How Does the ADA Define Disability?

The ADA's definition of disability is often different from definitions used by service providers, federal programs, and advocates. Are you covered under the Americans with Disabilities Act? For a transcript of today's episode, please visit the Ask About the ADA podcast feed on BuzzSprout.

This episode features audio from the Northeast ADA Center's March webinar, ADA 101.1: Defining Disability.  Watch the full webinar.

NortheastADA.org

Transcript

JOE ZESSKI: Hello and welcome to this edition of Ask About the ADA: The Podcast, where we answer your frequently asked questions about the Americans with Disabilities Act. I'm Joe Zesski, the program manager here at the Northeast ADA Center. And on today's episode, we're going to do something a little bit different from what we usually do. 

Recently, we offered a webinar to the public from NortheastADA.org on defining disability. It's part of a larger webinar series that we're doing now on the Americans with Disabilities Act. It began with an overview of the ADA. And the second part was defining what the term "disability" meant under the law. Today's episode is going to be a snippet from that webinar. We hope you'll find it interesting. And if you'd like to find out more, you can find information in the show description below, where to find the archive of the webinar and to find the slides that were part of that presentation. Enjoy. 

[MUSIC PLAYING] 

Thank you, Michelle. And thank you everyone for joining us today. We're glad that you are here to be a part of our ADA 101 series. This is ADA 101.1, Defining Disability. Just as a reminder that here at the Northeast ADA Center we don't provide legal advice, but we provide technical assistance and information on the Americans with Disabilities Act. 

Let's look at what we're going to cover. We have quite a few things that we're going to touch on all about understanding disability and what it means. Because the word "disability" has a lot of different meanings in different contexts and different settings. And so we want to get to the bottom of some of those. So we'll look at a global perspective at first. We'll take a big picture view of what disability means, but then we'll narrow our focus and zoom in on what disability means under the Americans with Disabilities Act. 

And something that you'll hear us mention throughout today's webinar is that the word "disability" can mean very different things depending on the field that you're talking about. And so we are going to also talk about how service providers use the term disability. For example, when they're thinking of things like the Social Security Administration or the Veteran's Administration, disability in those settings as a very different meaning and interpretation than it does under the Americans with Disabilities Act. 

With all that being said, let's go to our next slide. And the question asks, must I apply to be covered by the Americans with Disabilities Act? Well, one of the-- well, we will answer this along the way. The answer will actually be no, but we'll get back to this point later. This is our next slide. 

Is diabetes a disability? I'm not going to give an answer at this point, but we're going to come back to this question later. And so stick with us through the webinar. And when we get close to the end, we're going to revisit the question here and give you an answer. That being said, so keep this in mind, let's start looking at the big picture around disability and go to our next slide. 

One of the key things that is important to be aware of is that we form our concepts and connotations for words based on a lot of different factors. It's about how we grew up, our surroundings, how we perceive different things. It could be our understanding of different concepts can be affected by our religious upbringing, our other beliefs that we may have or have developed either from our family or from other places. 

The same is true with disability. And how people understand the term disability is very complex and it's a blend of different factors. Now, what makes it tricky here, as with some other terms as well, but with disability, there's also a legal component to it. So we have people's sort of common understanding of how they interpret or understand disability mixed with a legal definition. 

Often, these two can sort of come together and get mixed up and jumbled, which makes it difficult sometimes when people are trying to understand their rights or if they're a state or local government or a business, trying to understand their responsibilities under different laws such as the Americans with Disabilities Act. And so it's important to keep this factor in mind. 

Certainly, in terms of our culture, there have been a lot of different ways to look at disability. And we'll go to our next slide and see some of those. Now, there are many different ways you could put these into different categories. This is one way that we have used in the past at the Northeast ADA based on others research to talk about some of the historical perspectives on disability. 

One is that there is a moral view of disability. And under this view, disability was seen as sort of divine judgment on a person or their family that it was a very negative concept, disability. You have a medical model of disability where people perceived disability to be a defect or an illness that needed to be cured. Disability was something that needed repairing. 

A third concept is a functional model. And this type of model was largely influential in the definition of disability that you'll find in the Americans with Disabilities Act. And of course, the predecessor to the ADA, the Rehabilitation Act of 1973, where the ADA got its definition for disability. And under the Rehabilitation Act, it embodies the concept of that individual with a disability needs to be given the right tools in order to have equal access and participation in the community and in society. 

One final model to consider is a civil rights or identity based model. And as the term suggests, this sees disability in terms of civil rights or in terms of being essential to an individual's identity that disability is not a negative concept, but rather it is simply part of an individual's life experience and the way that they interact with the world. 

And if you think about these different models, these are laid out in a generally historical progression going from the moral view, which certainly held sway for many years in multiple cultures. But for a long time even in Western culture to moving towards a medical model in which you may think of representations, like Tiny Tim, if you could think who that character is from the Christmas Carol. Again, an object of pity, but someone who needed a medical cure or treatment, to a functional model which you saw more of after World War One with the improvements in technology and a beginning of a transition. To a greater inclusion to the Civil Rights model, which came about in the 1960s, 70s, and after an identity model, which is more recent. 

Let's go to our next slide. And again, this highlights what I was just talking about. You see a progression in terms of how disability is understood from the negative aspects of it or negative perceptions of it, being a weakness or a deficiency of some sort moving towards something more positive, something more like part of the human experience, a different perspective. And that's a transition that happens over time. And it's not something that was done all at once. 

Let's go to our next slide. And while we're still here talking about general perceptions of disability, I did want to touch on a definition from Marian Webster. So just so we have a sense of how we currently struggle to define disability in terms of society. And this slide I will read for those who may have difficulty reading the screen. 

It says "disability impairs, interferes with, or limits a person's ability to engage in certain tasks or actions or participate in typical daily activities or interactions. So again, even in this sort of dictionary definition, if you will, of disability, it's issues around impairment and measuring disability against typical, quote, unquote, "activities." And that's part of the dilemma of disability is how to describe it. And so from a societal or cultural perspective, it's not easy. 

Now, that being said, of course, we have laws in our community. And laws generally have to use some forms of definitions so that there is sort of an agreed reference point. And so an important one, and of course, the one that we specialize here in the Northeast ADA is the Americans with Disabilities Act. And let's go to our next slide and take a look at the ADA's definition of disability. 

Disability has three major prongs or parts under the ADA. Either a person can have a substantial limit-- excuse me, an impairment that substantially limits one or more major life activities, a record of such an impairment, or be regarded as having such an impairment. 

Now, if someone has an impairment, that's more obvious. Someone has a condition that limits one of their major life activities. We will define what major life activities is in a moment. But an example that people may think of when they think of disabilities are some of the things that are more obvious. If someone has an impairment in terms of sensory perception, perhaps someone can't see or cannot hear, or perhaps someone cannot walk. But of course, there are a lot of different degrees of that. 

Now, a record of such impairment means that someone has had an impairment in the past, but it no longer affects them. So perhaps someone who has had cancer is in remission. They had a disability. They don't currently have it, but they still have a record of having that disability. They would fall under the second definition or second prong. 

The third part of the definition, someone being regarded as having a disability, means that an individual may not actually have a condition that impairs their major life activities, but for one reason or another, a person representing another organization or another business or a government entity treats them as if they do have a disability. So it's about how someone is treated regardless if they actually have an impairment that limits a major life activity. 

And I told you we would try to give some clarity about major life activities. And what we have here is an illustrative list. There is no exhaustive list of what constitutes a major life activity from the Department of Justice. The Department of Justice defines a majority of regulations for Titles II and III, and they do provide a list of possible major life activities. 

And I'll highlight some of them here. They range from things like carrying from oneself, to sleeping to learning and thinking, performing manual tasks, and of course, things that might be sensory-based. So there are many different types of major life activities. But it's important to remember that this list here on the slide is not exhaustive. It's rather an example of what might constitute major life activities. 

And so when you're thinking about disability under the ADA, you have to look at what is being effective, what is being impacted by the person's condition. That might be a life activity that people participate in. 

And something to keep in mind, we saw different examples of activities, things that people do, but it's important to note that major life activity also covers things that are bodily functions, things that our bodies typically would do. So for example, someone's immune system could be affected by a condition that would create a disability under the ADA. 

For example, if someone had HIV or AIDS, their immune system is compromised, they would be covered under the ADA. Digestive systems or the bowels. If someone has IBS, irritable bowel syndrome, they may have a disability under the ADA possibly. The brain, if you think of people who have had traumatic brain injuries, they may often be covered or typically would be covered by the ADA. 

The respiratory and circulatory system. Again, people can often think of this as things like severe asthma or perhaps someone has different heart conditions, COPD, they would likely be covered under the ADA. The reproductive system can also be covered as well and the endocrine system as well. 

So all of the bodily systems can be affected in some way that would cause a limitation in a major life activity. So you have to keep in mind that disability, it's pretty broad under the ADA. For many years, there was debate around how the term "disability" should be understood under the law. 

And with the advent of the ADA Amendments Act in 2008 and the regulations that came out of that, it is very clear that the term "disability" is meant to be understood in a broad context. And so that's why you see when we're talking about the different aspects of it, I'm emphasizing the breadth of coverage, how broad it is. 

When you're thinking about the term "disability" under the ADA, there are different rules of construction. In other words, the different ways of understanding how the term is meant to be understood. And of course, I was just talking about how the word "disability" is intended to be broad under the Americans with Disabilities Act. In fact, in its language, Congress inserted that the spirit of the law is meant to be understood broadly. 

Over the years from the initial passage of the ADA, various Supreme Court decisions had narrowed the interpretation of disability. And often, this led to cases not being addressed in terms of whether or not there was discrimination, but rather did this person have a disability. And Congress wanted to take specific action to say that the intent of Congress was that the ADA should be understood broadly. And so that has to be something kept in mind when looking at the term "disability" under the ADA. 

So something does not need to be severe, quote, unquote, to be considered substantially limiting. For example, let's say you had a worker at an auto plant who had carpal tunnel syndrome and it became worse. And the worker needed an accommodation in order to continue doing their job. 

The manufacturer, however, was aware that this person was able to do her other daily life activities. So she was able to drive, she was able to brush her teeth. But whatever repetitive action she was doing as part of the manufacturing line she couldn't do anymore. The auto company cannot claim that, well, because she's able to drive, she doesn't have a disability. 

You don't have to be limited in multiple areas in order to be considered substantially limited in a major life activity. So keep that in mind as we look at understanding how disability should be applied under the ADA. 

And with this part, continuing our conversation here about the rules of construction, there's a few things to keep in mind. When you're trying to decide or understand if a substantial limitation exists, you cannot consider what they call ameliorating measures. And those are tools, devices, or things that alleviate or reduce the impact of a disability or that facilitate a means of working around the impact of a disability. 

So, for example, if someone is on medication for diabetes. And when they're on the medication, their diabetes is well controlled, then you have to look, though, at the person as if they were not on medication. What would their condition be like if they didn't have that? Or if someone has an assistive listening device of some sort, you have to consider looking at whether or not the person has a disability, you have to look at how they function when they don't have that device. In this case, a piece of technology. That ameliorating measure. And that's how you decide or consider if the person has a substantial limitation. 

Also, things that are episodic or that go into remission can still be disabilities. So for example, I mentioned cancer earlier. This would be an example of that. Let's say a person had breast cancer, was treated, went into remission. That person is still considered to have a disability. In this case, they would be covered under the record of having a disability. 

Or let's say someone is subject to panic attacks. Now, they don't have that condition all the time, where they're dealing with a panic attack. However, it's something that's episodic, that can happen or be prompted by different factors in the environment. That person has a disability even though they are not continually in a state of panic. 

Well, I've talked through some of these different points about understanding how the ADA interprets disability. And we'll see some examples, specific examples of disability. And again, this is by no means an exhaustive list, but I tried to provide a cross-section of different types of disabilities so that you could see and hear different conditions that might be considered disability. So there are ones that people often think of and are familiar with, people who may be deaf or who are blind or people who may have mobility issues. 

But you see there are also things like diabetes, epilepsy, HIV and AIDS, multiple sclerosis, schizophrenia, or post-traumatic stress disorder. In other words, many of these, in fact, the majority of these disabilities, are ones that are not going to be seen, which is a whole other issue that is a topic for a whole other webinar. 

But some of these are often not considered or thought of commonly as being disabilities, when in fact they are. And again, that goes into a whole range of issues around perceptions of the word disability, how people have traditionally understood it, and how they have interpreted it. 

So I've talked about what disability is. Let's look at what it is not. Disability for the ADA has to be something, if you will, that's more permanent. In other words, it can't be what is called transitory or minor. So if someone has a broken arm, yes, that certainly poses a substantial limit in a major life activity. But it's expected without a great duration of time, without a long time, to not impact the person. 

So for that reason, something like a broken arm or acute bronchitis, those are not considered disabilities. Something that generally is expected to last only several months or so are typically not considered to be disabilities. Right now, we see conversation around, is COVID-19 in itself a disability? And while there's no official guidance saying one way or another, typically, right now it's not considered a disability in and of itself. However, it can have long term effects that certainly can be disabilities. So that's important to keep in mind as well. It's not just having a condition, but it could be effects that result from the condition. 

Another area where a similar concept comes up is around pregnancy. And we get questions at the ADA Center of whether a pregnancy is a disability. And it is not. However, that being said, it could lead to disabilities, such as gestational diabetes, something along those lines, which are a condition that would be considered to be a disability. But pregnancy itself is not. 

A few other things to note from the language of the ADA and its regulations itself is that it's clear that sexual orientation is not considered a disability, or compulsive gambling, or poor judgment, or a lack of-- or acting improperly in terms of conduct. Those are not disabilities. Neither is illegal use of drugs. And that's another area where we get questions at the ADA center. 

People are not protected in terms of the illegal use of drugs. However, if it's prescribed drugs, someone is prescribed Suboxone, for example, that person is protected in terms of using drugs in reference to the ADA. And often, you see cases of discrimination around Suboxone that are related to health care access. 

The Department of Justice has reached multiple settlement agreements with different medical providers on this. If someone is legally using Suboxone, in other words, an opioid, that person can't be denied access. It's only if it's illegal use of drugs. Also, if a person is in rehab after drug use, they are also protected in terms of having a disability and being considered someone with a disability. But if someone's using drugs illegally and they're not in rehab, they have no protection under the ADA. 

Lastly, important to note that social and economic status cannot be considered a disability. Certainly they are factors that can create huge barriers for people in society. However, the ADA was written so that those in and of themselves are not considered disabilities. And that's important to keep in mind too. 

Let's go to our next slide and look at, when does this matter? Why is it important to keep in mind this last section I was talking about in terms of the Americans with Disabilities Act definition of disability? Well, obviously, what's most important is where the ADA actually applies. And so that's why it's important to know what the ADA covers and what it does not. 

The ADA itself is about equal rights, equal access, equal opportunity. It's not a law that creates an entitlement or benefit, but rather tries to create a level playing field in order to allow people with disabilities to be fully integrated into the community and be able to have the right to access the community as they choose. 

Also keep in mind that the ADA doesn't cover interactions between private individuals. So if there's a dispute with your neighbor, maybe perhaps you're a person disability, your neighbor harasses you or has very discriminatory things to say about you, technically, it's not an ADA situation. Certainly, it's discrimination, but it's not designed to cover that. Again, it's the person's relationship with different institutions, employers, state and local government, and public accommodations or businesses. 

Lastly, just as a reminder, the ADA doesn't generally cover religious organizations. It only applies to them in terms of an employer, but not in terms of Title III. In other words, not in terms of access to their facilities by the public. So again, keep that in mind. And the same is true too for private clubs. 

And we'll revisit that first question here in terms of the ADA. No, you do not have to apply in order to be covered by the Americans with Disabilities Act. It is a civil rights law. And just as you would not need to apply to be covered by the Civil Rights Act of 1964, you don't need to apply to be covered by the ADA. You simply have to be someone who meets the definition of disability or a companion of them. In some cases, a companion of individuals who have disabilities. And you need to be interacting with an entity that's covered by the law as I was just mentioning a few moments ago, employer, state and local government, public accommodation. In other words, where the ADA. And so that's important to keep in mind. 

And with that being said, we've covered what the ADA has to say about defining disability. But as I mentioned when we first started, we get a lot of calls here at the ADA center that are confused about what the ADA is or is not and what disability may mean or is not. And a lot of times, people think the ADA is and disability applies in all circumstances where it doesn't. 

[MUSIC PLAYING] 

Well, thank you for listening today. I hope you enjoyed that part of the webinar that you got to listen to. If you want to hear the entire webinar archive, please feel free to visit our website, NortheastADA.org, and look on our Media page. You can also find a link to the webinar in our show description if you want to listen to the full webinar archive. 

And of course, as always, if you want to ask a question, please feel free to reach out to us. You can email us at NortheastADA@cornell.edu. You can call us at 1-800-949-4232, or visit us on the web at NortheastADA.org. Follow us on social media. And of course, as always, I'd like to thank Grace Fairchild, our student worker here with us at the Northeast ADA who is our producer and editor on the podcast, as well as Peter Quinn of the YTI Media Team, who does our final edits on our podcast. Once again, I'm Joe Zesski. I thank you for listening and I look forward to continuing the conversation with you in the future. 

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