definition:
- Identify the impairment that Respondent knew
or believed the CP to have.
- Identify the reason given by the Respondent
to disqualify, terminate, or in any way affect an
employment opportunity of the CP. Examples of possible
reasons that a Respondent might offer include:
- failure to meet a physical qualification standard (e.g.,
hearing or lifting requirements);
- inability to work under stressful conditions;
- insufficient stamina or endurance to work effectively;
- concerns that the CP might pose a health or safety risk to self
or others; and
- failure to obtain required licenses.
- Determine whether the Respondent believes that the CP's
impairment is the cause of the perceived problem. For
example, is there evidence that the Respondent believes that CP's
impairment is the reason that s/he: (1) failed to meet a
qualification standard, (2) cannot tolerate stressful working
conditions, (3) has insufficient stamina or endurance to work; (4)
poses a health or safety risk,or (5) cannot obtain a required
license?
- Determine whether the Respondent's reason for disqualifying the
CP involves performance of a major life
activity(e.g., the perceived inability to lift 5
pounds involves the perception that the CP is unable to perform the
major life activity of lifting).
- To show that a Respondent regarded a CP as having a disability,
the Respondent's reason for disqualifying the CP must involve or
relate to performance of a major life activity.
- For example, the perceived inability to stand more than a few
minutes involves the major life activity of standing; the perceived
inability to work under stressful conditions involves the major
life activity of working).
- While in many cases the Respondent's reason for disqualifying
the CP may indicate a belief that the CP cannot engage in the major
life activity of working, Investigators should first determine
whether any other major life activity is implicated (e.g.,
walking, breathing, standing).
- See (F) below for further instructions on the major life
activity of working.
- Determine whether the Respondent believed that the CP was
substantially limited in performing the major life
activity.
- Actions speak louder than words. This means
that Investigators should carefully scrutinize the CP's
disqualification and the events that led up to it. Because
Respondents are likely to deny that they regarded a CP as having a
disability, it is important to assess whether the Respondent's
actions indicate otherwise.
- For example, medical leave or workers' compensation files may
contain evidence relevant to the issue of whether the Respondent
perceived that a CP was substantially limited in performing a major
life activity.
- Review the chronology of events to see if there is a connection
between the Respondent's awareness of the CP's impairment (or
perceived impairment) and the Respondent's subsequent actions.
- Determine whether the Respondent's underlying reason for
disqualifying the CP is related to myths, fears,
stereotypes or other attitudes about a particular
disability (e.g., myths about a person's frailty
due to a medical condition or fears about rising health insurance
costs).
- For example, does the Respondent believe that a person with a
moderate hearing loss cannot be a secretary because a hearing aid
will not allow her to hear phones and clients needing
assistance.
- If working is the major life activity at
issue, an Investigator must determine whether the
Respondent's reason for disqualifying the CP indicates a belief
that the CP is substantially limited in working, i.e., unable to
work in a class of jobs or broad range of jobs in various
classes.
- If the Respondent can show that its reason for disqualifying
the CP applies to something unique about the Respondent's job or
workplace, then the Respondent only viewed the CP as unable to work
in one specific job.
- In Sutton, the Supreme Court determined that a global
airline pilot is only one job and not a class of jobs. Since United
Airlines only viewed Sutton as unable to work as a "global pilot,"
it did not regard her as unable to work in the class of pilot jobs,
which would include other types of positions, such as regional
pilots, pilot instructors, and freight pilots.
- In Murphy, the Supreme Court determined that UPS's
mechanics job, which required the ability to drive commercial
vehicles, was a single job and not representative of the class of
mechanics jobs. Thus, according to the Court, UPS only viewed
Murphy as unable to perform its unique job requiring a mechanic to
drive a commercial vehicle, and not as unable to work in the class
of mechanics jobs, which would include diesel mechanics, automotive
mechanics, gas-engine repairers, and gas-welding equipment
mechanics -- none of which require an individual to drive
commercial vehicles.
- The fact that a CP is unable to satisfy a Respondent's physical
or other job requirement does not alone constitute sufficient
evidence that the Respondent regards the CP as substantially
limited in working.
- Therefore, the Investigator should carefully question the CP to
determine whether the Respondent said or did anything to suggest
that the CP was viewed as substantially limited in the ability to
perform a class or broad range of jobs.
- The Investigator also should seek evidence from the Respondent
as to whether it viewed the job from which the CP was disqualified
as representative of a class or broad range of jobs.
- For example, a CP with epilepsy who does not actually have a
substantially limiting impairment may be covered under the
"regarded as" definition if evidence shows that the Respondent has
a generalized fear of seizures, and not a specific fear about the
consequences of a seizure due to something unique about the
Respondent's job or workplace.
- Similarly, if a Respondent has a generalized fear that a person
with a psychiatric illness may become violent, without any
objective information regarding this particular CP, then the
Respondent is acting on generalized fears and misconceptions that
would indicate the Respondent believes the CP could not work in
most jobs.
- Respondents may claim that the CP's inability to meet a
physical or other job requirement shows that the CP is not
"qualified." This claim involves the merits of the charge and must
be analyzed separately from the determination of whether the
Respondent regarded the CP as having a disability. The Supreme
Court's decision in Albertsons (see page 16) underscores the
necessity of assessing each qualification standard to determine
whether it is valid and whether a CP is "qualified."
- Investigators should assess whether the Respondent's reasons
for disqualifying the CP would also result in his/her
disqualification from other jobs in the Respondent's workplace.
- Investigators should document how many jobs in the Respondent's
workplace, and what kind of jobs, were also closed to the CP based
on the Respondent's reasoning.
- For example, if a Respondent had all of the different types of
mechanic jobs discussed in (F)(1) above, and refused to hire a CP
for any of them because of his/her disability, then the Respondent
could be regarding the CP as substantially limited in working in
the class of mechanics jobs.
- Based on the evidence collected from asking these and
other relevant questions, did the Respondent regard the CP as
having a substantially limiting impairment?
- A CP meets the third definition of "disability" where a
Respondent regards a CP as having a substantially limiting
impairment.
PART TWO: IS A CP "QUALIFIED" IF S/HE FAILS TO MEET A FEDERAL
REGULATORY SAFETY STANDARD?
After determining that a CP meets one of the definitions of
"disability," the next issue is whether the CP is "qualified." In
Albertsons, the Supreme Court determined that an employer
can require a CP to meet an applicable federal safety standard,
even if the standard can be waived under an experimental program.
The following instructions apply to any CP who meets the ADA
definition of "disability," regardless of whether s/he uses a
mitigating measure.
In cases where Respondents allege that a CP cannot meet a
federally-mandated safety standard, Investigators need to do the
following:
- Carefully review a Respondent's claim that a CP is not
qualified because s/he fails to meet a federally-mandated safety
requirement.
- Does the regulatory requirement absolutely prohibit the
Respondent from hiring the CP due to a disability? Does the
regulation apply to the particular position the CP holds or
desires, and/or does it apply to the CP's specific disability? Or,
is the Respondent voluntarily choosing to adopt a
federal safety standard?
- If a Respondent is required by federal law to impose a safety
standard on a CP that results in screening out the CP based on
disability, does the regulatory requirement establish any
exceptions, waivers, or other mechanisms by which the CP would meet
the safety concerns embodied in the regulatory requirement?
- If there is an exception, waiver, etc., is it part of the
regulatory requirement? Does a person who qualifies for the
exception, waiver, etc. meet the safety requirements of the federal
regulation, or does the exception, waiver, etc., constitute an
exemption from meeting the regulation's safety requirements?
- For example, in Albertsons, the Supreme Court determined that
an employer does not have to follow an experimental waiver program
designed to permit persons with monocular vision to qualify for DOT
certification to operate commercial motor vehicles. This type of
waiver program did not modify the general safety standard that
precludes persons with monocular vision from obtaining
certification. Rather, the waiver program was designed to obtain
data to determine if changes should be made in the general safety
standard.
- The type of program at issue in Albertsons would be
different from a waiver program based on data already
collected that has shown that people qualifying for the waiver meet
the generalized safety requirements. Furthermore, an
employer could not require an individual to meet the general safety
standard if the waiver program specifically modified the
general safety standard.
- A Respondent cannot disqualify a CP for failure to meet
a general safety standard if the CP receives a waiver from, or is
eligible for an exception to, that standard. A Respondent must give
deference to the waiver or exception if it is predicated on
maintaining safety, constitutes or contains an alternative way to
maintain safety, and modifies the general safety
standard.
PART THREE: WHAT IMPACT DOES A CP'S APPLICATION FOR, OR RECEIPT
OF, DISABILITY BENEFITS HAVE ON A DETERMINATION AS TO WHETHER A CP
IS "QUALIFIED?"
In Cleveland, the Supreme Court adopted EEOC's
position that application for, or receipt of, Social Security
Disability Insurance (SSDI) benefits does not automatically
preclude an individual from meeting the ADA's definition of
"qualified."
- There is no inherent conflict between being eligible
for SSDI benefits and meeting the ADA's definition of
"qualified."
- Thus, there is no presumption that application for, or receipt
of, SSDI benefits defeats a CP's claim that s/he is "qualified" as
defined by the ADA.
- The analysis used by the Supreme Court to compare an
application for SSDI benefits and a CP's claim that s/he is
"qualified" also would apply to applications for other types of
disability benefits, such as Long Term Disability benefits or
workers' compensation.
- A CP must be able to explain his/her statements on the benefits
application that s/he is unable to work, and thus qualifies for
benefits, while also maintaining that s/he can perform the
essential functions of the position at issue in the ADA charge,
with or without reasonable accommodation.
- For example, because SSDI and the ADA serve different purposes,
they use different approaches to assess whether a person can work.
Therefore, it is possible for a CP to meet the ADA's definition of
"qualified" and also be eligible for SSDI benefits.
- Below is a general summary of the steps to follow in an ADA
investigation involving the receipt of disability benefits. For
more detailed information on questions to ask and evidence to seek,
Investigators should refer to the EEOC Enforcement Guidance on the
Effect of Representations Made in Applications for Benefits on the
Determination of Whether a Person is a "Qualified Individual with a
Disability" Under the ADA.
- Investigators should do the following:
- Review the CP's application for disability benefits. Determine
if there appears to be any discrepancies between claims made on the
application and the CP's contention that s/he is "qualified."
Carefully review apparent discrepancies to determine whether they
can be explained by differences in definitions or formulas.
- For example, a CP's claim of "total disability" does not
necessarily indicate that s/he cannot perform the essential
functions of a job, with or without reasonable accommodation. To
the contrary, "total disability" is a Social Security term that, in
this context, only means that s/he meets the criteria for SSDI
benefits.
- In reviewing the CP's application for disability benefits,
determine whether the CP was merely checking off boxes or fully
describing his/her disability and ability to work. To the extent
that there appears to be a discrepancy in finding a CP to be
"qualified," greater weight should be given to a CP's narrative
description of his/her disability and ability to work on a benefits
application form than information captured when a CP checked off a
box.
- Determine whether the CP can perform the essential functions of
the position at issue, with or without reasonable
accommodation.
- In many of these cases, a CP's ADA charge will include an
allegation of denial of reasonable accommodation. Whether a person
can work with reasonable accommodation generally is not a
consideration in determining whether a person is eligible for
disability benefits.
- For example, the Social Security Administration does not
consider whether a person could work if given a reasonable
accommodation, but focuses only on an SSDI applicant's ability to
work without accommodation. If the CP could have performed the
essential functions with a reasonable accommodation, then there is
no conflict between statements made on the SSDI application and a
CP's claim to be "qualified."
- Determine whether the CP's condition changed over time. If it
did, then a statement about the CP's disability on a benefits
application might not reflect his/her ability to perform the
essential functions, with or without reasonable accommodation, at
the time of the Respondent's employment decision.
- For example, a CP alleges that s/he was wrongfully terminated
in January. The following June, the CP filed an SSDI application.
If the CP could have performed the essential functions in January,
but by June his/her disability had deteriorated so that s/he could
no longer work, the CP would still be "qualified" during the
relevant period of time for the ADA charge.
If an Investigator has questions about anything in
these Instructions, please contact the OLC ADA Division attorney
assigned to your field office.
This page was last modified on December 13, 1999.
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