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NCD
National Council on Disability
The Americans with Disabilities
Act Policy Brief Series:
Righting the ADA
No. 6
Defining "Disability" in a Civil Rights Context: The Courts' Focus
on Extent of Limitations as Opposed to Fair Treatment and Equal
Opportunity
February 13, 2003
INTRODUCTION
In 1990, when it enacted the Americans with Disabilities Act (ADA),
Congress adopted a definition of the term "disability" that had
been used under Title V of the Rehabilitation Act since the 1970s.
The definition included individuals with a physical or mental impairment
that substantially limits at least one major life activity, individuals
with a history of such an impairment, and people who are regarded
by others or perceived as having such an impairment. In the legislative
history of the ADA, Congress indicated its intention that this definition
protect people with epilepsy, diabetes, mental health conditions,
amputees, and others who are able to mitigate the effects of their
impairments but nonetheless encounter discrimination in the workplace
and other settings because of fears, myths and stereotypes of individual
employers and other covered entities.
In the years since the ADA's enactment, the federal courts have
chipped away at the law's protected class by adopting overly narrow
rules for the analysis of who meets the statutory definition of
"disability." As a result of a string of Supreme Court decisions
and hundreds of cases in the lower federal courts, it has become
very difficult for individuals with certain health conditions to
establish that they have a disability for purposes of the ADA. People
with epilepsy, diabetes, psychiatric diagnoses, and other conditions
that are well controlled with medications or other disease management
strategies are routinely dismissed as outside the protection of
the statute. Win or lose, many employment discrimination victims
are now subjected to irrelevant questions about their personal lives
and private health information that have nothing to do with the
merits of their discrimination case. As a result of the narrowing
of the definition of disability, millions of Americans who continue
to experience disability discrimination are barred from challenging
these abuses in the courts.
When a plaintiff with epilepsy attempts to challenge his or her
job termination under the ADA, the most likely scenario is that
the person will be found not impaired enough to satisfy the new
"disability" standard established by the courts. The practical impact
of this result is that, regardless of the merits of the individual's
discriminatory treatment claim, this plaintiff never gets to prove
the case in a court of law. In those rare instances where the plaintiff
can produce adequate evidence to establish the existence of a disability
for purposes of the ADA, the employer will use often use this same
evidence of impaired functioning to support its claim that the plaintiff
is not qualified for the position in question. This Catch-22 was
not intended by Congress and has had the perverse effect that individuals
with disabilities who are clearly capable of working have become
unable to rely on the ADA for protection against disability discrimination.
In light of the unwillingness of the U.S. Supreme Court and the
lower federal courts to interpret the ADA's definition of disability
in an inclusive manner, consistent with the intent of the law's
drafters in Congress, it is time to rewrite the ADA's definition
of disability and restore civil rights protections to the millions
of Americans who experience disability-based discrimination. Disability
civil rights protections should be placed on equal footing with
the protections afforded other protected classes under Title VII
of the Civil Rights Act. Title VII does not require claimants to
make cumbersome evidentiary showings to establish that they fall
within a protected class. Similarly, an ADA plaintiff should be
able to focus on his or her qualifications for a particular position
and not be required to emphasize the irrelevant details about his
impairment in order to state a claim.
Section (I) of this paper provides an overview of the origins of
the statutory language found in the ADA definition of disability.
Section (II) considers the dramatically narrowed scope of the ADA's
coverage resulting from a series of hostile federal court decisions.
These rulings have construed the ADA's definition of disability
to exclude individuals with a vast array of significant physical
and mental conditions from any protections under the ADA. This outcome
is devastating, unjust, untenable, and contrary to the original
intent of the sponsors of the ADA. Section (III) looks to the experiences
of several states that have adopted independent and broader definitions
of "disability" for the purposes of antidiscrimination statutes.
Similarly, Section (IV) examines the models and definitions of "disability"
used beyond the borders of the United States, by other countries
and by the World Health Organization. Section (V) outlines a broader
approach to the statutory framework.
I. Origins of the ADA Definition of Disability
The definition of "disability" in the ADA is based on the definition
of "handicapped individual" contained in the Rehabilitation Act
of 1973, as amended in 1974. The effort to enact the Rehabilitation
Act began in 1972, when a group in Congress sought to beef up what
had been called the Vocational Rehabilitation Act by crafting a
broader bill.1 If enacted, the bill would significantly
expand federal efforts to improve the lives of people with disabilities
by moving from the traditional vocational rehabilitation model to
a more global approach. As President Nixon articulated it in 1973,
the year he finally signed a compromise version of the bill after
two vetoes, "the final goal of all rehabilitation services was to
improve in every possible respect the lives as well as livelihood
of individuals served."2 Title V of the 1973 Act established
affirmative action obligations for federal agencies and federal
contractors in the hiring of disabled workers, created a federal
agency charged with ensuring compliance with the access requirements
of the Architectural Barriers Act of 1968, and extended civil rights
protections to disabled employees or customers of entities that
receive federal support.
This final important element was codified in Section 504 of the
bill, stating: "No otherwise qualified handicapped individual in
the United States . shall, solely by reason of his handicap, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving
federal financial assistance." Rather than prohibiting discrimination
"on the basis of" handicap, Section 504 applied only to "otherwise
qualified handicapped individuals" who had encountered discrimination
"solely by reason of" their "handicap" or disability. This distinction
was important, because in order to satisfy Section 504, a person
with a disability would need to establish his or her status as a
"handicapped individual" before challenging an allegedly discriminatory
act such as a refusal to hire. In contrast, under Title VII, a woman
or man seeking to challenge a hiring decision as gender discrimination
is assumed to be a member of the protected class and is able to
focus on the evidence related to the alleged discrimination.
The 1973 Act used a vocational rehabilitation model, defining a
handicapped individual as a person who "has a physical or mental
disability which for such individual constitutes or results in a
substantial handicap to employment [and] can reasonably be expected
to benefit in terms of employability from vocational rehabilitation
services . . ."3 In 1974, Congress amended the definition
for the purposes of the nondiscrimination provisions, defining handicapped
individual as a "person who (A) has a physical or mental impairment
which substantially limits one or more of such person's major life
activities, (B) has a record of such an impairment, or (C) is regarded
as having such an impairment."4 Under the first prong,
an individual was considered "handicapped" if he had a physical
or mental impairment that substantially limited one or more major
life activities. The second prong extended protection to people
with a history of such an impairment, and the third prong provided
coverage for individuals who were regarded by others as having such
an impairment. The intention behind adopting the now-familiar three-pronged
definition was to broaden the scope of coverage to further the civil
rights purposes of the nondiscrimination mandate.5
The Rehabilitation Act of 1973 was not the first effort to enact
a federal law prohibiting disability discrimination. In 1972, Senator
Hubert H. Humphrey Jr. (D-MN) proposed to amend the Civil Rights
Act of 1964 to insert the word "handicap" among the list of protected
classes in Title VII of that law.6 Title VII already
outlawed discrimination "on the basis of" characteristics like race,
color, national origin, gender and religion. Aware of the discrimination
that artificially limited Americans with disabilities in part because
of his personal experience of his granddaughter with Down syndrome
being refused admission by a public school, Senator Humphrey attempted
unsuccessfully in 1972 to extend civil rights protections to Americans
with disabilities by adding one word in key places in the Civil
Rights Act of 1964.
In 1978, after a long battle on the part of disability advocates
around the country to get regulations released interpreting Section
504, the Department of Health, Education and Welfare finally promulgated
the regulatory standards that would further define the nature of
federally prohibited disability discrimination under Section 504.7
These regulations included the three-pronged definition of a "handicapped
individual," and defined "physical or mental impairment" to include
numerous medical conditions which may be controlled or mitigated
through treatment, including emotional or psychological disorders.8
Further, the commentary to the regulations provides a non-exclusive
list of additional examples, including hearing impairments, epilepsy,
multiple sclerosis, cancer, heart disease, diabetes, drug addiction,
and alcoholism.9 The commentary notes that federal disability
nondiscrimination law should not be limited to "traditional disabilities,"
nor to "severe disabilities."10
In late 1986, the National Council on the Handicapped (now known
as the National Council on Disability) began work on the first draft
of what would become the ADA. This body, which was created in the
1978 reauthorization of the Rehabilitation Act and had become an
independent federal agency in that law's 1984 reauthorization, is
charged with advising the President and the Congress on public policy
issues affecting people with disabilities. NCD was made up of 15
members, all appointed by President Reagan and confirmed by the
Senate. Under the leadership of NCD chairperson Sandra Swift Parrino
and vice chairperson Justin Dart, Jr., NCD issued a 1986 report
called Toward Independence , which called on Congress to
"enact a comprehensive law requiring equal opportunity for individuals
with disabilities, with broad coverage and setting clear, consistent,
and enforceable standards prohibiting discrimination on the basis
of handicap."11 NCD went on to recommend that:
[The proposed law] should straightforwardly prohibit 'discrimination
on the basis of handicap,' without establishing any eligibility
classification for the coverage of the statute. Discrimination on
the basis of handicap should be broadly construed to apply the requirements
of the statute to all situations in which a person is subjected
to unfair or unnecessary exclusion or disadvantage because of some
mental or physical impairment, perceived impairment, or history
of impairment.12
NCD's approach constituted a clear endorsement of Hubert Humphrey's
original approach to federal disability non-discrimination, and
an unambiguous rejection of the approach adopted in Section 504
of the Rehabilitation Act and the regulations interpreting that
definition. NCD asserted that the 504 approach was problematic because
it forced people to identify as a person with a disability according
to a medical model that emphasized the nature and scope of their
"impairments" and "limitations."13 NCD noted at the time
that the 504 approach did not provide comprehensive protection and
allowed individuals to fall through the cracks.14 It
also noted the problem with evidence of the nature and scope of
an individual's impairment being used against that individual when
his or her qualifications for a particular position are assessed.15
In 1988, NCD issued a follow-up report called On the Threshold
of Independence, which included as an appendix a draft version
of the Americans with Disabilities Act. The draft bill was based
on the approach outlined in the recommendations in Toward Independence,
augmented by the comments and advice received from disability advocates
and Congressional leaders in the intervening 18 months. The draft
bill included a definition of "on the basis of handicap" and a definition
of "physical or mental impairment," as follows:
(1) ON THE BASIS OF HANDICAP. - The term "on the basis of handicap"
means because of a physical or mental impairment, perceived impairment,
or record of impairment.
(2) PHYSICAL OR MENTAL IMPAIRMENT. - The term "physical or mental
impairment" means-
(A) any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body
systems:
(i) the neurological system;
(ii) the musculoskeletal system:
(iii) the special sense organs, and respiratory organs, including
speech organs;
(iv) the cardiovascular system:
(v) the reproductive system;
(vi) the digestive and genitourinary systems;
(vii) the hemic and lymphatic systems;
(viii) the skin; and
(ix) the endocrine system; or
(B) any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities.
(3) PERCEIVED IMPAIRMENT. - The term "perceived impairment" means
not having a physical or mental impairment as defined in paragraph
(2), but being regarded as having or treated as having a physical
or mental impairment.
(4) RECORD OF IMPAIRMENT. - The term "record of impairment" means
having a history of, or having been misclassified as having, a
mental or physical impairment.16
Importantly, this 1988 draft remained true to NCD's 1986 admonition
that the ADA not establish an onerous eligibility classification
for coverage under the statute, and did not incorporate the 504
approach of requiring that the impairments "substantially limit
one or more major life activities."
NCD's influence was tangible in the first version of the ADA, introduced
in April of 1988 by Senators Lowell Weicker (R-CT) and Tom Harkin
(D-IA) and Representative Tony Coelho (D-CA).17 In the
Americans with Disabilities Act of 1988, as the bill was called,
the 504 definitional approach was discarded in favor of the broader
language developed by NCD in consultation with disability advocates
around the country. When Senator Weicker lost to Joseph Lieberman
in his Senate election in November of 1988, Senator Harkin became
the chief sponsor of the ADA in the Senate. Concerned that the 1988
version of the bill was too extreme to be enacted and signed by
President Bush, Senator Harkin set about rewriting the bill into
a version that was more likely to pass.18 The definition
in Senator Harkin's new version of the ADA, introduced in 1989,
simply repeated the language that had been used under Section 504.
This language, which remained in the bill that passed in 1990, defined
"disability," with respect to an individual, as:
(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.19
Although some in the disability advocacy community protested what
they viewed as a weakening of the 1988 legislation with regard to
the definition of disability,20 the community came to
rally behind the new bill as their best hope for a law that could
actually garner bipartisan support in Congress and the endorsement
of the Bush Administration. Also, in light of the case law interpreting
the 504 language, few would have expected the narrowing interpretations
of the 1990s.
II. The Unexpected Definition of Disability Crisis
In 1989, the sponsors of the Americans with Disabilities Act chose
to mirror the definition of disability found in the Rehabilitation
Act of 1973, as amended. This decision was pragmatic: a statute
that reiterates existing standards is far more likely to succeed
politically. Equally important, the judicial interpretations of
the definition in the Rehabilitation Act in the 1980s had been broad
and inclusive, consistent with the remedial purposes of the legislation.
At the time of the ADA hearings, existing Rehabilitation Act case
law extended civil rights protections to numerous groups of persons
with disabilities which were either wholly or partially mitigated
through treatment and other measures. For example, insulin-controlled
diabetes was held to be covered under Section 504 prior to the passage
of the ADA.21 Similarly, epilepsy and seizure disorders
were repeatedly deemed disabilities.22 Courts also recognized
that diseases such as HIV, even in their "asymptomatic" phases,
may be disabilities.23 The pre-ADA courts also held that
Section 504 protects recovered alcoholics and drug users.24
Additionally, the "regarded as" prong of the Rehabilitation Act
had been broadly interpreted by the United States Supreme Court
to protect persons who were limited and discriminated against because
of the "prejudice, stereotype, or unfounded fear" of others. School
Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987). "By
includ[ing] not only those who are actually physically impaired,
but also those who are regarded as impaired . . . 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." Id. at 284. Further, according
to Arline, "a broad definition, one not limited to so-called traditional
handicaps, is inherent in the statutory definition." Id.
at 280 n.5.25 The lower courts employed similarly broad
interpretations.26 By incorporating into the ADA virtually
the same definition of disability contained in Section 504, Congress
intended to adopt and ratify that case law. Bragdon, 118
S. Ct. at 2208 (Congress is presumed to know the state of the law
when it passes legislation, and its use of terms which have been
previously construed indicates an intent to ratify such interpretations).27
From the relatively rosy vantage point of 1989, it would have been
difficult to predict the onslaught of miserly decisions that have
greeted the ADA's definition of disability. Beginning in the mid-1990s,
numerous federal courts applying an overly restrictive reading of
the federal definition have dismissed claims brought by persons
facing egregious discrimination on the basis of significant mental
and physical conditions. Indeed, a widely circulated study conducted
by the American Bar Association and published in 1998 found that,
among ADA employment cases filed since 1992, employers won 92 percent
of the time, often due to the restrictive application of the federal
definition. 22 Mental and Physical Disability L. Rep. 403, 404 (May-June
1998).28
The culmination of this devastating trend was "the Sutton
trilogy," three Supreme Court cases decided in the Summer of 1999.
In Sutton v. United Airlines, the Supreme Court ruled that
individuals with successfully treated medical conditions - persons
who are currently functioning well due to mitigating measures such
as medications or prosthetic devices - are not protected as "persons
with disabilities" under the ADA. Boldly narrowing the protected
class in a manner opposed by the federal agencies Congress entrusted
to enforce the statute, this ruling erased protections for millions
of persons with stabilized diabetes, seizure disorders, heart disease,
and psychiatric conditions.
The Sutton Court also narrowly construed the "regarded as"
prong to virtually eliminate most "failure-to-hire" claims. Accepting
the "class of jobs" rule contained in the EEOC's regulations, the
Court concluded that two applicants rejected on the basis of their
vision impairment were not regarded as substantially limited in
working, as there was no perception regarding a broad class of jobs.
The Court's narrow construction was bluntly articulated: "An employer
runs afoul of the ADA when it makes an employment decision based
on a physical or mental impairment, real or imagined, that is regarded
as substantially limiting a major life activity. Accordingly, an
employer is free to decide that physical characteristics or medical
conditions that do not rise to the level of an impairment - such
as one's height, build, or singing voice - are preferable to others,
just as it is free to decide that some limiting, but not substantially
limiting, impairments make individuals less than ideally suited
for a job." 527 U.S. at 490-91.
The latest Supreme Court ruling, the unanimous Toyota v. Williams,
took the already battered statutory language and added still additional
barriers to coverage. Under Williams, the phrase "substantially
limited" is restricted further to "prevented or severely restricted."
Additionally, the major life activity of "performing manual tasks"
was limited to manual tasks that are "central to most people's daily
lives." Further, contrary to the usual rule of statutory construction
in the context of civil rights legislation, the Court announced
that the definitional phrase "substantially limited in a major life
activity" must be "interpreted strictly to create a demanding standard
for qualifying as disabled." 534 U.S. 184, 197-98 (2002).
In the hundreds of federal cases ruling that ADA plaintiffs are
not disabled, certain patterns emerge. In "actual" or prong one
disability cases, hostile court rulings frequently turn on whether
the individual is "substantially limited." Many opinions hold that
while the plaintiff has certain documented limitations as a result
of a mental or physical impairment, these limitations are not great
enough to constitute substantial limitations. Persons with
mental disabilities have been particularly hard hit by the federal
judiciary's miserly reading of the definition of disability.29
However, persons with significant physical disabilities have also
been excluded.30 To reach this conclusion, courts often
note how capable the particular individual is in various activities
- an analysis from the vocational rehabilitation model of disability
- and/or how incompetent the average person in society is by comparison.31
In many cases, the plaintiff deemed non-disabled required only the
most modest steps from their employer in order to retain their employment
- a minor alteration or simply garden-variety equal treatment.
In cases relying upon the "regarded as" or third prong - the provision
intended by Congress to ensure the broadest possible standard to
combat myths and stereotypes - plaintiffs face an even more onerous
challenge: not only must they demonstrate the illusive "substantial
limitation," but they must situate this construct in the theoretical
mind of the employer.32 The "class of jobs" regulation
adopted by the EEOC and embraced by virtually every circuit makes
this difficult task virtually impossible. In failure-to-hire cases,
in which rejected applicants claim that they were unfairly excluded
by medical screening despite their actual ability to perform the
job, employers routinely convince courts that they only "regarded"
the applicant as unable to perform a single job.
A few ADA plaintiffs have faltered on the requirement of a mental
or physical "impairment," including cases in which the worker is
discriminated against on the basis of obesity or size.33
Additional obstacles are associated with the term "major life activity,"
particularly when the activity limited is working or performing
manual tasks.34 Under existing case law, persons with
orthopedic impairments are highly likely to be excluded from protection
because they cannot show a "substantial limitation" in a broad enough
range of jobs or manual tasks.35 These individuals have
often acquired their repetitive stress injuries or back injuries
on the job while performing services for the summary judgment-winning
defendant. However, with the ADA judicially recast as a statute
protecting only individuals with the most severe impairments, most
workers facing discrimination can no longer obtain a federal remedy.
III. Disability Definitions Used in State Civil Rights Laws
As the U.S. Supreme Court noted in Garrett, "by the time
that Congress enacted the ADA in 1990, every State in the Union
had enacted such measures. At least one Member of Congress remarked
that 'this is probably one of the few times where the States are
so far out in front of the Federal Government, it's not funny.'
Hearing on Discrimination Against Cancer Victims and the Handicapped
before the Subcommittee on Employment Opportunities of the House
Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987)."
Bd. of Trustees v. Garrett, 531 U.S. 356, 368 n.5 (2001).
At that time in the late 1980s, state disability laws presented
a diverse set of definitions for the terms "handicap" and "disability."
Some state statutes contained no definitions. Throughout the early
1990s, however, many of these statutes were amended to more closely
reflect the federal ADA, which was then regarded as the "state of
the art" in disability discrimination. For example, in 1974 California
enacted a prohibition against discrimination on the basis of "physical
handicap," and adopted a broad definition of "physical handicap"
that did not include the requirement of a limitation in a major
life activity: "'Physical handicap' includes impairment of sight,
hearing, or speech, or impairment of physical ability because of
amputation or loss of function or coordination, or any other health
impairment which requires special education or related services."
This definition - which included no requirement of a "substantial
limitation of a major life activity - was interpreted to bar discrimination
against a broad range of physical impairments.36 In 1992,
however, California amended its law in response to the enactment
of the federal ADA, and changed its definition of physical handicap
to more closely parallel the ADA definition by requiring a "limitation"
(but not a "substantial limitation") of a major life activity.
Similarly, at the time the ADA was being considered, the state
of Michigan's disability discrimination law defined "handicap" broadly
as: "a determinable physical or mental characteristic of an individual
or a history of the characteristic which may result from disease,
injury, congenital condition of birth, or functional disorder which
characteristic . . . is unrelated to the individual's ability to
perform the duties of a particular job . . .." Mich. Code L. § 37.1103(b)(i)
(1989); see also Sanchez v. Kostas LaGoudakis (Sanchez I),
440 Mich. 496, 486 N.W.2d 657 (1992) (reviewing and applying 1989
definition to find that person perceived to have HIV/AIDS could
pursue her claim). In 1990, however, the Michigan statute was amended
to require that the characteristic "substantially limit[ ] 1 or
more of the major life activities of that individual." Sanchez
I, 440 Mich. at 501 n.12. Michigan's Supreme Court has construed
the 1990 version of its statute narrowly, and consistent with Sutton,
to exclude a plaintiff's claims of "regarded as" disability discrimination
on the basis of her multiple sclerosis. Michalski v. Bar-Levav,
463 Mich. 723, 625 N.W.2d 754 (2001) (noting that prior version
"contained no requirement that the determinable physical or mental
characteristic substantially limit a major life activity," and concluding
that the lower court's reliance on Sanchez I was thus "misplaced").
During the same era, the District of Columbia anti-discrimination
statute defined handicap as "a bodily or mental disablement which
may be the result of injury, illness or congenital condition and
for which reasonable accommodation can be made." D.C. Code § 1-2512(a)(1)(1987).
In 1994, this provision was repealed, and replaced with the federal
disability definition. See Strass v. Kaiser Foundation Health
Plan, 744 A.2d 1000 (D.C. App. 2000) (tracking history of definition,
and describing amended statute as "more restrictive").
Today, the vast majority of the states - approximately 43 - have
adopted anti-discrimination laws that track the ADA definition of
disability virtually verbatim.37 Several states have
taken their own paths, however. California and Rhode Island have
recently amended their disability discrimination statutes to explicitly
reject federal case law narrowing the scope of the protected class.
Further, Connecticut, New Jersey, New York, and Washington state
never amended their statutes to reflect the ADA, and thus have never
required a "limitation" or "substantial limitation" of a "major
life activity" to demonstrate disability. Finally, the state Supreme
Courts of Massachusetts and West Virginia have recently rejected
United States Supreme Court case law. These States provide important
examples for consideration as we seek to redefine "disability" for
purposes of the federal ADA.
1. California.
California's employment discrimination statute has never precisely
mirrored the federal ADA's definition of disability. In response
to the increasingly narrow federal case law on definition, disability
rights litigators pointed out the differences between the federal
and state laws - that the state law is broader because it does not
require a substantial limitation of a major life activity. These
distinctions engendered significant legal debate.38 In
2000, in response to this legal debate, as well as the worsening
state of federal disability discrimination law, the California State
Legislature again amended its statute to make perfectly clear that
an independent and broader definition of disability applies under
state law, enacting the following definitions of mental and physical
disability:
"Mental disability" includes . . . Having any mental or psychological
disorder or condition, such as mental retardation, organic brain
syndrome, emotional or mental illness, or specific learning disabilities,
that limits a major life activity. . . . Having a record or history
of a mental or psychological disorder or condition . . . which
is known to the employer . . .. Being regarded or treated by the
employer or other entity covered by this part as having, or having
had, any mental condition that makes achievement of a major life
activity difficult. Being regarded or treated . . . as having,
or having had, a mental or psychological disorder or condition
that has no present disabling effect, but that may become a mental
disability . . .. Cal. Gov't Code § 12926(i).
"Physical disability" includes . . . Having any physiological
disease, disorder, condition, cosmetic disfigurement, or anatomical
loss that . . . [A]ffects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense organs,
respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and endocrine
[and] Limits a major life activity. . . . Having a record or history
of a disease, disorder, condition, cosmetic disfigurement, anatomical
loss, or health impairment . . . which is known to the employer
. . .. Being regarded or treated . . . as having, or having had,
any physical condition that makes achievement of a major life
activity difficult. Being regarded or treated . . . as having,
or having had, a disease, disorder, condition, cosmetic disfigurement,
anatomical loss, or health impairment that has no present disabling
effect but may become a physical disability . . .. Cal. Gov't
Code § 12926(k).
Notably, the revised provisions do not require an "impairment"
or "disorder"; rather, a mental or physiological "condition" is
sufficient.
Additionally, with the 1999 Sutton trilogy freshly decided
- a dramatic demonstration of the often surprising results of statutory
interpretation - the Legislature set forth explicit instructions
on how these definitions were to be construed. These rules respond
to a number of problems associated with the federal definition as
interpreted, including the obstacles to claims brought under the
"actual" disability prong created by the "mitigating measures" rule
and an extreme interpretation of the word "substantially," as well
as the barriers to failure-to-hire and other discrimination cases
brought under the "regarded as" prong of disability caused by the
"class of jobs" analysis. Thus, the Legislature stated:
"Limits" shall be determined without regard to mitigating measures
such as medications, assistive devices, prosthetics, or reasonable
accommodations, unless the mitigating measure itself limits a
major life activity. Cal. Gov't Code §§ 12926(i)(1)(A), (k)(1)(B)(i).
Under the law of this state, whether a condition limits a major
life activity shall be determined without respect to any mitigating
measures, unless the mitigating measure itself limits a major
life activity, regardless of federal law under the Americans with
Disabilities Act of 1990. Cal. Gov't Code § 12926.1.39
Physical and mental disabilities include, but are not limited
to, chronic or episodic conditions such as HIV/AIDS, hepatitis,
epilepsy, seizure disorder, diabetes, clinical depression, bipolar
disorder, multiple sclerosis, and heart disease. Cal. Gov't Code
§ 12926.1.
The Legislature has determined that the definitions of "physical
disability" and "mental disability" under the law of this state
require a "limitation" upon a major life activity, but do not
require, as does the Americans with Disabilities Act of 1990,
a "substantial limitation." This distinction is intended to result
in broader coverage under the law of this state than under that
federal act. Cal. Gov't Code § 12926.1. A mental or psychological
disorder or condition, or a physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss, limits a major life
activity if it makes the achievement of the major life activity
difficult. Cal. Gov't Code § 12926(i)(1)(B), (k)(1)(B)(ii).
Under the law of this state, "working" is a major life activity,
regardless of whether the actual or perceived working limitation
implicates a particular employment or a class or broad range of
employments. Cal. Gov't Code § 12926.1.
Additionally, although the 2000 provisions were added prior to
the Supreme Court's opinion in Williams, the amendments include
an explicit rejection of the strict construction advised by that
opinion, and instead require broad interpretations of the terms
"disability" and "major life activities":
The law of this state contains broad definitions of physical
disability, mental disability, and medical condition. It is the
intent of the Legislature that the definitions of physical disability
and mental disability be construed so that applicants and employees
are protected from discrimination due to an actual or perceived
physical or mental impairment that is disabling, potentially disabling,
or perceived as disabling or potentially disabling. Cal. Gov't
Code § 12926.1. "Major life activities" shall be broadly construed
and shall include physical, mental, and social activities and
working. Cal. Gov't Code § 12926(i)(1)(C), (k)(1)(B)(iii).
The new provisions are plainly designed to shift the focus of trial
courts away from coverage and toward the merits of particular cases.40
2. Connecticut.
Connecticut's state law has long defined "physically disabled"
as referring to "any individual who has any chronic physical handicap,
infirmity or impairment, whether congenital or resulting from bodily
injury, organic processes or changes or from illness, including
but not limited to, epilepsy, deafness or hearing impairment or
reliance on a wheelchair or other remedial appliance or device."
Conn. Gen. Stat. § 461-51(15). Thus, while requiring an "impairment,"
the state law has never required a "limitation" or "substantial
limitation" of a major life activity. Until recently, the state
law did not include a prohibition on discrimination on the basis
of mental disability. In 2001, the state Legislature added this
protection, and defined "mental disability" broadly - albeit medically
- as follows:
"Mental disability" refers to an individual who has a record
of, or is regarded as having one or more mental disorders, as
defined in the most recent edition of the American Psychiatric
Association's "Diagnostic and Statistical Manual of Mental Disorders."
2001 Conn. Public Act No. 28 (amending § 46a-51).
3. New Jersey.
Unlike many states, New Jersey never amended its disability discrimination
statute to conform to the ADA definition of disability. The New
Jersey Legislature first amended its civil rights statute to bar
discrimination on the basis of "physical handicap" in 1972. In 1978,
the state expanded its protections to persons with "non-physical
handicaps." See Viscik v. Fowler Equipment Co., 173 N.J.
1 (2002) (reviewing history of statute). The original definition
remains virtually unchanged to the present day, and states:
"Handicapped" means suffering from physical disability, infirmity,
malformation or disfigurement which is caused by bodily injury,
birth defect or illness including epilepsy, and which shall include,
but not be limited to, any degree of paralysis, amputation, lack
of physical coordination, blindness or visual impediment, deafness
or hearing impediment, muteness or speech impediment or physical
reliance on a service or guide dog, wheelchair, or other remedial
appliance or device, or from any mental, psychological or developmental
disability resulting from anatomical, psychological, physiological
or neurological conditions which prevents the normal exercise
of any bodily or mental functions or is demonstrable, medically
or psychologically, by accepted clinical or laboratory diagnostic
techniques. Handicapped shall also mean suffering from AIDS or
HIV infection.
N.J. Stat. § 10:5-5 (q). Thus, New Jersey's statute has never required
a "limitation" or "substantial limitation" in a major life activity.
In 1982, the New Jersey Supreme Court endorsed a broad construction
of this statute, ruling that the definition is not limited to "severe"
disabilities:
We reject such an interpretation of the New Jersey statute.
We need not limit this remedial legislation to the halt, the maimed
or the blind. The law prohibits unlawful discrimination against
those suffering from physical disability. As remedial legislation,
the Law Against Discrimination should be construed "with that
high degree of liberality which comports with the preeminent social
significance of its purposes and objects."
Andersen v. Exxon Co., 89 N.J. 483, 495, 446 A.2d 486 (1982).
This year, the New Jersey Supreme Court reiterated Andersen's central
holding, stating:
The term 'handicapped' in LAD [Law Against Discrimination] is
not restricted to 'severe' or 'immutable' disabilities and has
been interpreted as significantly broader than the analogous provision
of the Americans with Disabilities Act.
Viscik, 173 N.J. at 16 (citing Failla v. City of Passaic,
146 F.3d 149, 154 (3d Cir. 1998)).41 Indeed, the statute
has been interpreted to cover a broad range of medical conditions.42
However, medical evidence - including an "accepted" medical diagnosis
- is required.43
4. New York.
New York's anti-discrimination statute defines the term "disability"
as follows: "(a) a physical, mental or medical impairment resulting
from anatomical, physiological, genetic or neurological conditions
which prevents the exercise of a normal bodily function or is demonstrable
by medically accepted clinical or laboratory diagnostic techniques
or (b) a record of such an impairment or (c) a condition regarded
by others as such an impairment . . .." NY CLS Exec § 292 (21).44
Thus, while requiring an "impairment," New York has never required
a "limitation" or "substantial limitation" of a major life activity.
In State Div. of Human Rights v. Xerox, 65 N.Y.2d 213, 480
N.E.2d 695, 491 N.Y.S.2d 106 (1985), the New York Court of Appeals
upheld the trial court's finding that obesity was a handicap within
that state's anti-discrimination statute. The highest court rejected
the employer's contention that the law covered only "immutable disabilities,"
and found that "the statute protects all persons with disabilities
and not just those with hopeless conditions." Id. The court also
found that the complainant's obesity was a "medical condition" that
was "clinically diagnosed" in accordance with the statutory definition.
Id.; see also McEniry v. Landi, 84 N.Y.2d 554, 644 N.E.2d
(1994) (alcoholism is covered disability). Again, as with the New
Jersey statute, medical evidence and a medical diagnosis is required.45
5. Washington.
Washington State's Law Against Discrimination, Rev. Code Wash.
§ 49.60.180, prohibits discrimination on the basis of a "sensory,
mental, or physical disability," but provides no definition for
this phrase. However, the state's Human Rights Commission issued
regulations providing the following guidance:
"The presence of a sensory, mental, or physical disability"
includes, but is not limited to, circumstances where a sensory,
mental, or physical condition: (a) Is medically cognizable or
diagnosable; (b) Exists as a record or history; (c) Is perceived
to exist whether or not it exists in fact.
A condition is a "sensory, mental, or physical disability" if
it is an abnormality and is a reason why the person having the
condition did not get or keep the job in question, or was denied
equal pay for equal work, or was discriminated against in other
terms and conditions of employment, or was denied equal treatment
in other areas covered by the statutes. In other words, for enforcement
purposes a person will be considered to be disabled by a sensory,
mental, or physical condition if he or she is discriminated against
because of the condition and the condition is abnormal.
Wash. Admin. Code § 162-22-020(2); see also Pulcino v. Federal
Express Corp., 141 Wn.2d 629, 641 & n.3, 9 P.3d 787 (2000) ("the
Americans with Disability Act of 1990's (ADA) definition of 'disability'
is narrower" than state definition) (plaintiff with lumbar strain
and broken foot restricting her to light duty was "disabled" under
state law). Thus, echoing the social model of disability, Washington's
regulation finds "disability" where discrimination occurs on the
basis of some abnormal physical or mental condition.
6. Massachusetts and West Virginia.
Embracing virtually every argument advanced by disability rights
advocates before the United States Supreme Court in Sutton,
the Massachusetts Supreme Judicial Court ruled that "mitigating
measures" should not be considered in determining whether an individual
has a "handicap" under Massachusetts antidiscrimination law. Dahill
v. Police Dep't of Boston, 434 Mass. 233, 748 N.E.2d 956 (2001).
According to the Dahill court, the public policy underlying
the antidiscrimination statute supported its interpretation that
mitigating measures should be excluded. By contrast, embracing the
Sutton standard would "exclude[ ] from the statute's protection
numerous persons who may mitigate serious physical or mental impairments
to some degree, but who may nevertheless need reasonable accommodations
to fulfill the essential functions of a job." Id. at 240
& n.10 (noting need of employees with controlled diabetes, epilepsy,
or heart disease to take occasional time off for doctor's appointments,
to take medication, or to receive testing or therapy).
The West Virginia Supreme Court rejected another bulwark of the
federal disability definition jurisprudence - the principle that
a person excluded from employment on the basis of a physical or
mental impairment cannot proceed on a "regarded as" theory if he
cannot show a perceived limitation in a broad class of jobs, but
can "only" show that the employer regarded him as limited in one
job.46
IV. INTERNATIONAL APPROACHES TO DISABILITY CIVIL RIGHTS LAWS
Just as state law approaches to disability civil rights laws vary,
international approaches are even more diverse. Some countries emphasize
inclusiveness and comprehensiveness, while others rely heavily on
strict medical assessments. Many countries define disability discrimination
in terms of the social model, emphasizing the intersection between
the individual and the environment, where discrimination derives
from the existence of barriers to full participation. Other countries
focus on the medical model, assessing the extent of functional limitations
experienced by the individual, with little consideration of how
those limitations interact with the individual's environment. In
the first model, the evidence that is most relevant would measure
how a person's environment has artificially limited that person's
opportunities to participate fully. In the second model, the person
alleging discrimination typically must begin with medical evidence
of the existence of an impairment and documentation of how that
impairment affects functioning.
1. Zimbabwe.
One of the most intriguing international disability civil rights
laws was enacted by Zimbabwe in 1992. Zimbabwe's Disabled Persons
Act defines a disabled person as "a person with a physical, mental
or sensory disability . which gives rise to physical, cultural or
social barriers inhibiting him from participating at an equal level
with other members of society."47 This definition is
somewhat circular, as it uses the term "disability" in the context
of a definition of a "disabled" person. However, read in context,
the term "disability" in the Zimbabwe law could be replaced with
the word "impairment." The law does not emphasize the extent of
a person's impairment, but instead looks at how that impairment
"gives rise to" or results in "barriers" that inhibit "equal" participation
as compared with society at large.
2. Venezuela.
Similarly, Venezuela uses a social model approach in its 1994 Law
of Integration of Persons with Disabilities. The Venezuela law,
translated from the Spanish, defines persons with disabilities as
"those whose opportunities for social integration are diminished
due to a physical, sensory or intellectual impediment, of differing
levels or degrees, that limit his or her ability to carry out any
activity."48 Like the Zimbabwe law, the Venezuela law
focuses on how opportunities for social integration are limited
by the person's disability, rather than emphasizing the need to
show a particular level of functional impairment for purposes of
qualifying for protection under the statute.
3. Hungary.
In 1998, Hungary passed its "Equalization Opportunity Law," which
represents a bit of a hybrid approach, hinting at a social model
but incorporating strong medical restrictions on who is protected.
Section 4 of that law defines a "person living with disability"
as "anyone who is to a significant extent or entirely not in possession
of sensory - particularly sight, hearing - locomotor or intellectual
functions, or who is substantially restricted in communication and
is thereby placed at a permanent disadvantage regarding active participation
in the life of society."49 Although the law references
a "disadvantage" with regard to participating "active[ly]" in "society,"
the only people who get to make such a showing are people with "traditional"
disabilities - those who are "significant[ly]" or "substantially"
restricted in sensory, mobility, cognitive, or communicative functioning.
4. World Health Organization Approach.
The World Health Organization published an International Classification
of Impairments, Disabilities and Handicaps (ICIDH) in 1980. This
document has had a tangible impact on disability non-discrimination
laws in many countries. The ICIDH provides a conceptual framework
for disability with three parts: First, an "impairment" is "any
loss or abnormality of psychological, physiological or anatomical
structure or function." Second, a "disability" is "any restriction
or lack (resulting from an impairment) of an ability to perform
an activity in the manner or within the range considered normal
for a human being." Finally, "handicap" is defined as "a disadvantage
for a given individual, resulting from an impairment or a disability,
that limits or prevents the fulfillment of a role that is normal
(depending on age, sex, and social and cultural factors) for that
individual." In this approach, the concept of "impairment" relies
upon a medical model analysis (the WHO provides a list of health
conditions in its International Classification of Diseases (ICD-10)),
"disability" requires a functional analysis, and the concept of
"handicap" incorporates a social model of disability.
In 2001, the World Health Organization published a new version
of the ICIDH. The document, referred to as the ICIDH-2, is officially
titled the "International Classification of Functioning and Disability,"
or ICF.50 Under this new system, which is intended for
use in a wide variety of contexts, including rehabilitation, education,
statistics, and policy, the three concepts of impairment, disability
and handicap have been replaced by two concepts - (1) "body functions
and structures" (replacing "impairment"); and (2) "activities and
participation" (replacing "handicap") - which are thought to extend
the prior categories to permit the description of positive as well
as negative experiences. The prior concept of "disability," or "functional"
abilities or inabilities, is now conceived of as an umbrella concept
applicable to either the body perspective, or to the individual
and society perspective. The new system explicitly contemplates
an assessment of "environmental factors," including the physical
environment, the social environment and the impact of attitudes,
and of "personal factors," which correspond to the personality and
characteristic attributes of an individual.51
Although the ICIDH-2 is too complicated and nuanced to be used
in an American law prohibiting disability discrimination - the document
has 39 chapters, and in English spans 299 pages - it does reflect
evolving global views on the nature of disability and the complex
interaction between a person, his or her body, and his or her environment
that can result in a classification of "disability." Although many
countries still use disability definitions that are deeply rooted
in the medical model and emphasize the extent of impaired functioning,
there is a growing world consciousness that functional limitations
are frequently the result of inaccessible environments and lack
of access to assistive technology and other long-term services and
supports, rather than attributable to medical diagnosis and disease
pathology.
V. REVISTING THE ADA
In light of the case law interpreting the definition of "disability"
under the ADA, now is the time to re-consider the statutory framework
for alleging disability discrimination, to propose alternatives,
and to spur discussion on these matters.52 The existing
models of disability definitions and legislation provide a starting
point for outlining legislative options.
It is recognized that many employers have argued successfully to
elected officials and courts that disability discrimination laws
should only protect people with significant impairments that are
uncorrected or uncorrectable. However, it is worth noting that the
broad approach adopted by a number of states has not led to an avalanche
of frivolous claims or onerous hardships for employers in those
states. Although the current legal trend is to create boundaries
around who can and cannot use a disability non-discrimination law,
it is difficult to understand why prohibition of discrimination
on the basis of disability should operate differently from prohibition
of discrimination on the basis of race, national origin, gender
or religion. In all of these cases, Title VII provides federal civil
rights protections regardless of the specifics of one's particular
profile. Title VII protects a white Catholic male from discrimination,
as it does an African-American Baptist female. Yet, under the ADA
as it currently stands, in order to come under the law's protections,
a person must establish that he or she is far enough outside the
range of "normal" to deserve civil rights protections. This is bad
policy. If disability is a normal or natural part of the human experience
then why not extend the protections of the ADA more broadly?
A non-discrimination law is not a retirement program or a special
license plate program. Whereas there are good reasons to carefully
circumscribe who gets to retire because of their disability and
who gets to use specially designated parking because of their mobility
impairment, there is not a good reason to exclude people from the
protections of the ADA. Fair treatment and barrier removal are good
things that don't need to be doled out to the "truly needy." When
we remove barriers to full participation in the name of disabled
people, everyone benefits. An enlightened implementation of the
ADA will enable victims of discrimination to focus on how they were
treated, not how worthy they are of having civil rights protections.
A model to consider in re-drafting the ADA's definition of disability
is also found across our borders in the disability discrimination
statutes adopted by many countries since 1990. Many of these statutes
define the problem as the discrimination that occurs when an impairment
interacts with society's barriers; the severity of the impairment
is not emphasized. Indeed, one could argue that disability discrimination
never happens "because of" a person's health condition or
impairment, but instead is always a result of a barrier present
in that person's environment. When an employer refuses to hire a
qualified person because of his diagnosis of bipolar disorder, for
example, the discrimination did not happen "because of" his mood
disorder, but instead it happened because of the attitudinal barrier
that the person making the hiring decision possessed and acted upon.
Similarly, when a person in a wheelchair can't get up a flight of
stairs into a restaurant, or a deaf person can't follow a video
at a reception, these things do not happen because a person uses
a wheelchair or is deaf. Instead, the exclusion occurs because the
restaurant lacks accessibility or because the video is not captioned.
In other words, a barrier in the person's environment typically
plays a causal role in producing disability discrimination.
CONCLUSION
Given the aggressive narrowing by the federal courts of the protected
class, rethinking the definition of disability is critical to advancing
equality and fair treatment, in our schools, workplaces, government
offices, and places of public accommodation. But this effort is
only one of many key components of the disability rights agenda.
With staggeringly low employment rates among people with disabilities,
America must redouble its efforts to advance the needs and interests
of the entire community, from those with non-traditional disabilities,
to those with the most severe disabilities, and everyone in between.
Of particular note are efforts to advance the integration and employment
of persons with significant disabilities, including Social Security
reform, vocational rehabilitation reform, Medicaid and Medicare
reform, private insurance reform, supported employment, wage supports,
and investments in accessible, affordable housing and transportation.
Any effort to re-fashion the ADA to broadly protect all Americans
from disability discrimination, in the tradition of the Civil Rights
Act of 1964, must occur as part of a much larger agenda that will
help to make real the ADA's promise of full participation and integration.
An effective federal nondiscrimination mandate can provide a floor,
or solid foundation, of fairness. Such a floor by itself, however,
is not nearly enough for people with disabilities when so many need
education, transportation, housing, assistive technology, job training,
health care, personal assistance, and other long-term community
supports. By addressing serious problems in how the law has developed
defining the protected class, a solid foundation on which we can
build inclusive policies will be restored.
The National Council on Disability wishes to express its appreciation
to Claudia Center and Andrew J. Imparato for the development of
this policy brief. The authors would like to acknowledge the assistance
of Christine Griffin, Brian East, Kim Borowicz, Ollie Cantos, Dominika
Bednarska, Kenneth Sheppard, Clarice Lim, Arlene Mayerson, and Elizabeth
Kristen with research and reacting to the authors' ideas.
1 National Council on Disability, Equality of
Opportunity: The Making of the Americans with Disabilities Act (1997)
at 12-13 (available at www.ncd.gov,).
2 Id. at 13, n. 13.
3 See Pub. L. No. 93-112, § 7(6), 87 Stat. 355,
360 (1973).
4 See Pub. L. No. 93-516, 88 Stat. 1617, 1619
(1974).
5 See S. REP. NO. 93-1297, at 38 (1974), reprinted
in 1974 U.S.C.C.A.N. 6373, 6389; H. REP. NO. 101-485, pt. 2,
at 52-53 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 334-335.
6 Equality of Opportunity at 12.
7 For a description of the process leading to the regulations,
seeEquality of Opportunity at 16-21.
8 45 C.F.R. § 84.3(j)(2)(i).
9 42 Fed. Reg. 22685 (1977), reprinted in 45 C.F.R.
Pt. 84, App. A, p. 334 (1998).
10 Id. at 352.
11 National Council on the Handicapped, Toward Independence
(1986) at 18 (available at www.ncd.gov).
12 Id. at 19.
13 Jonathan M. Young, "'Same Struggle, Different Difference':
The Americans with Disabilities Act and the Disability Rights Movement,
1964-1990" (Ph.D. diss., University of North Carolina at Chapel
Hill, 2002), p. 191.
14 Id. at 191.
15 Id. at 192.
16 National Council on the Handicapped, On the Threshold
of Independence (1988), Appendix (available at www.ncd.gov).
17 See Equality of Opportunity at 63-67.
18 Id. at 95-99.
19 Id. at 100.
20 Id. at 103.
21 Bentivegna v. United States Dep't of Labor,
694 F.2d 619, 621 (9th Cir. 1982); Davis v. Meese, 692 F.
Supp. 505, 513, 517 (E.D. Pa. 1988), aff'd, 865 F.2d 592
(3d Cir. 1989) (table) ("Some insulin-dependent diabetics never
experience a severe hypoglycemic occurrence, and are able to control
their blood sugar levels at nearly normal levels throughout their
working careers. . . . [A]n insulin dependent diabetic is clearly
a 'handicapped person.'").
22 Reynolds v. Brock, 815 F.2d 571, 573-74 (9th
Cir. 1987) (plaintiff with infrequent seizures could be disabled
because persons with epilepsy face policies restricting their employment
opportunities); Mantolete v. Bolger, 767 F.2d 1416, 1420,
1424 (9th Cir. 1985) (person with condition under "complete control"
was disabled and potentially entitled to accommodation); Akers
v. Bolton, 531 F. Supp. 300, 315 (D. Kan. 1981) (Section 504
"doubtless encompasses the class of epileptic school children");
Drennon v. Philadelphia General Hosp., 428 F. Supp. 809,
815 (E.D. Pa. 1977) ("That persons with epilepsy are considered
handicapped is too self-evident to be contested.").
23 Doe v. Garrett, 903 F.2d 1455, 1457, 1459
(11th Cir. 1990) cert. denied, 484 U.S. 849 (1987) ("[I]t
is well established that infection with AIDS constitutes a handicap.");
Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524,
1527-28, 1536 (M.D. Fla. 1987); Thomas v. Atascadero Unified
School Dist., 662 F. Supp. 376, 383 (C.D. Cal. 1987); see
also Robertson v. Granite City Com. Unit School Dist. 9, 684
F.Supp. 1002, 1007 (S.D. Ill. 1988).
24 See, e.g., Tinch v. Walters, 765 F.2d 599,
603 (6th Cir. 1985); Sullivan v. City of Pittsburgh, Pa.,
811 F.2d 171, 182 (3d Cir. 1987), cert. denied, 484 U.S.
849 (1987); Wallace v. Veterans Administration, 683 F.Supp.
758, 761 (D. Kan. 1988); Anderson v. University of Wisconsin,
665 F.Supp. 1372, 1391 (W.D. Wis. 1987), aff'd, 841 F.2d
737, 740 (7th Cir. 1988); Traynor v. Walters, 606 F.Supp.
391, 399-400 (S.D.N.Y. 1985) (alcoholic who had been sober 10 years
was "handicapped individual"); Davis v. Bucher, 451 F.Supp.
791, 796 (E.D. Pa. 1978); Burka v. New York City Transit Authority,
680 F.Supp. 590, 600 (S.D.N.Y. 1988). Indeed, the issue was considered
so well settled that this Court simply assumed that recovered alcoholics
are disabled in Traynor v. Turnage. 485 U.S. 535, 548-49
(1988).
25 See also Doe v. New York University, 666 F.2d
761, 775 (2d Cir. 1981) ("definition is not to be construed in a
niggardly fashion"); Gilbert v. Frank, 949 F.2d 637, 641
(2d Cir. 1991) ("The Act and the regulations promulgated under it
are to be interpreted broadly.").
26 See, e.g., Thornhill v. Marsh, 866 F.2d 1182
(9th Cir. 1989) (applicant denied job due to abnormal back X-ray
could pursue claim - "Thornhill's 'handicap' . . . is the congenital
deformity of his spine which the Corps perceived as imposing a disqualifying
limitation on his ability to lift weight."); Reynolds v. Brock,
815 F.2d 571, 573-74 (9th Cir. 1987) (plaintiff with infrequent
seizures was disabled due to policies restricting the opportunities
of people with epilepsy); E.E. Black, Ltd. v. Marshall, 497
F. Supp. 1088, 1102-1103 (D. Haw. 1980) (job applicant rejected
due to back X-ray showing congenital back anomaly believed by employer
to signify increased risk of future injury was regarded as handicapped);
Doe v. Centinela Hosp., 1988 U.S. Dist. LEXIS 8401 (C.D.
Cal. 1988) (asymptomatic HIV-positive person excluded on that basis
from a residential drug rehabilitation program was regarded as handicapped
as a matter of law); see also Taylor v. U.S.P.S., 946 F.2d
1214, 1215, 1218 (6th Cir. 1991) (applicant who was medically disqualified
because back and knee problems purportedly placed him at risk for
future injury was regarded as handicapped as a matter of law); Harris
v. Thigpen, 941 F.2d 1495, 1523-24 (11th Cir. 1991) (HIV-positive
prisoners were "regarded as" handicapped regardless of their actual
condition where prison excluded them from programs); United States
v. Southern Management Corp., 955 F.2d 914, 919 (4th Cir. 1992)
(recovered drug addicts excluded from an apartment complex were
"handicapped" because they were denied "benefits integral to a person's
ability to function generally in society" on the basis of their
status as recovered addicts) ("In Arline, the Supreme Court
rejected the argument that only an impairment that results in diminished
physical or mental capabilities could be considered a handicap under
§ 504 of the Rehabilitation Act. The Court reasoned that the negative
reactions of others to the impairment could limit a person's ability
to work regardless of the absence of an actual limitation on that
person's mental or physical capabilities.").
27 Congress expressly endorsed the reasoning of Arline
in all three major committee reports. H.R. Rep. No. 485(II), 101st
Cong., 2d Sess. (1990) at 53; H.R. Rep. No. 485(III), 101st Cong.,
2d Sess. (1990) at 30; S. Rep. No. 116, 101st Cong., 1st Sess. (1989)
at 23. "A person who is . . . discriminated against [ ] because
of a covered entity's negative attitude toward that person's impairment
is treated as having a disability." H.R. Rep. No. 485(II) at 53;
S. Rep. No. 116 at 24. Accordingly, the committee reports explained,
an individual rejected from a particular job because an X-ray indicates
abnormalities is "regarded as" disabled even if the person has no
outward symptoms. H.R. Rep. No. 485 (III) at 31; S. Rep. No. 116
at 24.
28 See also Bonnie Poitras Tucker, The Supreme
Court's Definition of Disability Under the ADA: A Return to the
Dark Ages, 52 Alabama Law Rev. 321 (Fall 2000); Chai Feldblum,
Definition of Disability Under Federal Anti-Discrimination Law:
What Happened? Why? And What Can We Do About It?, 21 Berkeley
J. Employ. & Lab. Law 91 (2000); Colker, R., The Americans with
Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L.
L.Rev. 99 (1999); Robert L. Burgdorf, Jr., "Substantially Limited"
Protection from Disability Discrimination: The Special Treatment
Model and Misconstructions of the Definition of Disability,
42 Vill. L. Rev. 409 (1997).
29 See, e.g., Kellogg v. Union Pac. R.R. Co.,
233 F.3d 1083 (8th Cir. 2000) (railroad manager with major depression
and anxiety not substantially limited); Schneiker v. Fortis Insurance
Company, 2000 U.S. App. LEXIS 90 (7th Cir. 2000) (benefits analyst
with depression and alcoholism requiring hospitalizations, medication,
outpatient care, and AA meetings not substantially limited); Spades
v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999) (police
officer with depression who attempted suicide not substantially
limited); Scherer v. G.E. Capital Corp., 59 F. Supp. 2d 1132
(D. Kan. 1999) (fraud investigator with bipolar disorder and obsessive
compulsive disorder not disabled).
30 See, e.g., E.E.O.C. v. Sara Lee Corp., 237
F.3d 349 (4th Cir. 2001) (machine operator with epilepsy causing
seizures, bedwetting on one occasion, bruises, and periods of "zoning
out" was not substantially limited); Bowen v. Income Producing
Mgmt. of Okla., 202 F.3d 1282 (10th Cir. 2000) (fast food manager
who as a result of brain surgery suffered short-term memory loss,
inability to concentrate, and difficulty doing simple math not substantially
limited); Sorensen v. University of Utah, 194 F. 3d 1084
(10th Cir. 1999) (nurse with MS, forcibly reassigned immediately
after five-day hospitalization, not disabled); Weber v. Idex
Corp., 186 F.3d 907 (8th Cir. 1999) (sales manager with heart
disease, heart attack, hypertension, and multiple hospitalizations
not disabled); Lorubbio v. Ohio Dep't of Trans., 181 F.3d
102 (6th Cir. 1999) (transportation worker with spinal injury not
substantially limited); Ivy v. Jones, 192 F.3d 514 (5th Cir.
1999) (hearing impaired clerical worker using hearing aids not substantially
limited); Tone v. U.S.P.S., 68 F. Supp. 2d 147 (N.D. N.Y.
1999) (tractor trailor operator who lost left eye to cancer not
disabled).
31 This flawed analysis is the source of the ADA's "Catch-22"
between "disabled" and "qualified." In Olson v. General Electric
Astrospace, No. 95-5480, 9 N.D.L.R. ¶ 86 (3rd Cir. 1996), the
Third Circuit concluded that a senior technical staffer with depression
requiring a four-month hospital stay was not "disabled" because
he was highly qualified: "[T]he evidence that was apparently offered
to demonstrate [plaintiff's] fitness as an employee ironically establishes
that he was not substantially limited in a major life activity.
Therefore he can not establish that he is disabled, or that he has
a history of being disabled." Similarly, in Sarko v. Penn-Del
Directory Co., 968 F. Supp. 1026 (E.D. Pa. 1997), the district
court rejected the idea that a top performing sales representative
with depression and anxiety could have a disability, stating, "Plaintiff
admits that she was able to work long hours and perform quite successfully
as a salesperson while at Penn-Del." Id.; see also Hatfield v.
Quantum Chemical Corp., 920 F. Supp. 108 (S.D. Tex. 1996) (process
technician returning from leave with diagnosis of recurrent major
depression and post-traumatic stress disorder not disabled: "It
is logically inconsistent for Hatfield to say he is so impaired
that he cannot care for himself, while at the same time saying that
he can go to work and perform his job.").
32 See, e.g., Williams v. Osram-Sylvania, Inc.,
175 F.3d 193 (1st Cir. 1999) (employer did not regard injured worker
as disabled even if its decision was based on stereotypes: "A negative
employment action taken by an employer, even if myth-driven, does
not establish liability under the ADA unless the employer regards
the employee as substantially limited.").
33 See, e.g., Francis v. City of Meriden, 129
F.3d 281, 286 (2d Cir. 1997) (stating that weight is generally not
an impairment); Coleman v. Georgia Power Co., 81 F. Supp.
2d 1365, 1370 (N.D. Ga. 2000) (finding plaintiff's "morbid obesity"
was not a physical impairment); see also Elizabeth Kristen,
Addressing the Problem of Weight Discrimination in Employment,
90 Calif. L. Rev. 57, 84 (2002). Other cases have also found no
impairment when psychological screening tests found plaintiffs unfit
for jobs in law enforcement. See. e.g., Santiago v. City of Vineland,
107 F. Supp. 2d 512, (D. N.J. 2000) (finding no impairment when
the plaintiff's "personality traits and emotional health" were at
issue); Daley v. Koch, 892 F. 2d 212, 215 (2d Cir. 1989)
(same with regard to "poor judgment, irresponsible behavior and
poor impulse control); Greenberg v. New York State, 919 F.
Supp. 637, 643 (E.D.N.Y. 1996) (stating that the psychological report
did not demonstrate an impairment).
34 See, e.g., Soileau v. Guilford of Maine, Inc.,
105 F.3d 12, 15 (1st Cir. 1997) (finding that interacting with others
was not a major life activity); Mahon v. Crowell, 295 F.3d
585, 590, 591-92 (6th Cir. 2002) (stating that working was "problematic"
as a major life activity).
35 See, e.g., Toyota v. Williams, 534 U.S. 184,
198 (2002) (holding that to be "substantially limited in performing
manual tasks, an individual must have an impairment that prevents
or severely restricts the individual from doing activities that
are of central importance to most people's daily lives"); Wooten
v. Farmland Foods, 58 F.3d 382, 385-86 (8th Cir. 1995) (finding
plaintiff with carpal tunnel syndrome and a lifting restriction
was not regarded as substantially limited in the major life activity
of working); Pollard v. High's of Balt., Inc., 281 F.3d 462,
471 (4th Cir. 2002) (finding that an employee with a back injury
was not substantially limited in working when she immediately obtained
a new job); Mahon v. Crowell, 295 F.3d 585, 590, 591-92 (6th
Cir. 2002) (holding that an employee with a back injury was not
substantially limited in working when he suffered a 47% loss of
access to the job market).
36 See, e.g., American National Insurance v. FEHC,
32 Cal.3d 603, 186 Cal.Rptr. 345 (1982) (high blood pressure thought
to pose increased risk of future disability covered); Johnson
v. Civil Service Commission, 153 Cal.App.3d 585 (1984) (spinal
anomaly protected by state law); Sanders v. City and County of
San Francisco, 6 Cal.App.4th 626 (1992) (chemical dependency
covered); County of Fresno v. FEHC, 226 Cal.App.3d 1541 (1991)
(workers with respiratory disorders causing hypersensitivity to
tobacco smoke were "physically handicapped" under the FEHA); Raytheon
v. FEHC, 212 Cal.App.3d 1242 (1989) (person with AIDS is physically
handicapped); Sterling Transit Company v. Fair Employment Practice
Commission, 121 Cal.App.3d 791 (1981) (lower back congenital
problem of scoliosis was protected); see also State Personnel
Bd. v. Fair Employ. & Hous. Comm., 39 Cal.3d 422 (1985) (three
traffic officer cadets permitted to pursue claims challenging disqualification
from employment pursuant to "medical standards" on basis of colorblindness,
osteoarthritis, and prior intestinal bypass surgery); McPhail
v. Court of Appeals, 39 Cal.3d 454 (1985) (rejected applicant
permitted to pursue claim challenging disqualification from California
Highway Patrol based on anomaly found on back X-ray).
37 Code of Ala. 24-8-3(6); Ak. Stat. § 18.80.300(12)
(also includes "condition that may require prosthesis, special equipment
for mobility, or service animal"); Ariz. Rev. Stat. 41-1461(4);
Ark. Code Ann. 16-123-102(3) (first prong only); Colo. Rev. Stat.
§ 24-34-301(2.5); 19 Del. Code § 722(4) ("substantial limitation"
must be related to employability); D.C. Code § 2-1401.02(5a); Fla.
Stat. 760.22(7)(a) (no definition in employment provisions, definition
found in housing provisions, also includes "developmental disability");
Ga. Code Ann. § 34-6A-2(3) ("substantial limitation" must be related
to employability, no regarded as prong); Haw. Rev. Stat. § 489-2;
Idaho Code § 67-5902(15) (disability must be clinically "demonstrable,"
"substantial limitation" is "to person," rather than of a major
life activity); Burns Ind. Code Ann. § 22-9-5-6(1); Iowa Code §
216.2(5) ("substantial disability"), Iowa Admin. Code rs. 161--8.26(1)-(3)
("substantial disability" defined using ADA definition); Kan. Stat.
Ann. § 44-1002(j); Ky. Rev. Stat. § 12.450(1); La. Rev. Stat. §
23:322(3); 5 Me. Rev. Stat. § 4553(7) (includes "substantial disability"
as determined by physician, psychiatrist, or psychologist), Code
of Me. Rules § 94-348-003.01(C) (following ADA definition); Md.
Ann. Code Art. 49B, § 15(g) ("any physical disability" and "any
mental impairment or deficiency"), Code of Md. Reg. (COMAR) § 14.03.02.03
(following ADA definition, and condition must be "demonstrable by
medically accepted clinical or laboratory diagnostic techniques");
Mass. Ann. Laws Ch. 151B, 1(17); Mich. C. L. S. § 37.1103(d) (instead
of impairment, definition requires "determinable physical or mental
characteristic" that substantially limits); Minn. Stat. § 256.481;
Code of Miss. Rules 46-000-001 (State Personnel Board Policy and
Procedures Manual), § 7.30 (Equal Employment Opportunity) (public
employment only); Mo. Rev. Stat. § 213.010(4); Mont. Code Ann. §
49-2-101(19); Rev. Stat. Neb. Ann. § 48-1102(9); Nev. Rev. Stat.
Ann. § 613.310(1); N.H. Rev. Stat. Ann. § 354-A:2(IV); N.M. Stat.
Ann. § 28-1-2(M); N.C. Gen. Stat. § 168A-3(7a); N.D. Cent. Code
§ 14-02.4-02(4); Ohio Rev. Code Ann. § 4112.01(13); 25 Okla. Stat.
§ 1451(6); Or. Rev. Stat. § 174.107(1); 43 Penn. Stat. 954 (p. 1);
S.C. Code Ann. § 1-13-30(N); S.D. Cod. Laws § 20-13-1(4); Tenn.
Code Ann. § 4-21-102(9); Tex. Lab. Code § 21.002(6); Utah Code Ann.
§ 34A-5-102(5) ("disability as defined and covered by the Americans
with Disabilities Act"); Vt. Stat. Ann. § 495d(5) ("substantial
limitation" must be related to employability); Va. Code Ann. § 51.5-3
(no regarded as prong); W. Va. Code § 5-11-3(m); Wyo. Stat. § 27-9-105
(no definition), Rules of Practice and Procedure Before the Wyoming
Fair Employment Commission Concerning Handicap Discrimination Complaints
Filed Pursuant to the Fair Employment Practices Act of 1965 as Amended,
Ch. X, § 3 (adopting federal definition); see also Wis. Stat. §
111.32 (for employment discrimination law, disability is mental
or physical impairment "which makes achievement unusually difficult
or limits the capacity," or record or perception), Wis. Stat. §
106.50(g) (for housing discrimination law, federal law definition);
cf. 75 Ill. L.C.S. 5/1-103 (no requirement of substantial limitation),
but see 56 Ill. Admin. Code § 2500.20(b) (definition excludes
"conditions which are transitory and insubstantial," and "conditions
which are not significantly debilitating or disfiguring").
38 Colmenares v. Braemar Country Club, 2001 Cal.
LEXIS 5483; 111 Cal. Rptr. 2d 336 (Cal. Supreme Aug. 22, 2001);
Swenson v. County of Los Angeles, 75 Cal. App. 4th 889 (1999),
rev. dismissed, 2001 Cal. LEXIS 428 (Jan. 24, 2001) (broader definition
of "mental disability" under FEHA is consistent with legislative
intent to provide broader protection than ADA); Pensinger v.
Bowsmith, 60 Cal. App. 4th 709, 721-22 (1998) ("there is no
basis for us to impose a requirement that a mental disability limit
a major life activity, when the Legislature saw fit not to do so.
Undoubtedly, the Legislature was aware of the definitions of mental
and physical disability included in the ADA because it referred
to it repeatedly in enacting the amendment to the FEHA. . . . Undoubtedly,
the Legislature also knew how to amend the FEHA to include a requirement
that a mental disability effect must limit a major life activity,
if it wished that result."); Jenson v. Wells Fargo Bank,
85 Cal. App. 4th 245, 257 (2000) ("the plain meaning of the language
used in the FEHA's definition of mental disability . . . require[s]
us to follow the Legislature's language and give a broader meaning
to mental disability"); Muller v. Automobile Club of So. California,
61 Cal. App. 4th 431, 71 Cal. Rptr. 2d 573 (1998) (stating that
"the Legislature . intended, in accordance with the ADA, to uniformly
define 'mental disability' as a mental impairment that substantially
limits a major life activity) Colmenares v. Braemar Country Club,
Inc., 89 Cal. App. 4th 778 (2001); Wittkopf v. County of
Los Angeles, 90 Cal. App. 4th 1205 (2001).
39 Also in 2000, the Rhode Island legislature amended
the definition of disability to exclude consideration of mitigating
measures: "Disability" means any physical or mental impairment which
substantially limits one or more major life activities, has a record
of an impairment, or is regarded as having an impairment . . .;
provided, however, that whether a person has a disability shall
be determined without regard to the availability or use of mitigating
measures, such as reasonable accommodations, prosthetic devices,
medications, or auxiliary aids." P.L. 2000, ch. 499, § 2; P.L. 2000,
ch. 507, § 2 (amending R.I. Gen. Laws § 42-87-1).
40 San Francisco, California's ordinance prohibiting
weight and height discrimination provides another example of a law
which attempts to focus on the merits of a particular discrimination
claim rather than establishing "disability." See generally City
and County of San Francisco Human Rights Commission, Compliance
Guidelines to Prohibit Weight and Height Discrimination, July
26, 2001, available at http://www.sfgov.org/sfhumanrights/guidelines_final.htm.
41 To meet the physical standard, the plaintiff must
show "that he or she is (1) suffering from physical disability,
infirmity, malformation or disfigurement (2) which is caused by
bodily injury, birth defect or illness including epilepsy." Viscik,
173 N.J. at 16. To meet the non-physical standard, the plaintiff
must show that he or she is (1) suffering from any mental, psychological,
physiological or neurological condition that either (a) prevents
the normal exercise of any bodily or mental functions or (b) is
demonstrable, medically or psychologically, by accepted clinical
or laboratory diagnostic techniques. Id. (citing Clowes
v. Terminex Int'l, Inc., 109 N.J. 575 (1988)).
42 Andersen v. Exxon Co., 89 N.J. at 494-95 (spinal
and lumbar disc ailments covered); Viscik, 173 N.J. at 17 (woman
with morbid obesity has physical handicap); Harris v. Middlesex
County College, 2002 N.J. Super. LEXIS 339 (2002) ("We agree
that a mastectomy qualifies as an "amputation," but the LAD's protections
are broader and may include a person with breast cancer even if
she is treated with the less radical alternatives available to breast
cancer patients. . . . The fact that she suffered no recurrence
and that she had minimal limitations on her physical capabilities
does not disqualify her from protection under the LAD."); Tynan
v. Viscinage 13 of the Superior Court, 798 A.2d 648, 2002 N.J.
Super. LEXIS 258 (2002) (post-traumatic stress disorder, depression,
and anxiety panic attacks are psychological disorders that qualify
as handicaps under the LAD); Enriquez v. West Jersey Health Systems,
342 N.J. Super. 501, 519, 777 A.2d 365 (App. Div. 2001), certif.
denied, 170 N.J. 211 (2001) (gender dysphoria qualifies as a
"handicap"); Blume v. Denville Township Board Of Education,
334 N.J. Super. 13, 756 A.2d 1019 (2000) (plaintiff "handicapped"
as the result of the two mastectomies which she underwent as treatment
for cancer); Gimello v. Agency Rent-A-Car-Systems, Inc.,
250 N.J. Super. 338, 362 (App. Div. 1991) (obese plaintiff satisfied
definition); Rogers v. Campbell Foundry Co., 185 N.J.Super.
109, 447 A.2d 589 (App.Div.), certif. Denied, 91 N.J. 529,
453 A.2d 852 (1982) (rejected applicant with nondisabling hilar
shadow covered); Panettieri v. C.V. Hill Refrigeration, 159
N.J.Super. 472, 388 A.2d 630 (App.Div.1978) (heart attack).
43 See, e.g., Clowes v. Terminix Intern, Inc.,
109 N.J. 575, 538 A.2d 794 (1988) (plaintiff failed to present adequate
medical proof of alcoholism: " Conspicuously absent from the record
is any testimony from a treating or examining physician that Clowes
had been diagnosed as an alcoholic. . . . Clowes's admission that
he was an alcoholic, along with his testimony regarding his drinking
habits, is insufficient to prove that he suffered from this disease.");
Enrique, 342 N.J. Super. at 522 (plaintiff protected if she
can demonstrate she was diagnosed with gender dysphoria using accepted
techniques); Heitzman v. Monmouth County, 321 N.J. Super.
133, 728 A.2d 297 (1999) ("Plaintiff failed to present any medical
evidence that hypersensitivity to second-hand smoke is a recognized
medical condition or that he suffers from such a condition.").
44 New York City's antidiscrimination ordinance - Article
15 of the Human Rights Law - includes a similar definition of disability:
"The term 'disability' means (a) a physical, mental or medical impairment
resulting from anatomical, physiological or neurological conditions
which prevents the exercise of a normal bodily function or is demonstrable
by medically accepted clinical or laboratory diagnostic techniques
or (b) a record of such an impairment, or (c) a condition regarded
by others as such an impairment, provided, however, that in all
provisions of this article dealing with employment, the term shall
be limited to disabilities which do not prevent the complainant
from performing in a reasonable manner the activities involved in
the job or occupation sought or held." Art. 15, § 292(21).
45 A recent decision by the highest court ruled that
experienced flight attendants excluded from employment pursuant
to Delta's weight requirements could not bring claims under a perceived
disability theory because they did not have (and, presumably, were
not perceived to have) a medical impairment. Delta Air Lines
v. New York State Div. of Human Rights, 91 N.Y.2d 65, 689 N.E.2d
898 (1997) ("Appellants failed to establish that they are medically
impaired members of a protected class defined under the New York
Human Rights Law. Nothing in the record supports the proposition
that appellants suffer from a legally defined or cognizable "medical
impairment" which restricts their "normal bodily function. . . .
Appellants did not proffer evidence or make a record establishing
that they are medically incapable of meeting Delta's weight requirements
due to some cognizable medical condition."). The Court in Delta
did not specifically discuss the standards for a "perceived" disability.
46 Stone v. St. Joseph's Hospital of Parkersburg,
208 W.Va. 91, 538 S.E.2d 389 (2000). As that court noted, "[t]he
'exclusion-from-only-one-job' rationale . . . . has been relied
upon in some federal cases to deny threshold protected status as
a matter of law to a range of persons with fairly substantial impairments."
Id. at 103, & n.18 (citing examples collected by Robert L.
Burgdorf Jr. in 42 Vill.L.Rev. 409 (1997), supra note ). In rejecting
this line of federal case law, the court noted that the West Virginia
Human Rights Act "represents an independent approach to the law
of disability discrimination that is not mechanically tied to federal
disability discrimination jurisprudence." Id. at 106. "[I]t
should be remembered that if a person is prohibited from establishing
threshold "protected status" as a person with a disability within
the meaning of the law, an employer may inflect any sort of (otherwise
legal) discriminatory conduct or acts on the person - no matter
how unfair, arbitrary, stereotyped, bigoted, or unrelated to business
necessity that those acts or conditions may be - and the person
will have no standing to complain of or remedy the discrimination.
And it should also be remembered that establishing the "protected
person" status . . . in no way guarantees that a claim of disability
discrimination will succeed. All other elements of a claim . . .
must be shown before a person is entitled to any relief." Id.
at 104.
47 Disabled Persons Act of 1992, Zimbabwe, available
at www.dredf.org/symposium/lawindex/html.
48 Ley para la integracion de las personas incapacidadas
(Aug. 15, 1993), Venezuela, available in an English translation
at www.dredf.org/symposium/lawindex.html.
49 Equalization Opportunity Law (Act No. XXVI of 1998)
Hungary, available in an English translation at www.dredf.org/symposium/html.
50 See ICIDH-2: International Classification of Functioning
and Disability, available at www.deakin.edu.au/tedca/ncet/information/resources/ididh.html.
51 Id.
52 Indeed, a serious discussion about what definitional
provisions should be employed to further disability civil rights
has not taken place within the disability community since the late
1980s. |