Not disabled enough: the ADA's "major life activity" definition of disability.

• Author: Friedland, Michelle T.
• Position: Americans with Disabilities Act

INTRODUCTION

The Americans with Disabilities Act(1) ("ADA" or "the Act") states that its primary purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(2) It also articulates the goal of ensuring that individuals with disabilities have "equality of opportunity."(3) Despite these broad pronouncements, a surprising number of people who one might assume would benefit from the ADA are left outside its protections. These exclusions occur because the Act sets up a stringent definition of disability based on substantial limitation "in a major life activit[y]."(4) If an individual cannot prove that she is disabled according the ADA's strict definition of disability, then she cannot receive protection under the Act.

The definition of disability has created many counterintuitive results in employment-related suits brought under the ADA by individuals with physical impairments. Many plaintiffs who seemingly should benefit from the Act's goal of increasing the opportunities of people with disabilities have their suits dismissed because their impairments are not considered limiting enough to qualify as disabilities. For example, in McKay v. Toyota Motor Manufacturing,(5) the plaintiff claimed that she was fired from her assembly line job because she developed carpal tunnel syndrome that kept her from performing her job without accommodation.(6) The Sixth Circuit affirmed the dismissal of the case on summary judgment, finding that the plaintiff's carpal tunnel syndrome did not substantially limit any major life activities and that the plaintiff therefore was ineligible to bring suit under the ADA.(7) Because the court found that the plaintiff was not disabled under the ADA, it never asked whether she was able to perform her former job with or without accommodation, or whether she was discharged because of her carpal tunnel syndrome.(8) Similarly, courts have found that people with diabetes(9) and severe myopia(10) do not qualify as disabled under the Act, rejecting their claims outright.

Because the ADA's stated goals provide somewhat contradictory indications of whom Congress meant the Act to cover, it is not clear whether Congress intended to exclude such plaintiffs. However, these and other surprising ADA decisions suggest that the employment provisions, which constitute Title I of the Act, should be reexamined.

In the employment context, the Act addresses the goal of improving the status of people with disabilities by implementing the "General rule" that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability."(11) Although this sounds like a single rule, the ADA actually uses it to place two distinct requirements on employers. First, as the language of the "General rule" itself suggests, the ADA forbids employers from discriminating against individuals with disabilities on the basis of their disability. Second, by defining forbidden discrimination to include "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability,"(12) the ADA requires employers to actively accommodate individuals' disabilities.

These two requirements are different in many ways and raise a number of distinct legal issues. Yet, because the Act defines the antidiscrimination requirement as encompassing the accommodation requirement, the two requirements are grouped together and are not distinguished for purposes of any of the other provisions of the Act. In particular, in determining to whom they apply, both requirements rely on the same definition of disability. This statutory structure has created many strange results because the single definition of disability is not well-matched to the two distinct components of the Act's approach to employment.

A restructured ADA could avoid many of the primary flaws in the current Act. If the ADA were divided so that there were separate legal provisions dealing with discrimination in employment and with accommodation in employment, each of these provisions could use a definition of disability appropriate to it and consistent with the goals the Act is designed to achieve. The mechanism for paying for required accommodations could also be changed to make it more equitable and to provide better incentives to employers.(13)

1. "DISCRIMINATION," ACCOMMODATION, AND INSURANCE UNDER THE ADA

   Black's Law Dictionary defines discrimination as "a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored."(14) Although the ADA purports to be an anti-discrimination statute, many of its provisions specifically require that employers, landlords, and other public entities treat some disabled people differently from able-bodied people, not equally with them.

   Title I, the section of the ADA dealing with employment, begins by announcing a "General rule" forbidding "discrimination" against individuals with disabilities. It states: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."(15) The ADA further defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."(16) This "discrimination" ban is similar to the ban on discrimination in employment on the basis of race, color, religion, sex, or national origin found in Title VII of the Civil Rights Act of 1964. Title VII forbids employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."(17) Essentially, Title VII requires that employers treat all job applicants and employees the same, regardless of their race, color, religion, sex, or national origin.(18)

   The ADA, in contrast, does not merely require that employers treat disabled employees the same as nondisabled employees. The ADA states that for purposes of the section forbidding discrimination in employment, the term "discriminate" includes:

   (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.(19) According to the text of the ADA, reasonable accommodations may include making existing employment facilities readily accessible to individuals with disabilities,(20) as well as offering "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ... the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."(21) Many of these accommodations may be costly or may require significant effort on the employer's part to incorporate the disabled employee into the workplace.(22) Unless an accommodation would be so expensive as to pose an "undue hardship" on the employer,(23) the statute labels the failure to make such accommodations "discrimination." This use of the term discrimination is misleading, though. The statute is not simply asking employers to disregard irrational prejudice and treat all employees the same regardless of disability; it is asking employers to treat employees with disabilities differently from other employees.

   Thus, despite the ADA's emphasis on "discrimination," the ADA actually controls two different types of employment situations, only one of which involves pure discrimination. In situations involving pure discrimination, an employer is forbidden from taking disability into account when making employment decisions if the disability has no effect on an individual's ability to do the job. For example, if a person in a wheelchair applies for a telemarketing job that he is fully capable of performing without any accommodation, the ADA forbids the employer from giving effect to any prejudice she may have toward people who cannot walk. In such situations, the ADA prevents pure discrimination by forbidding employers from giving effect to irrational animus. In the second type of employment situation, the ADA requires employers to accommodate certain employees whose disabilities do affect their ability to perform the job in question. For instance, if a heating-impaired person applies for a job that involves some telephone use, the ADA may require the employer to provide specialized phone equipment. In such cases, the ADA is not just preventing discrimination; it is requiring affirmative accommodation.(24)

   By pointing out that the second type of situation can be distinguished from the first, I do not mean to downplay the importance of the first. Individuals with disabilities continue to face significant prejudice in society,(25) and it is therefore crucial that the ADA provides protection from pure discrimination.(26) Noting, however, that the Act applies to two types of situations is important to understanding the outcomes of many ADA cases and to thinking about how the Act...