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Posted: April 01, 2009

Guest column: Redefining ‘disability’

ADA amendments expand the universe of people businesses will need to accommodate

Theodore A. Olsen

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 osteoporosis, diabetes and ulcers – brings almost the entire adult U.S. population into a protected class.  Some plaintiffs’ attorneys argue the ADA amendments are justified because employment decisions should not be based on something as irrelevant as a person’s epilepsy. But courts have recognized that employers have the legal prerogative to make illogical decisions, so long as the decisions are not discriminatory.   

More importantly, the ADA uniquely requires employers to make “reasonable accommodations” for a “disabled” person.  Most discrimination laws – such as those banning sex, race and age discrimination – do not compel an employer also to provide “reasonable accommodation.” These laws require “equal” treatment. The ADA not only requires equal treatment but also favored treatment.

Many requested accommodations approved by courts have stretched the meaning of “reasonable” beyond comprehension. One court recently decided an insurance company failed to reasonably accommodate a bipolar sales employee because its warnings about unsatisfactory sales made him feel “less functional” and a more “supportive” attitude would have helped him.

An accommodation is not required if it imposes an “undue hardship.” This, just like the “reasonableness” of an accommodation, is assessed case-by-case.  Even before the amendments, generous employers that provided reasonable accommodations for the disabled were ordered to give even more – including additional months of time off or additional light duty work. 

Employers will now have to accommodate numerous “disabled” employees, many claiming multiple disabilities. There is no way an employer can give preferred treatment to all its “disabled” workers. For example, two workers with different disabilities may both qualify for a vacant position, yet only one can be placed in the job. The absurdity of the amendments will soon be evident when the new “disabled” elbow aside persons protected by the old ADA. 

An employer can be liable under the amended ADA for a plaintiff’s back pay and benefits, future financial losses, pain and suffering, punitive damages, attorney’s fees and costs. But more importantly, such costly litigation will distract employers from their business.

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Theodore A. Olsen is a member of the Labor & Employment Department at Sherman & Howard LLC in Denver. He can be reached at (303) 299-8212.

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