Redefining 'disability': ADA amendments expand the universe of people businesses will need to accommodate.

• Author: Olsen, Theodore A.
• Position: GUEST [column] - Americans with Disabilities Act

Long ago, I was diagnosed with epilepsy. My seizures were infrequent, brief and mild but disruptive. Thankfully, they have become fully controlled with the help of neurologists and medication. My treated epilepsy didn't keep me from graduating law school with highest honors, representing employers for more than 30 years or running marathons.

But under the new amendments to the Americans with Disabilities Act, I'm "disabled." Because my epilepsy is a "disability," if I were an employee, I could claim the protections of the amended ADA. These are protections that I--and others with controlled health conditions that do not adversely affect our day-to-day activities--don't need.

The ADA prohibits employment discrimination against a qualified individual with a physical or mental "disability." This makes sense. Denying employment to a qualified candidate in a wheelchair because of a disability, for example, should be prohibited.

The amendments, which took effect Jan. 1, changed the primary definition of a "disability"--"a physical or mental impairment that substantially limits one or more major life activities"--in many ways, including:

* When determining whether an individual's condition is a "disability," a court may not consider available mitigating measures (such as medication or oxygen). The only mitigating measures that now may be considered are eyeglasses and contact lenses.

* An episodic condition (such as epilepsy) or a condition in remission (such as cancer) now is a "disability," if the condition would be a disability if it were active.

* "Major life activity" is no longer limited to real world, day-to-day life functions, like talking, hearing and seeing. Now, "major life activity" includes the operation of major bodily functions, including the immune and circulatory systems and cell growth. Because virtually all conditions interfere with a person's major bodily functions, the mere existence of a condition makes a person "disabled."

There is no logical reason why a physical or mental condition should be assessed in the hypothetical manner required by the amended ADA, There is no empirical evidence that persons with medically controlled conditions, such as back pain and high blood pressure, have endured discrimination and need legal protection against such discrimination.

The discrimination laws are intended to level the playing field for disadvantaged minorities, but the new definition of "disability"--broad enough to include...