Legal Updates

May 2004

Avoiding Liability for Disability Discrimination: Who is Disabled?

The Americans with Disabilities Act (ADA) and Michigan’s Persons with Disabilities Civil Rights Act (PDCRA) both protect individuals with disabilities from employment discrimination and require an employer to reasonably accommodate an employee’s disabilities. This primer topic will focus on the ADA’s definition of disability.

Fact Specific Determinations
Unlike race, sex, or other discrimination laws, disability discrimination laws present an extra layer of complexity as compared to those discrimination laws based on race or gender. Disability discrimination laws protect not only employees who have disabilities, but also individuals who are mistakenly believed to have disabilities and individuals who, although they may have no current disability, have a record of being disabled in the past. Moreover, the determination of whether a particular individual is a protected individual with a disability requires a fact specific inquiry into each individual’s specific condition and job.

What Employees are Covered?
Not all employees with medical conditions are protected employees under the ADA. The ADA protects “qualified individuals with a disability.” A disability is defined by the ADA as a substantial limitation of a major life activity. Major life activities include performing manual tasks, seeing, hearing, walking, speaking, breathing, learning, taking care of oneself and working. To be substantially limited in the activity of working, an employee must be substantially limited from performing a broad range of jobs. A disability under the ADA includes both physical and mental impairments. A qualified individual with a disability is someone who can perform the essential functions of the job in question, with or without a reasonable accommodation.

Temporary Conditions
Temporary, non-chronic conditions are not a "disability" under the ADA. These are conditions of short duration, that have little or no permanent impact. For example, a broken leg that heals completely is probably a temporary non-chronic condition. If there are complications that permanently impair the individual from walking, however, it may qualify as a disability.

Alcohol and Drug Use
Although current alcohol and drug use are not disabilities, recovering drug addicts and alcoholics may be considered qualified individuals with disabilities.

Conditions that are not Disabilities
The following conditions are examples of what is not considered to be a disability under the current state of the law: Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders, compulsive gambling, kelptomania, and pyromania.

Regarded As Claims
Even if an individual is not disabled, he or she may have a claim under the ADA if the individual is treated differently than similarly situated people based on the employer’s mistaken belief that he or she has a disability.

Summary
Determining whether an individual is disabled and therefore entitled to the protection of the ADA or the PDCRA can be a difficult determination. Employers should be careful to make an individualized assessment of each person’s condition as it relates to the person's particular job duties and requests for accommodation, if any. If you have questions about who is a covered employee under the ADA or the PDCRA, or what steps an employer must take in accommodating an individual with a disability, you should consult with an attorney that is experienced in ADA and PDCRA law.