American Bar Association Commission on Mental and Physical Disability Law

American Bar Association Commission on Mental and Physical Disability Law

This selection was taken from Mental and Physical Disability Law Digest, Section II.

3.01 Americans with Disabilities Act: Scope of Coverage

[Note: This is a few pages from this section.]

(a) Disability Definition

(i) Three Impairment Prongs; Mitigation

Under the Americans with Disabilities Act (ADA), the definition of disability has three prongs,[1] covering both actual and perceived impairments. The first prong includes persons who have actual impairments that substantially limit one or more major life activities. Under this prong, employees (or job applicants) must first demonstrate that they have a physical or mental impairment. A physical impairment broadly includes “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.”[2]

A mental impairment, in turn, encompasses “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”[3] According to the Equal Employment Opportunity Commission (EEOC), the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) is “relevant” for identifying mental disorders.[4] In fact, the DSM-IV-TR is more than relevant, since it is generally accepted by almost all mental health professionals and the courts as the primary basis for making diagnoses of mental conditions.

One condition that has caused much controversy, particularly recently, is morbid obesity. The EEOC defines it as a body weight that exceeds what is considered normal by more than 100 percent, but the Sixth Circuit ruled that this was only true if the obesity resulted from an established physiological condition.[5]

Working, thinking, walking, and breathing are examples of major life activities.[6] A diagnosis of a mental or physical condition does not, by itself, establish a substantial limitation, even for severe impairments such as paralysis, seizure disorders, cancer, mental retardation, or schizophrenia. Rather, a substantial limitation is measured by objective criteria, such as the impairment’s nature, severity, expected duration, and long-term effects.

The Tenth Circuit differentiated those aspects of the ADA’s disability definition that are for the courts to define by their instructions from those that left as matters of fact for a jury or trier of fact to decide.[7] While courts determine whether a qualifying impairment exists and what constitutes a major life activity, it is up to a jury (or trier of fact) to determine whether an impairment is substantially limiting based on criteria that courts establish.

The U.S. Supreme Court indicated that, in general, what constitutes an impairment of a major life activity may be defined quite broadly. For example, in Bragdon v. Abbott,[8] a 5-4 majority concluded that asymptomatic HIV was an impairment under the ADA, and that its effect on that female plaintiff’s major life activity of reproduction constituted a substantial limitation. This created the misimpression, which was quickly extinguished, that the courts would view the definition of disability broadly, despite the statutory limitations.

2

[1] 42 U.S.C. §12102(2).

[2] 29 C.F.R. §1630.2(h)(1).

[3] Id. at §1630.2(h)(2).

[4] EEOC, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997), 21 Mental & Physical Disability L. Rep. (hereinafter MPDLR) 406, at http://www.eeoc.gov/policy/docs/psych.html.

[5] E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006), 30 MPDLR 925.

[6] See Bartlett v. New York State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d Cir. 2000), 24 MPDLR 980 (reading and working are major life activities); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999), 23 MPDLR 841 (thinking is a major life activity); McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999), 23 MPDLR 843, amended, 201 F.3d 1211 (9th Cir. 2000) (interacting with others “easily falls within the definition of ‘major life activity’”).

[7] Bristol v. Board of County Comm’rs of Clear Creek County, 281 F.3d 1148 (10th Cir. 2002), 26 MPDLR 466, vacated on other grounds, 312 F.3d 1213 (10th Cir. 2002), 27 MPDLR 118.

[8] 524 U.S. 624 (1998), 22 MPDLR 449.