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The Expanded Definition of Disability

The EEOC’s move to broaden the number of people who may be entitled to ADA protections could increase an employer’s risk of a lawsuit.

February 9, 2014
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Related Topics: Legal Compliance, Miscellaneous Legal Issues, Disabilities, Discrimination and EEOC Compliance, The Latest, Legal
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Americans with Disabilities Act Amendments Act of 2008

In May 2013 the U.S. Equal Employment Opportunity Commission issued an expanded definition of disability under the Americans with Disabilities Act Amendments Act of 2008. The expanded definition included cancer, diabetes, epilepsy and intellectual disabilities.

The new definition was issued not to announce a legal change to the ADAAA, but to clarify which illnesses place an individual under the protection of the law. What makes it important to employers is that the expanded definition has the potential to broaden the number of people who may be entitled to ADAAA protections and thereby increase an unknowing employer’s chance of defending itself in a costly lawsuit.

“There might now be a bigger pool of individuals with disabilities that an HR office would have to deal with, but there should be no change in the way in which they are treated. In other words, the same rules apply,” wrote Justine Lisser, spokeswoman/senior attorney-adviser for the EEOC, in an email.

Likewise, the expanded definition did not change an employer’s obligation to provide reasonable accommodations for an employee or job candidate; it simply increased the chance that employers may have to do so.

“Those documents were really intended to get other internal documents they already had published, updated to reflect the regulations and statutory revisions that occurred years prior,” said Linda Hollinshead, a partner at law firm Duane Morris in Philadelphia.

Individuals can show they have a disability in one of three ways, according to the EEOC. A person may have a disability if he or she has a physical or mental condition that substantially limits a major life activity such as walking, talking or learning. Similarly, people might have a disability if they have a physical or mental condition that is expected to last six months or more, and the condition limits a major life activity. Finally, an individual might have a disability if he or she has a history of a disability, such as cancer.

'There might now be a bigger pool of individuals with disabilities that an HR office would have to deal with, but there should be no change in the way in which they are treated. In other words, the same rules apply.'

— Justine Lisser, senior attorney-adviser for the U.S. Equal Employment Opportunity Commission

Including cancer under the definition of disability is important to millions of Americans, said Mary Rouvelas, the senior corporation counsel for the American Cancer Society Cancer Action Network.

Before having a history of a disability was officially made one of the definitions of disability, many cancer survivors were the victims of employment discrimination. For example, a worker could have started a new job after being told the person’s cancer was in remission. The employer could have fired that employee after learning that information with little fear of any legal repercussions because the previous definition of disability was so narrow.

“The Catch-22 that would happen with cancer patients was if they were diagnosed and then they got treatment and they got better, they weren’t covered under the law because they weren’t considered substantially limited in a major life activity,” Rouvelas said.

The ADAAA made cancer a disability by defining normal cell growth as a major life activity. The American Cancer Society said this policy shift is important because it found employees were being fired or demoted because of their cancer diagnosis.

“The other thing that came out of [the research] that surprised me was that the single most common cancer people were alleging discrimination on were breast-cancer cases. We saw a lot more female plaintiffs rather than male plaintiffs just based on the nature of that aspect of the disease,” Rouvelas said.

The Necessity for the ADA
Through a series of U.S. Supreme Court decisions, the definition of a disability had become so narrow that many individuals with disabilities were losing disability discrimination lawsuits, Hollinshead said.

“Essentially what happened for the [amendments] to come into being was that there was a concern by Congress that the definition of what it meant to be a disabled individual had gotten too watered down,” Hollinshead said.

Before the ADAAA went into effect in 2009, the “watered-down” definition of disability had lawyers spending a large amount of time trying to prove an individual had a disability.

“Where we used to really get into dogfights was on whether a person had a disability. Now we’re skipping to, ‘Is the accommodation necessary, does it go to something with the job and those issues?’ ” said Kathy Helms, a partner at law firm Ogletree, Deakins, Nash, Smoak & Stewart. “Quite frankly, when we’re dealing with employers now, there isn’t usually a huge issue if something is a disability because mostly everything is.”

Helms said the ADAAA’s definition of disability has provided challenges for employers when it comes to employees with common intellectual disabilities such as attention deficit disorder.

“Now arguably all of that’s covered with the expansion of the amendment. That’s where I’m really seeing the expansion and the problems employers are having,” Helms said. Employers are “doing a lot of retraining. People are being walked through programs a couple of extra times and things like that before they’re being disciplined on things.”

Max Mihelich is a Workforce associate editor. Comment below or email editors@workforce.com. Follow Mihelich on Twitter at @workforcemax.

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