5335 Wisconsin Avenue, NW, Suite 440, Washington, D.C. 20015 Tel: 202-895-1506   Fax: 202-318-0798 E-Mail: lgoldsmith@goldsmithfirm.com The Americans With Disabilities Act: Are You Protected? By: Leizer Goldsmith Perhaps you have been denied a job, or maybe your boss refused to provide a small, simple accommodation you needed for your disability, that would have allowed you to perform the job as well as someone else. Can you successfully sue under the Americans With Disabilities Act? The key to answering this question is to determine if you are "disabled" within the law's definition of that term. If you are not "disabled", "regarded as disabled," or do not have a "record" of impairment, you have no rights to any job adjustments and no protection from firing or other adverse employment actions under the ADA. Unlike workers compensation laws, under the ADA, it does not matter how the individual incurred the disability; however, the disability must be fairly severe for the individual to gain any rights from the law. The ADA defines a "disability" as: "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." The regulations interpreting the ADA include among the covered "major life activities," walking, sitting, standing, lifting, reaching and working. In evaluating your own status, first, determine if you have a medical condition that substantially impairs one of your major life activities. The word "substantial" is critical here, because courts may not consider the condition sufficiently severe if, for example, the impact of the condition can be minimized or eliminated with medication or an assistive device. For instance, a person who can walk normally after a hip replacement might not be viewed as disabled with regard to the activity of walking, because the new hip compensates for the loss of the original hip so that there is no substantial impairment. Generally, you should not expect to be considered substantially impaired if your impairment is temporary, rather than permanent in nature. Next, figure out if the life activity impacted by the impairment is a major life activity, or just an activity not sufficiently major to afford you the protections of the ADA. In a helpful decision handed down two years ago, the Bragdon case, the Supreme Court held that the list of major life activities includes procreation. In that case, the Court extended ADA protections to a person with asymptomatic HIV. However, an exhaustive list could be generated of activities people enjoy in life that courts might not view as "major life activities." A major problem that has frequently arisen, is that the "major life activity" that is "substantially impaired" is the activity of "working". Most federal courts have interpreted this very strictly, by requiring the employee to show that the impairment is causing the employee to be unable to perform not just a particular job, but rather, a "broad class of jobs" or a "broad range of jobs in various classes." In one recent case, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit reversed a jury verdict in favor of a janitor with a back impairment that limited his ability to lift and perform manual labor, because the panel concluded that it was legally impossible for the janitor to have properly proved that he was disabled from working, since he had not introduced expert testimony from a "vocational rehabilitation" specialist. Although the full D.C. Circuit is rehearing the case, the panel's decision serves as a warning that courts can sometimes be very rigid in interpreting the ADA. The ADA remains a viable statute for protecting the rights of those who possess the most obvious types of impairments, such as those that severely impact major life activities such as seeing, hearing and walking. In evaluating whether your condition merits protection, make sure to be creative and consider using major life activities other than working, which may give you a better chance to win.