Clarifying a disability under ADA.

Lawsuits filed against employers under the relatively new Americans With Disabilities Act (ADA) have been increasing. Guidelines have been issued by the Equal Employment Opportunity Commission (EEOC) to help employers and employees better understand their rights and responsibilities when determining

whether an individual has a disability as defined by the ADA ("Compliance Manual Section 902: Definition of the Term 'Disability"'). The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment or (3) is regarded as having such an impairment.

The EEOC's guidance distinguishes a lack of education from learning disabilities, which are impairments. The guidance also notes that while personality traits are not impairments, some traits, such as a quick temper, may result from an impairment, such as bipolar disorder or post-traumatic stress disorder. The guidance observes that "the legislative history to the ADA expressly provides that infection with the human immunodeficiency virus (HIV) is an impairment under the Act. Thus, for the purposes of the ADA, an individual with HIV infection has an impairment."

The "voluntary" aspect of a condition is irrelevant when determining whether it constitutes an impairment, EEOC says. For example, an individual who develops lung cancer as a result of smoking has an impairment, even though one could argue that the voluntary act of smoking caused the impairment. Also, the voluntary use of a prosthetic device or other mitigating measure to correct or lessen the effects of a condition has no bearing on whether that condition is an impairment.

Not everything that restricts a person's major life activities is an impairment, the guidance observes. For example, although financial problems or other economic factors may restrict a person's major life activities, they are not impairments under the ADA. The EEOC addresses the controversial issue of whether obesity is an impairment. It notes that, while a "mildly" overweight individual does not have an impairment, an individual with severe obesity (which has been defined as body weight more than 100 percent over the norm) would have an impairment. A person with obesity might have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder, that is an impairment.

Conditions that last for only a few days or weeks, such as common colds, influenza and most broken bones and sprains, and have no permanent or long-term effects on an individual's health are not ADA disabilities, according to the guidance. The guidance notes that the necessity of surgery alone does not raise a short-term condition to the level of a disability. For example, an employee who requires exploratory surgery to disclose a temporary illness, but who is expected to recover completely in six to eight weeks, does not have an impairment that substantially limits a major life activity. Similarly, an attack of appendicitis requiring an appendectomy would not constitute a disability. However, an impairment does not have to be permanent to be a disability. For example, a person who has been temporarily blinded or paralyzed but is expected to recover eventually is an individual with a disability.

Vulgar Comments

A secretary complained to her employer about her supervisor's behavior, mentioning nine occasions over a seven-month period in which he made remarks she considered to be sexual harassment. She said that he grunted approval of her leather skirt, called her a "pretty girl," said that his office was hot after she came in, and remarked that he was lonely in his hotel room while looking at his hand, which she understood to suggest masturbation. After the supervisor was placed on probation and his salary increase was held up for several months, he stopped the behavior. However, the secretary sued the company for sexual harassment under the Civil Rights Act and was awarded $25,000 in damages by a jury. The company appealed.

The Seventh Circuit Court of Appeals overturned the jury's award. It pointed out that the supervisor never touched or assaulted the secretary, never asked her to have sex with him, made no threats toward her, never exposed himself or showed her dirty pictures, and never "said anything to her that could not be repeated on prime-time TV." The court said that a handful of comments spread over months was unlikely to have the same emotional impact as a concentrated or incessant barrage. It acknowledged that drawing the line between vulgarity and harassment is not always easy, but, even if the supervisor's remarks constituted harassment, the company was not liable because it took prompt and effective action after the secretary complained. (Baskerville vs. Culligan International Co., CA-7, No. 94-2837)

Unreasonable Accommodation

Management informed an employee with multiple sclerosis that his job was being eliminated due to a work force reduction. It tried to reassign him to other jobs, but he turned them down because of medical restrictions on his physical activity. Management also tried to find him a job in other plants but couldn't find any he was able to do. The employee sued the company under the Americans With Disability Act (ADA). He claimed that the company had a duty under the ADA to transfer him to another plant in order to satisfy the reasonable accommodation provisions of the Act.

A federal district court dismissed the employee's suit. It said that a transfer was not warranted as a means of reasonable accommodation because the employee presented no evidence that the company regularly transferred employees between its facilities and the company pointed out that it had no such transfer policy. The court said that the ADA is not an "affirmative action" statute and is not intended to grant special preferences to disabled employees. It concluded that requiring an employer to adopt a transfer policy specifically to accommodate a disabled employee "would impose a great burden on many employers which is not contemplated by the statute." (Emrick vs. Libbey-Owens-Ford Co., 4 AD Cases 1)

RELATED ARTICLE: In A Nutshell

(1) To know whether a person is protected by the ADA can be complicated.

(2) It is first necessary to understand the Act's specific definition of "disability."

(3) To assist in this understanding, the EEOC has issued a guidance.