Who has a disability? The answer matters: to those who consider themselves to have a disability, to advocates for the disability community, and to those who must make reasonable accommodations under the Americans with Disabilities Act and the Minnesota Human Rights Act.
Defining Disability: No Easy Answers
It's
against the law to discriminate against an individual based on that
person’s disability. Of course, a person who files a charge or
a lawsuit claiming to be a victim of such discrimination, must show
that he or she indeed has a disability.
That may not be so easy – even if the disability appears obvious.
A person who uses a wheelchair, a prosthesis, a hearing aid, a service dog, or medication to control seizures, surely has a disability, right?
Maybe. Or maybe not.
The ADA defines an individual with a disability as someone who has "a physical or mental impairment that limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment."
But suppose that impairment can be corrected or mitigated–through glasses for a person with poor vision, or medication for someone with epilepsy? Is that person still disabled? Can he or she sue if fired or refused a job because of the impairment?
In 1999, the Supreme Court decided three major cases that "gave a very narrow definition of disability," explains Laurie Vasichek, a senior trial attorney for the Equal Employment Opportunity Commission (EEOC), who has served as lead counsel on some of the agency’s most significant ADA cases. "We’re now trying to figure out how that definition applies."
In the most famous of the three cases, Sutton vs. United Airlines, twin sisters were denied jobs as commercial airline pilots because they were nearsighted, even though their vision problems could be corrected by wearing glasses. The Supreme Court ruled that since glasses corrected their vision, they were not disabled–and therefore they lacked standing to sue.
The court used the same reasoning in deciding two other cases, one involving a mechanic with high blood pressure who was fired by UPS, and the other involving a truck driver with monocular vision. "All three cases said that you determine whether someone has a disability by looking at them with the mitigating circumstances. So if they take medication and it controls everything, they wouldn’t be considered disabled."
So a person who has epilepsy, or a heart condition, or suffers from depression or perhaps even schizophrenia is not necessarily disabled if their condition is controlled through medication. But what does "controlled’ really mean? And suppose they stop taking their medication, or use it sporadically?
Can a person be legally disabled one day, and not the next?
The courts are continuing to grapple with such issues. "What we’re seeing now is increased attention to the effects of medication," says Vasichek. "The 8th Circuit just within this last week found a person who had epilepsy and was taking medication to still be disabled." The person continued to have seizures and to lose consciousness–"not for a long time, but they were not perfectly controlled."
The Minnesota Human Rights Act (MHRA) has a definition of disability similar to the ADA’s, except that it says that a condition is a disability if it "materially" interferes with a major life activity, instead of the ADA’s requirement that it "substantially " interfere.
"The courts have acknowledged that we have a lower threshold. But when they look at disability, even when they acknowledge that our law reads differently, there is an inclination to rely on federal case law," says Steve Lapinsky, supervisor of the Minnesota Department of Human Rights’ employment disability investigation unit.
He is encouraged that case law has defined people who are HIV positive as having a disability, even if they are symptom free. "But get into other disabilities and what is a disability is pretty narrow as defined by the courts," he observes.
Those whose conditions are "under control" – and are not disabled in that sense–may still have another means to press a discrimination claim. Both the ADA and the MHRA include additional definitions of disability that say a person is disabled for purposes of the law if he has a record of a physical or mental disability that would meet the earlier test, or if he is "regarded as having" such an impairment.
In other words, if a employer fires someone because he thinks the person has a disability, the law may have been violated whether or not the person actually has epilepsy, for example.
"You might have your condition under control, but an employer might still not want you around – they might wonder what if this person blacks out and falls into the printing press – or what if this person has a seizure in front of our customers? So having your condition under control might remove you from the first aspect of the definition, but you could still be discriminated against because of one of the other two."
Of course, proving why an employer or other party accused of discrimination took a particular action is often problematic.
"In many employment discrimination cases, there is a dispute between the parties on every issue when disability is involved," notes Lapinsky. There may be a dispute as to whether the employer was aware of an employee’s medical condition. If he was admittedly aware, the employer might dispute that the condition is a disability, as defined by law. "The employer may even list all of the person’s known impairments or medical conditions, but argue that because they are currently mitigated by medication and/or do not materially interfere with a major life activity, including working, they do not constitute a disability."
As perplexing as the state of disability law may sound, the confusion is not unusual and might not have been unexpected. The ADA is only 10 years old, and it was designed to be applied and interpreted on a case by case basis. Although the state Human Rights Act has prohibited disability discrimination since 1973, few cases have reached the courts under the state law.
"When the ADA was first adopted and became enforceable, there was nothing in the way of guidance as to how it should be interpreted," say Vasichek. "So a lot of what has happened in the last 10 years is an effort to give flesh to what is a fairly complex statute.
"The statute is amazing, in that every time you turn around, there is a new issue arising under it," she adds. An issue as fundamental and far reaching – as simple and yet complicated – as what constitutes a disability.
When will that one be settled?
"There is a lot of work that’s going to have to be done," Vasichek says, "before we are fully confident that we know who is and who isn’t disabled – if we ever get to that point."
|
This material previously appeared in the Fall 2000 issue of the Minnesota Department of Human Rights' newsletter,The Rights Stuff. |
