28-b-3 What Is a Disability Under the Ada and Section 504?
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28-B-3. What is a Disability under the ADA and Section 504?
Under both the ADA and Section 504, you have a disability if:
(1) a physical or mental impairment substantially limits one or more of your major life activities,
(2) you have a record of such an impairment, or
(3) you are regarded as having such an impairment.50 If you satisfy any of these tests, you are considered an individual with a disability under the ADA and Section 504. If you currently have a disability, such as an uncorrectable hearing impairment, you would be disabled under the first test. Under the second test, you might be considered disabled if, for example, you once had cancer that substantially limited your ability to care for yourself, but the cancer is now in remission.51 Finally, you may have a claim under the third test if prison officials discriminate against you because they believe you have a mental impairment that substantially limits your ability to learn when, in fact, you do not have a mental impairment, or you have an impairment but it does not substantially limit your ability to learn.52
The definition of "disability" has two parts. First, the disability at issue must be a physical or mental impairment. The meaning of "physical or mental impairment" is explored in Subsection (a) below. Second, the impairment must substantially limit one or more major life activities. The meanings of "substantially limits" and "major life activity" are discussed in Subsection (b).
(a) What is a "Physical or Mental Impairment"?
The ADA implementing regulations (rules spelling out the details of the law), from the U.S. Department of Justice ("DOJ"), define a "physical or mental impairment" to include a wide range of physical and mental conditions. More specifically, the regulations define physical or mental impairment as "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, genitourinary, hemic and lymphatic, skin, and endocrine . . . [or] [a]ny mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."53 The regulations also list specific things that qualify as physical or mental impairments. More specifically, the regulations state that the phrase "physical or mental impairment" includes, but is not limited to, contagious and non-contagious diseases and conditions such as: orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, and diabetes; mental retardation, emotional illness, and specific learning disabilities; HIV (whether symptomatic or asymptomatic) and tuberculosis; drug addiction and alcoholism.54
If you are HIV-positive, you should note that the definition of physical impairment includes asymptomatic HIV (testing positive for HIV, but not showing symptoms).55 For example, if you are asymptomatic HIV-positive and the prison denies you trustee status because you have HIV, you may have Title II and Section 504 claims.56
Drug addiction is also considered an impairment, but not if you are currently addicted. If you have stopped using drugs, and have completed or are participating in a drug rehabilitation program, the prison cannot discriminate against you on the basis of your past drug addiction.57 However, the laws and regulations do not prohibit discrimination based on current illegal use of drugs.58
Other conditions and diseases that courts have found could be physical or mental impairments include: asthma,59 deafness and other hearing impairments,60 quadriplegia,61 paraplegia,62 amputations or artificial limbs,63 certain stomach and digestive problems,64 blindness or other vision impairments,65 degenerative disk condition66 and other disabilities.67 In many of the below cases (dealing with possible impairments), the court either did not decide whether the individual was disabled, or ruled that the plaintiff was not disabled at all. These cases simply give examples of the types of impairments courts have said could qualify as disabilities- as long as the claims were backed up with facts, and the impairment substantially limited the individual in a major life activity. (What it means to be substantially limited in a major life activity is discussed in Subsection (b) below.)
Being gay, lesbian, bisexual, or transgender is not a "physical or mental impairment" under the ADA.68 (For information on special issues for gay, lesbian, bisexual, transgender, and transsexual prisoners, see Chapter 30 of the JLM, "Special Information for Lesbian, Gay, Bisexual, and Transgender Prisoners.") Furthermore, the ADA regulations explicitly exclude certain "conditions"-including "transvestism, transsexualism," "sexual behavior disorders," and "gender identity disorders not resulting from physical impairments"69-from the definition of "physical or mental impairment" or "disability."70 If you file a complaint in federal court alleging that one of these conditions or identities is a disability, the court will almost certainly dismiss your case.71 However, one of these conditions or identities may be considered a disability under state law; you should consult statutes and case law for the state in which you live.
(b) When is an Impairment a Disability?
To be considered disabled under the ADA and Section 504, it is not enough for you to have a physical or mental impairment. The impairment has to substantially limit you in at least one major life activity.72 The decision of whether an impairment substantially limits a major life activity or not is made on a case-by-case basis. In other words, the court will look at how an impairment limits you, and not at how an impairment usually limits a person.73 If you have an impairment that affects different people in different ways, you must show that your particular limitation is substantial in your own case.74
The impairment does not have to be current. If you are discriminated against because you have a record of an impairment, that is still considered discrimination under the ADA.75 A record of an impairment is when you have a history of having an impairment that substantially limits a major life activity, or when you have been misclassified as having an impairment that substantially limits a major life activity.76 In addition, even if you have no history of the impairment, you are disabled under the ADA if you are "regarded as having such an impairment."77 You will be "regarded as having such an impairment" if you are discriminated against because of an actual or perceived disability, whether or not that disability limits or is perceived to limit you in a major life activity. 78
Under the ADA Amendments Act of 2008, Congress has tried to make clear what it means by "substantially limits." The Act says that an impairment can count as a disability even if it (1) only substantially limits you in one major life activity, or (2) is episodic or in remission, if it would substantially limit you in at least one major life activity if it were active.79 Additionally, the ADA Amendments Act of 2008 rejects earlier Supreme Court decisions that said "substantially limits" must be interpreted strictly, as to mean the impairment must "prevent" or even "severely or significantly restrict" an individual. The ADA Amendments Act of 2008 suggested that the standard for "substantially limits" should be broad, the ability to ease the hardships of the impairment shouldn't be considered, and courts should not extensively analyze "substantially limits" in ADA cases.80
When considering whether an impairment substantially limits a major life activity, courts are not allowed to assume that having certain aids, including medication, medical supplies, low-vision devices (other than ordinary eyeglasses or contact lenses), prosthetics, hearing aids, mobility devices, oxygen therapy equipment, assistive technology, and auxiliary aids and services (such as interpreters and readers), makes it such that you are not substantially limited in a major life activity.81 The one exception is that courts will consider the effect of ordinary eyeglasses or contact lenses when considering whether a visual impairment substantially limits a major life activity.82
When you start doing legal research to help you argue that your impairment counts as a disability, you will probably find that most of the cases discussing the term "substantially limits" have been about employment discrimination, which falls under a different ADA section: Title I.83 Courts considering whether an impairment substantially limits a major life activity for a prisoner frequently look to Title I cases and regulations for guidance.84 Right now, the regulations for Title I set forth nine rules to be used in determining whether an impairment substantially limits a major life activity.85 The rules state that86:
(i) The term "substantially limits shall be construed broadly . . . [and is] not meant to be a demanding standard;
(ii) An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as...
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