Thursday, June 1, 2017

Is That a Disability?

We recently wrote about the $3.3 million verdict in a disability discrimination case brought by an employee who is allergic to certain scents and chemicals.  For some of our readers, it came as a surprise that a scent allergy is a protected disability that must be accommodated.  Federal and state laws that prohibit disability discrimination and require reasonable accommodation define disability quite broadly, and there are other conditions and impairments that employers may not realize are covered.

The basics.  The ADA, as amended by the ADA Amendments Act of 2008, protects individuals who have a “physical or mental impairment that substantially limits one or more major life activities,” such as seeing, hearing, learning, reading, concentrating, or thinking or a major bodily function such as the neurological, endocrine, or digestive system. The ADA also protects individuals with a record of such an impairment or who are regarded as having such an impairment. “Impairment” isn’t defined in the law, but the EEOC’s regulations define “impairment” in some detail. The EEOC’s interpretive guidance distinguishes between conditions that are impairments and those that are “characteristics,” such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range.  Those characteristics are not covered by the law unless they are the result of a physiological disorder.  The EEOC offers several general resources on disability discrimination that clarify both the nature of covered conditions and the extent of employers’ obligations under the law.

So what’s an ADA-recognized disability or impairment?  There are countless such conditions, but what about:

Obesity? The EEOC has taken the position that morbid obesity—defined as body weight more than 100% over the norm—is a disability under the ADA, and at least one federal district court agreed, holding that “a physiological cause for obesity is required only when an ADA disability-discrimination claimant’s weight is within the normal range.” Some federal appellate courts have reached a different conclusion. The Second, Sixth, and Eighth U.S. Circuit Courts of Appeals have held that obesity—morbid or otherwise—must be the result of a physiological condition to constitute an ADA disability. Last October, the U.S. Supreme Court declined to review the Eighth Circuit’s ruling. Bear in mind that state law may protect against discrimination in employment based on obesity. 

Depression, Anxiety, PTSD, Stress, and similar conditions?  A chronic stress or anxiety disorder that substantially impacts a major life activity is generally considered an ADA-covered disability. According to the EEOC, a mental health condition that substantially limits or could, if left untreated, limit a major life activity qualifies as a disability under the ADA. The Department of Labor Office of Disability Employment Policy offers guidance on reasonable accommodations that could be used for employees with mental health conditions. What if the stress is job-related? Could be an ADA disability.

Chemical Dependency? Alcoholism and drug addiction are disabilities under the ADA, but the two conditions are treated differently. An alcoholic may be viewed as having a disability and may be entitled to an accommodation if he or she can perform the essential functions of the job. An employer can discipline, discharge or deny employment to an alcoholic whose alcohol use adversely affects job performance or conduct. By contrast, an employee who currently uses illegal drugs is not considered to have a protected disability under the ADA if the employer acts based on the employee’s illegal drug use, even if the employee has a drug addiction. A person who does not currently use illegal drugs and who receives treatment for drug addiction or has been successfully rehabilitated may, however, be protected.  A person who does not use drugs and is not addicted to drugs but is erroneously perceived as being an addict is likely protected by the ADA. An employer can prohibit the use of alcohol and drugs in the workplace and prohibit employees from being under the influence of alcohol or drugs at work.

Learning disabilities and related conditions? In general, a learning disability that substantially limits a major life activity will be considered a disability covered by the ADA. For example, dyslexia that substantially limits reading or writing is likely a disability requiring accommodation under the ADA. The Department of Justice has issued regulations addressing reasonable accommodations for individuals with learning disabilities.

Autism? The EEOC has said that individuals who have an autism spectrum disorder or other intellectual disability will generally meet the ADA’s definition of disability because the condition will almost always be found to substantially limit the major life activities of brain function, reading, leaning, and thinking.

Pregnancy? Pregnancy itself is not considered a disability under the ADA, but pregnant women may experience impairments related to pregnancy that are disabilities under the ADA. Conditions such as gestational diabetes, pregnancy-related sciatica, and preeclampsia are likely to be considered disabilities even if such conditions are temporary. The EEOC has a handy fact sheet detailing pregnancy-related protections under the ADA and other federal anti-discrimination laws.

HIV/AIDS? A person with HIV or AIDS has a disability and is protected by the ADA. A person who is regarded as being HIV-positive or having AIDS, but who does not have the condition, is also protected. The ADA also protects individuals who have a known association or relationship with someone who has HIV or AIDS. 

These are only some of the less-well known conditions protected by the ADA.  Before acting on any complaint of disability discrimination or request for accommodation, employers should confirm that the condition or impairment involved is, in fact, protected—and, of course, that the disabled applicant or employee can perform all the essential functions of their job with or without reasonable accommodation.

Published by Judy Langevin and Laura Bartlow