PART
II: KEY ADA TITLE II TERMS AND CONCEPTS AND HOW THEY APPLY TO TANF
PROGRAMS |
PART
II: KEY ADA TITLE II TERMS AND CONCEPTS AND HOW THEY APPLY TO TANF
PROGRAMS
Introduction
The heart of Title II lies in a handful of key concepts, an
understanding of which is essential for advocates.
These concepts are interrelated, and a court’s decision on how
one of them applies to a particular situation will often dictate how the
others apply. As a result,
you should consult most or all of the Chapters in Part II, not just the
ones you think may apply.
Given the close connections among all of the core ADA concepts,
many ADA case opinions have multiple grounds for their rulings.
Therefore, by necessity, the Manual does not include all of the
alternative grounds for each court decision.
You should always consult the case law in your jurisdiction
rather than relying solely on the Manual. Chapter
5: Individual with a Disability
A. In General
There has been extensive litigation on the ADA definition of
“disability” in cases brought under Title I of the ADA, which covers
discrimination in employment. As
the section of the ADA defining “disability” applies to all of the
titles of the ADA, these cases are directly relevant to who can bring
ADA claims against state and local government agencies under Title II.
Much of the litigation has focused on the question of whether a
physical or mental impairment causes a “substantial limitation” on a
major life activity. In
fact, in one major study of Title I court decisions, plaintiffs’
inability to prove that a major life activity was substantially limited
was among the six most common reasons that plaintiffs lost their cases.[368]
EEOC regulations define substantial limitation as “[inability] to
perform a major life activity that the average person in the general
population can perform or significantly restricted as to the condition,
manner or duration under which an individual can perform a particular
major life activity as compared to the condition, manner or duration
under which the average person in the general population can perform
that same major life activity.”[369]
This would mean, for example, that an individual who can walk,
but only for a short distance, with great difficulty or extremely
slowly, would be substantially limited in the major life activity of
walking. (i)
Actual Disability
In Sutton v. United
Airlines, Inc.,[370]
the Supreme Court held that when determining whether an individual is
substantially limited in a major life activity, the effect of
“mitigating measures” such as glasses, hearing aids, medication, and
prosthetic devices must be taken into account.[371]
In Sutton, two airline
pilots with severe myopia that was corrected with glasses sued United
Airlines after the airline refused to hire them on the basis that their
uncorrected vision made them unsuitable for the job. The pilots sued, but the Supreme Court held that their case
was properly dismissed because they did not have disabilities under the
ADA. The Court held that
the determination of whether an individual has a substantially limiting
impairment must be made by viewing the impairment in its “mitigated”
state, i.e., taking into account the effect of any medication, equipment
or other measures used to treat or correct the impairment or its
effects. As the pilots
stated in their complaint that with glasses they were not limited in
seeing, the Court held that they had not pled that they were
substantially limited in a major life activity of seeing and granted the
defendant’s motion to dismiss.[372]
In taking this approach, the Court explicitly rejected the
EEOC’s Interpretive Guidance to Title I regulations, which stated that
“the determination of whether an individual is substantially limited
must be made on a case-by-case basis, without regard to mitigating
measures such as medicines, or assistive or prosthetic devices,”[373]
and the approach taken in DOJ’s Interpretive Guidance to Title II
regulations on this issue.[374]
The Court also ignored statements in the ADA legislative history,[375]
and rejected the approach taken by most of the Circuits.[376] The
Court’s rationale for this lack of deference was that Congress gave
the EEOC and DOJ authority to promulgate regulations on specific titles
of the ADA, and the definition of “disability” is not in those
titles but is located in a section of the statute defining terms that
are generally applicable throughout the statute.[377] While
this is true, Congress must have understood that defining the term would
be a part of both agencies’ responsibilities, since there is no way
they can interpret and enforce Titles I through III without doing so.
Sutton creates a double
standard for people with disabilities and employers.
The employer in Sutton obviously considered plaintiffs’ uncorrected vision
relevant to its decision not to hire them, yet the Court held that it
was not relevant to whether the plaintiffs could sue to challenge the
very same employment decision.
In Albertsons, Inc.
v. Kirkingburg,[378]
decided on the same day, the Court went further and held that an
individual’s “ability to compensate” for an impairment, whether
conscious or unconscious, is a “mitigating measure.”
Therefore, it held, if as a result of this compensation an
individual is no longer substantially limited in a major life activity,
the individual is not a person with a disability covered by the ADA.[379] The
plaintiff in Albertsons was an individual with monocular vision who learned to
compensate for this condition, although he performed the major life
activity of seeing differently than others did.
The full implications of these decisions are not yet clear. One
troubling development is that a few cases decided after Sutton
have held or implied that individuals who could have mitigated the
effects of an impairment by taking a prescribed medication but failed to
do so are not substantially limited in a major life activity.[380]
Sutton and Albertsons
also create a potential tension between the ADA’s definition of
disability and its reasonable accommodation and modification
requirements. Paradoxically, defendants may now attempt to argue that
some of the very measures people with disabilities seek as reasonable
modifications for their disabilities, such as tutors with expertise in
learning disabilities, and drug and alcohol treatment programs, mitigate
the effects of impairments to such an extent that individuals receiving
these measure no longer have disabilities and thus are no longer
entitled to reasonable modifications under the ADA. As individuals with
drug problems are only protected by the ADA if they have successfully
completed treatment or are in treatment and not currently using illegal
drugs,[381]
this approach would be particularly absurd, because the same treatment
that qualifies an individual with a drug problem for protection under
the ADA may disqualify the individual from protection once the treatment
takes effect. Fortunately,
some courts have already rejected this approach.[382]
As bad as these Supreme Court decisions are, many people with
disabilities will still be considered to have “actual” disabilities
under the ADA. Many people
continue to be substantially limited in a major life activity even when
they use hearing aids and other devices, equipment or medication. For
many others, the substantial limitation is mitigated by medication or
other measures only part of the time.
And mitigating measures such as medication may have side effects
that themselves cause a substantial limitation in major life activities.[383] In Sutton,
the Court made clear that both “positive” and “negative” effects
of mitigating measures must be taken into account in determining whether
an individual is substantially limited,[384]
and the negative effects of psychotropic medications used to treat
psychiatric disabilities are specifically mentioned.[385] Cases decided in the wake of Sutton
have had mixed results, and some plaintiffs’ claims have survived.[386]
In the future, advocates may want to focus on major life
activities such as sleeping, thinking, interacting with others, and
maintaining social and sexual relationships, particularly for clients
with psychiatric disabilities, as these activities are often limited as
a result of a psychiatric impairment, medication used to treat the
impairment, or both. In
addition, a few plaintiffs have successfully argued that the onerous
requirements of treatment for their disabilities are themselves a
substantial limitation in numerous life activities.[387]
Even if courts interpret Sutton
to disqualify people from ADA protection once treatments take effect,
this should not affect initial coverage under the ADA or eligibility for
reasonable modifications, as long as individuals are substantially
limited in a major life activity when reasonable modifications are
requested.
(ii)
Regarded As Having a Disability
The ADA also protects those who are “regarded as” having
disabilities.[388] Some
individuals who do not meet the definition of having “actual”
disabilities may be protected under the “regarded as” prong of the
ADA’s disability definition. Title
II regulations define “regarded as having an impairment” as: 1)
has a physical or mental impairment that does not substantially limit
major life activities but that is treated by a public entity as
constituting such a limitation; 2)
has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others toward such
impairment; or 3)
has none of the impairments defined in paragraph (1) of this definition
but is treated by a public entity as having such an impairment.[389]
To date, most cases brought under a “regarded as” theory
implicitly rely on the first of these theories, namely that the
individual has an impairment that is not substantially limiting but is
regarded by others as being so. Unfortunately, some courts have
misinterpreted this theory and required plaintiffs to prove that a
perceived impairment was in fact substantially limiting.[390]
Plaintiffs have also had great difficulty with “regarded as”
claims when they claim they were regarded as substantially limited in
the major life activity of working.
EEOC regulations provide,[391]
and courts have held, that to be substantially limited in the major life
activity of working, individual must be limited in a “class of jobs”
or a “broad range of jobs in various classes,”[392] not just one job.
However, this requirement has been extended from “actual”
disability claims to “regarded as” claims, and courts have ruled for
defendants because plaintiffs are unable to show that an employer
regarded them as being substantially limited in a class of jobs.[293]
In Sutton, the Supreme
Court put its seal of approval on this approach by holding that the
plaintiffs did not state a claim under the “regarded as” theory of
disability because their complaint pled that the employer regarded
plaintiffs as disabled in the major life activity of working, yet
alleged only that the employer regarded plaintiffs as unable to be
“global airline pilots.” According
to the Court, “global airline pilot” was not sufficiently broad to
constitute a “class of jobs.” The
Court held that to be regarded as substantially limited in working, the
employer must regard the plaintiff as substantially limited in a class
of jobs. According to the
Court, “global airline pilot” was not sufficiently broad enough to
constitute a “class of jobs.”[394]
In Murphy v. United States
Parcel Service, Inc.,[395] the third ADA case decided on the same day,
the Court held that mechanic jobs that require a U.S. Department of
Transportation (DOT) interstate driver’s license are not a “class of
jobs.” So a mechanic with
high blood pressure whose employer believed he did not qualify for such
a license was not “regarded as” unable to work under the ADA.
The plaintiffs in both Sutton
and Murphy failed to assert that the employer regarded them as
substantially limited in any major life activity other than working.
In light of these decisions and the amorphousness of the “class
of jobs” concept, both “actual” and “regarded as”
discrimination claims should be based on a major life activity, other
than working, when possible.
Advocates may also have greater success if they bring “regarded
as” claims under the second and third “regarded as” theories.
Advocates can argue that under the second theory, an employer’s
attitude should be measured by the employer’s actions, not
after-the-fact statements. Under
the third theory, there is no reference to major life activities, or to
the employer’s beliefs; the relevant issue is the employer’s
actions.
Some courts have held or suggested that people who are protected
under the ADA because they are “regarded as” having disabilities are
not entitled to reasonable accommodations under Title I.[396]
Therefore, it is probably preferable for a client to qualify for ADA
protection as a person with an “actual” disability whenever
possible. (iii)
Record of Having a Disability
The ADA also protects people who have a “record of” a
disability.[397]
Title II regulations define “record of such impairment” as
“had a history of, or has been misclassified as having,” a physical
or mental impairment that substantially limits one or more major life
activities.[398]
Department of Justice Interpretive Guidance to the Title II
regulations states: This provision is included in
the definition in part to protect individuals who have recovered from a
physical or mental impairment that previously substantially limited them
in a major life activity. Discrimination on the basis of such a past
impairment is prohibited. Frequently
occurring examples of the first group (those who have a history of an
impairment) are persons with mental or emotional illness, heart disease,
or cancer; examples of the second group (those who have been
misclassified as having an impairment) are persons who have been
misclassified as having an impairment, mental retardation, or mental
illness.[399]
To date, this prong of the ADA definition of disability has been
the subject of less litigation than
“actual” and “regarded as” disability claims, although
this may well change in light of Sutton, Murphy, and Albertsons.
As with the “actual” and “regarded as” disability prongs,
courts have required plaintiffs to demonstrate that the prior impairment
was in fact substantially limiting,[400] and have been reluctant to hold that particular
conditions were substantially limiting per
se.[401]
Three closely related issues may arise in “record of” claims.
The first is whether an individual who has not been diagnosed
with a disability can have a “record of” a disability.
It may be possible to argue that an individual who seeks services
from a state or government program at one point in time, or an
individual who requests services for a disability and who later returns
to the same agency, has established a record of a disability.
The reason for this is because the agency is on notice that the
individual had a substantially limiting impairment, and given the
passage of time, the long-term nature of the impairment is established.
The EEOC has stated in guidance that written records are not
essential in “record of” claims.[402]
The second issue is whether a defendant must have knowledge of
prior substantially limiting impairment. Some cases suggest that the
defendant’s knowledge is relevant to the “record of”
determination.[403]
It may be possible to argue that when a defendant has enough
information for a reasonable person to be on notice that an individual
tried to disclose a disability in the past, this is sufficient.
It may also be possible to argue that when individuals seek
services at an earlier time and have had symptoms of a disability, or
attempt to disclose a disability, a defendant has knowledge of a
disability that is sufficient for a “record of” claim.
The EEOC has taken the position that while a defendant’s
knowledge of the disability is not necessary to prove coverage under the
ADA, it is necessary to prove discrimination.[404]
The third issue is causation, specifically, whether plaintiffs
have to prove that the record of disability is related to the
discrimination. In some cases, causation will be obvious, such as when a
public entity opposes the establishment of a facility for individuals
recovering from drug or alcohol addiction, or opposes a halfway house
for people with psychiatric disabilities.[405]
It may also be possible to argue that when a defendant
discriminates against an individual because of a current physical or
mental condition that tends to last a long time and the individual can
later demonstrate that the condition was substantially limiting, then
there is a sufficient link between the condition and the discriminatory
conduct. The EEOC has taken the position that written records or
employer knowledge of those records are not essential in “record of”
claims, but there must be evidence that an employer acted on the basis
of the record to prove discrimination.[406]
If courts require plaintiffs to show written documentation of a
prior substantially limiting impairment or to demonstrate that
defendants knew about this documentation, then establishing that an
individual has a “record of” a disability will be at least as
difficult as establishing that a present impairment is an “actual”
disability. EEOC
Interpretive Guidance states that there are many types of records that
may contain evidence of a record of impairment, “including, but not
limited to . . . educational, medical or employment records.”[407]
Nevertheless, as these records are created for other purposes and often
contain diagnostic information rather than information about an
individual’s functional abilities, using such records to demonstrate
the existence of a prior substantially limiting impairment has often
proved difficult. With
mixed results, courts have addressed the question of whether an
employer’s knowledge of leaves of absence,[408]
functional limitations,[409]
hospitalization,[410]
diagnosis,[411]
and eligibility determinations from other agencies[412] provide sufficient evidence that an employee had
a record of a substantially limiting impairment.[413]
As with “regarded as” claims, the question of whether
individuals with a “record of” a disability are entitled to
reasonable accommodations is unsettled in the case law.[414]
(iv)
Major Life Activities
ADA regulations contain examples of major life activities,
including caring for oneself, performing manual tasks, walking, seeing,
speaking, hearing, breathing, learning, and working,[415]
but the list is not intended to be exclusive.[416] In its Guidance, the EEOC has identified several
additional major life activities that may be of particular relevance to
people with psychiatric disabilities, such as the ability to sleep,
concentrate, and interact with others.[417]
In its Interpretive Guidance, the EEOC suggests that if an
individual is limited in any other major life activity, work should not
be used as the life activity that qualifies as individual as having a
disability.[418]
As mentioned above, in Sutton the Supreme Court went further and expressed doubt about the
notion that work is a major life activity under the ADA.[419] (v)
Duration of Substantial Limitation
To qualify as a disability, the substantial limitation caused by
an impairment, its effects must be permanent or long term, or expected
to be permanent or long term.[420] However,
unlike the definition of disability used to determine eligibility for
Social Security Disability and Supplemental Security Income,[421]
the ADA does not require an expected duration of at least twelve months.
A condition that is potentially long term may qualify as a
disability if its effects are severe and it is not possible to know its
duration.[422]
The EEOC has said in Enforcement Guidance that an impairment is
substantially limiting if it lasts for more than several months and
significantly restricts a major life activity during that time.[423]
Yet the Enforcement Guidance states that chronic conditions with
episodic symptoms, such as many psychiatric disabilities, are covered if
they are substantially limiting in their active phase and there is a
strong likelihood of recurrence.[424] This
means that each active phase need not last for several months. After Sutton,
however, these recurring states would have to be substantially limiting
even after mitigating measures are taken. B.
Individual with a Disability in TANF Programs
(i)
The Effect of the Supreme Court’s Definition of “Actual”
Disability on TANF Clients
Although Sutton, Murphy, and Albertsons
unquestionably limit the number of people protected by the ADA, for a
number of reasons, they probably pose less of a problem for TANF
applicants and recipients than for others.
Many
TANF applicants and recipients have disabilities that have never been
diagnosed.[425]
Disabilities that have not been diagnosed are probably not being
“mitigated” with medication or other treatment. TANF applicants and
recipients with unmitigated disabilities that are substantially limiting
should continue to fall within the ADA’s definition of disability.
Psychiatric disabilities are common in the TANF population. As
noted above, many people with psychiatric disabilities remain
substantially limited in major life activities even when they have been
diagnosed and medication has been prescribed for them, either because
medication does not eliminate the symptoms that cause a substantial
limitation, medication is not consistently available or affordable, or
because the side effects of the medication cause or contribute to a
substantial limitation in major life activities.
Other disabilities that are common in TANF applicants and
recipients are unlikely to be completely mitigated.
Many individuals with mental retardation and learning
disabilities are able to learn skills and tasks with appropriate
education and training, but many will remain substantially limited
because of the time it takes to complete tasks.
An argument can be made that some disabilities prevalent in the
TANF population cannot be mitigated. Mental retardation is one example.
Education and training do not cause the brains of people with
mental retardation to “compensate” for the developmental disability
in the way that the plaintiff in Albertsons
learned to compensate for his monocular vision.
Title II regulations identify learning as a major life activity.[426] Individuals
with mental retardation are substantially limited in the major life
activity of learning regardless of any accommodations they receive. One
court has taken this type of approach by holding that hearing aids and
lip reading may improve the ability of a hearing-impaired individual to
communicate but do not necessarily improve the ability to hear, a major
life activity.[427] One
Circuit has implicitly rejected this approach by holding that
individuals with learning disabilities may be able to
“self-accommodate” to such an extent that they are not substantially
limited.[428] (ii)
The Effect of the Supreme Court’s Definition of “Regarded As”
Having a Disability on TANF Clients
The “regarded as” theory of the ADA disability definition may
prove less useful to TANF applicants and recipients than the
“actual” disability theory, although this will largely depend on the
nature of the discrimination. If
individuals with particular conditions are routed into particular types
of training programs based on assumptions about their abilities, a
“regarded as” theory should apply.
It should also apply when programs treat people with particular
conditions less favorably than others because of myths, fears, and
stereotypes.[429] (iii)
The Effect of the Supreme Court’s Definition of “Record Of” Having
a Disability on TANF Clients
The “record of” prong may also prove less useful in the TANF
context than the “actual disability” theory, because so many TANF
applicants and recipients have undiagnosed disabilities, existing
records of other agencies will rarely have the type of information
needed to establish a record of a substantially limiting impairment. Even under broad interpretations of the “record of”
theory, it may be difficult to show that a prior acute phase was
sufficiently long and limiting to constitute a disability. If
individuals are being routed into low-level programs by TANF agencies
because programs are aware of individuals’ prior disabilities and are
making assumptions about people’s current abilities based on this
knowledge, the “record of” theory of coverage should be useful. (iv)
General Considerations When Using ADA Definition of Disability on Behalf
of TANF Clients
Wherever advocates seek to use the ADA on behalf of TANF
applicants and recipients, several points are crucial.
Not every person with a functional limitation will be an
“individual with a disability” under the ADA.[430]
To be protected by the ADA, the substantial limitation must be
caused by a physical or mental impairment.
Many people who have difficulty reading have learning
disabilities or mild mental retardation, but some do not.
Only the former is protected under the ADA.
Difficulties with concentration, stress, agitation, and
difficulty navigating the welfare system may be, but are not
necessarily, symptoms of disabilities.
In many instances these symptoms and behaviors suggest the need
for screening and assessment to determine whether the individual has a
disability. But alone, they
are not conclusive evidence that an individual has a disability
protected by the ADA.
In addition, despite numerous studies documenting that many
people in public assistance programs have disabilities, none of these
reports define disability the same way as the ADA or Sutton.
As a result, these studies do not necessarily reflect the percentage of
TANF applicants and recipients with disabilities covered by the ADA.
With a few exceptions, each TANF program is free under PRWORA to
create its own exceptions to work requirements, time limits, sanctions,
and other program requirements, and many have done so for at least some
individuals with disabilities.[431] TANF
programs, however, rarely if ever use the ADA definition of disability
when defining the category of individuals entitled to these exceptions.
For example, California TANF program (CalWORKS) exempts from work
requirements individuals who provide medical proof of a disability that
will last for more than 30 days and “significantly impair[] the
recipient’s ability to be regularly employed or participate in
welfare-to-work activities, provided that the individual is actively
seeking appropriate medical treatment.”[432]
The New York TANF program exempts from work requirements individuals who
are “disabled or incapacitated” as defined by the welfare agency or
a private doctor referred by the agency[433]
and those who are “ill or injured to the extent that he/she is unable
to engage in work for up to three months as verified by medical
evidence.”[434]
None of these definitions are identical to the ADA definition of
disability. Some programs have no formal definition of disability for
those eligible for exceptions based on physical or mental conditions
because they do not differentiate between people with disabilities and
people in other hard-to-serve populations.[435] This
means the population of individuals with physical and mental conditions
eligible for exceptions to TANF requirements and people covered under
the ADA will not completely overlap.
As a result, some individuals entitled to work exemptions and
other exceptions to program requirements under state law will not be
entitled to these exceptions as reasonable modifications under the ADA.
In addition, some individuals who are entitled to these
exceptions as reasonable modifications under the ADA will not be
entitled to them under state law, in which case it may be necessary to
rely on the ADA in advocacy efforts.
Back to the top [368]. See John W. Parry, Study Finds Employers Win Most ADA Title I Judicial and Administrative Complaints, 22 Mental and Physical Disability L. Rep. 403-07 (1998) (finding that the “substantial limitation” requirement was one of six major reasons that plaintiffs lost Title I ADA claims). [369]. 29 C.F.R. pt. 1630 app. § 1630.2(j) (1999). Department of Justice regulations do not define this term, but interpretive guidance to Title II contains the same definition. See 28 C.F.R. pt. 35 app. A § 35.104 (1999). [373]. 29 C.F.R. pt. 35 app. A § 1630.2(j) (1999). The EEOC subsequently amended its guidance to conform with Sutton. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 65 Fed. Reg. 36327 (June 8, 2000) (to be codified at 29 C.F.R. §§ 1630.2(h), (j)). [375]. See S. Rep. No. 101-116, at 23 (1989); H.R. Rep. No. 101-485(III), at 28 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 450-51; H.R. Rep. No. 101-485(II), at 42 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 334. [376]. See, e.g., Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997), cert. denied, 522 U.S. 1048 (1998); Harris v. H & W Contracting, 102 F.3d 516 (11th Cir. 1996); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th Cir. 1995). But see Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 n.3 (5th Cir. 1996) (stating belief that Congress intended the substantial limitation determination be made with regard to mitigating measures). [377]. See Sutton v. United Airlines, Inc., 527 U.S. 471, 480 (1999). Given this rationale, there is no reason to assume that the Supreme Court or lower courts will not defer to the EEOC and DOJ regulations, interpretations and guidance on other issues. [380]. See Tangires v. Johns Hopkins Hosp., 79 F. Supp.2d 587 (D. Md. 2000), aff’d, 2000 U.S. App. LEXIS 23555 (4th Cir. Sept. 20, 2000) (unpublished opinion); Spradley v. Custom Campers, Inc., 68 F. Supp.2d 1225 (D. Kan. 1999). [381]. See 42 U.S.C.A. § 12210 (West 2000). The one exception is when the discrimination is in the provision of health care of treatment for drug problems. See 42 U.S.C.A. § 12210(c) (West 2000). [382]. See Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, No. C-98-2651 SI, slip op. at 9 (N.D. Cal. Mar. 16, 2000) (unpublished order) (granting preliminary injunction in a challenge to an ordinance barring the operation of a methadone maintenance program and rejecting the argument that plaintiffs were not protected by the ADA because the methadone mitigated their condition)[hereinafter Bay Area Order]; Finical v. Collections Unlimited, Inc., 65 F.2d 1032, 1038 (D. Ariz. 1999) (holding that an assisted listening device provided by an employer could not be considered a mitigating measure). [383]. See U.S. Equal Employment Opportunity Commission, Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing “Disability” and “Qualified” (1999) available at http://www.eeoc.gov/docs/field-ada.html (providing a detailed discussion of other ways in which individuals may qualify as substantially limited after Sutton). [386]. See, e.g., Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) (reversing summary judgment for the defendant where plaintiff argued that medication used to treat a psychiatric disability caused a substantial limitation in thinking); McAndlin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999), amended 201 F.3d 1211 (9th Cir. 2000) (reversing summary judgment for the defendant because there was an issue of fact as to whether the plaintiff’s limitations in sleeping, sexual relations, and interacting with others were substantially limited); Belk v. Southwestern Bell Tel. Co., 194 F.3d 946 (8th Cir. 1999) (holding individual who wore leg brace was substantially limited in walking); but see Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000) (holding individual with severe depression who experienced no symptoms on medication was not a person with a disability). [390]. See, e.g., Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 885 (6th Cir. 1996); Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir. 1992 ) (Section 504 case). [392]. See Davidson v. Middlefort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998); Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) (Section 504 case). [396]. See, e.g., Weber v. Strippet, Inc., 186 F.3d 907, 917 (8th Cir. 1999); Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 n.12 (3d Cir. 1999) (en banc) (court did not decide issue but stated that there was “considerable force” to the position that individuals “regarded as” having disabilities are not entitled to reasonable accommodations); but cf. Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) (assuming that an individual “regarded as” having a disability is entitled to reasonable accommodations). [400]. See, e.g., Colwell v. Suffolk County Police Dep’t, 158 F.3d 635 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999); Sorenson v. Univ. of Utah Hosp., 194 F.3d 1084 (10th Cir. 1999); Goldsmith v. Jackson Mem’l Hosp. Pub. Health Trust, 33 F. Supp. 2d 1336 (S.D. Fla. 1998), aff’d, 198 F.3d 263 (11th Cir. 1999); Barger v. Owens-Brockway Glass Container, Inc., No. 97-4418 FMS, 1999 U.S. Dist. LEXIS 945 (N.D. Cal. Feb. 1, 1999); Buchanan v. Safeway Stores, Inc., No. 95-1658 FMS, 1996 U.S. Dist. LEXIS 18325 (N.D. Cal. Dec. 6, 1996). [401]. See, e.g., Goldsmith, 33 F. Supp.2d at 1342 (history of alcoholism is not a per se record of a disability); Jones v. HCA Health Serv. of Kansas, Inc., No. 94-1412 JTM, 1998 U.S. Dist. LEXIS 4419, at *32 (D. Kan. Mar. 9, 1998) (court refuses to hold that a history of drug use is always substantially limiting). [402]. See U.S. Equal Employment Opportunity Commission, Executive Summary: Compliance Manual Section 902, Definition of the Term “Disability” (2000) [hereinafter EEOC Disability Definition], available at http://www.eeoc.gov/docs/902cm.html. [403]. See, e.g., Whitfield v. Pathmark Stores, 39 F. Supp.2d 434, 444 (Del. 1999); Mark v. Burke Rehabilitation Hosp., No. 94-CV-3596, 1997 U.S. Dist. LEXIS 5159 (S.D.N.Y. Apr. 17, 1997). [405]. See Bay Area Order, supra note 382, at 10. [408]. See, e.g., Whitfield, 39 F. Supp.2d at 444; Mastio, 948 F. Supp. at 1414; Hilburn v. Murata Elec. of N. Am., 17 F. Supp.2d 1230 (N.D. Ga. 1998); Granzow v. Eagle Food Ctrs., Inc., 27 F. Supp.2d 1105 (N.D. Ill. 1998). [410]. See, e.g., Marke v. Burke Rehabilitation Hosp., 1997 WL 189124, at *4 (S.D.N.Y. Apr. 17, 1997); Madjessi v. Macy’s West, Inc., 993 F. Supp. 736 (N.D. Cal. 1997). [412] See, e.g., Kaleriristos v. CTF Hotel Mgmt. Corp., 958 F. Supp. 641 (D.D.C.), aff’d mem., 132 F.3d 1481 (D.C. Cir. 1997); Howell v. Sam’s Club, 959 F. Supp. 260 (E.D. Pa. 1997) aff’d, 141 F.3d 1153 (3d Cir. 1998). [413]. Compare Hillburn, 17 F. Supp.2d at 1382 (employer knowledge of leave of absence insufficient to establish record of disability), with Whitfield, 39 F. Supp.2d at 444 (employer knowledge of leaves of absence sufficient to defeat employer motion for summary judgment on whether plaintiff had a record of a substantially limiting impairment). [414]. See, e.g., Davidson v. Middlefort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir. 1998) (court did not reach the issue but suggests that people with a record of disability may be entitled to at least some types of accommodations). [416]. See id. (“[T]he phrase major life activities means functions such as walking, seeing, hearing, speaking, breathing, learning, and working.”) (emphasis added); see also 29 C.F.R. § 1630.2(i) (1999) (defining major life activities in exactly same language). [417]. See U.S. Equal Employment Opportunity Commission, EEOC Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities 10-12 (1999) [hereinafter EEOC Psychiatric Disabilities Guidance] available at http://www/eeoc.gov/docs/psych.html. [419]. See Sutton, 527 U.S. at 492 (“We note, however, that there may be some conceptual difficulty in defining 'major life activities' to include work.”). [420]. See 29 C.F.R. § 1630.2(j)(2)(iii); see also Ryan v. Grae & Rybicki P.C., 135 F.3d 867, 871 (2d Cir. 1998) (holding that plaintiff’s colitis, often asymptomatic, was neither permanent nor long term and therefore not substantially limiting); Brown v. Lankenau Hosp., 1997 U.S. Dist. LEXIS 7289, at *4 (E.D. Pa. May 16, 1997) (looking at duration of impairment in making disability determination); Downs v. Massachusetts Bay Transp. Auth., 13 F. Supp.2d 130, 139 (D. Mass. 1998) (denying summary judgment where unclear whether plaintiff’s injuries involved temporary or permanent effects.) [423]. See EEOC Disability Definition, supra note 402; EEOC Psychiatric Disabilities Guidance, supra note 417. [426]. See 28 C.F.R. § 35.104(3) (1999). DOJ Section 504 coordination regulations, which Congress instructed DOJ to use as the basis for Title II regulations, also includes learning as a major life activity. See 28 C.F.R. §41.31(b)(2) (1999). Congress mentioned learning as a major life activity in the Committee Reports. See S. Rep. No. 101-116, at 22 (1989); H.R. Rep. No. 101-485(III), at 28, reprinted in 1990 U.S.C.C.A.N. 267, 451. [429]. See Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 737 (9th Cir. 1999). [430]. Cf., Mitchell v. Barrios-Paoli, 687 N.Y.S.2d 319, 326 (N.Y. App. Div. 1st 1999) (challenging placement of people with disabilities into public assistance jobs incompatible with their disabilities where the court decertified the plaintiff class on the basis that not all individuals who were “employable with limitations” affected by work experience requirements were people with disabilities under the ADA). [431]. See The Urban Institute, State Welfare-to-Work Policies for People with Disabilities: Changes Since Welfare Reform 8 (October 1998) [hereinafter October 1998 Urban Institute Report], available at http://www.urban.org/welfare/we12work.pdf.
|
