Disability discrimination is one of the most common types of employment discrimination we see in the Cleveland area. Yet determining whether an employee meets the statutory definition of having a “disability” under the Americans with Disabilities Act (the “ADA”) or its Ohio counterpart can be a difficult threshold question.
The term “disability” under the ADA generally means the employee has a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 29 C.F.R. § 1630.2(g)(1). This definition requires consideration of several different things.
First, does the employee have a physical or mental impairment? Typically, this part of the analysis is not difficult. Of course an impairment includes diseases like cancer and multiple sclerosis, but it could also include things like depression, PTSD, or cosmetic disfigurement.
The second and third part of the analysis can be trickier. It must be determined whether the impairment “substantially limits” one or more “major life activities.” Major life activities include tasks such as caring for oneself, seeing, hearing, eating, sleeping, walking, thinking, communicating, and others. The term also applies to proper functioning of the body’s various organs and systems. Impairments are substantially limiting if they cause difficulty performing the major life activity when compared to the general population. These are often factually intensive questions that require considerable analysis.
Until Congress amended the ADA in 2008, courts construed the definition of disability very narrowly, particularly with respect to the phrase “substantially limits.” As a result, many disability discrimination cases were thrown out because the employee could not meet the technical definition as it was then interpreted. With the 2008 amendment, Congress made clear that the definition of disability is to be interpreted broadly in favor of protection for employees. While not every impairment constitutes a disability, the focus in disability discrimination cases has shifted away from whether there is a “disability,” to whether there was discrimination.
Even if the employee does not meet the definition for disability set out above, the ADA and Ohio disability discrimination laws might still offer protection. That is so because it is also illegal to discriminate against employees who are not actually disabled, but instead are “regarded as” disabled. For example, an Ohio employer who fires an employee because of the mistaken belief the employee has a disease such as HIV violates the disability discrimination laws, even if the employee does not have the disease. Similarly, the ADA prohibits employers from firing employees because they have a “record of” a disability, even if the employee does not currently have a disability. An example would be refusing to hire an employee because he or she is in remission from cancer.
As I said at the outset, determining whether an employee has a “disability” under the ADA or Ohio law can be very complex. If you think you have been the victim of disability discrimination, you should consult with an experienced employment discrimination attorney to help you navigate these tricky waters.