The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

The Americans with Disabilities Act: Who is Disabled?
By Hon. Bonnie M. Wheaton

The Americans With Disabilities Act[1] was passed by the United States Congress in 1990 after Congress made numerous findings, including that “the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”[2]  Congress also found that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”[3]  

The general principle permeating the ADA is embodied in the ADA’s prohibition against discrimination:  “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[4]

In 2008, the ADA was amended in an attempt to clarify and reconcile many of the issues faced by employers.[5]  However, the existence of a disability under the ADA is still a question of fact, as demonstrated by the plethora of cases attempting to define who is a disabled person.  By its terms, the ADA applies to employers with fifteen or more employees.   Many situations involving disability are obvious to any reasonable employer.  Other situations are problematic because a physical limitation may not meet the statutory criteria for employer action, or an employer may not consider an employee that is “otherwise qualified” for a particular job. 

The ADA defines “disability” as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment”[6] 

Much litigation has focused on the first factor.  The 7th Circuit Court of Appeals[7]  reiterated the requirement that a disability must substantially limit a major life activity:

“The applicable ADA regulations explain that a person is ‘substantially limited’ in a major life activity when he is ‘[s]ignificantly restricted as to the condition, manner or duration under which [he] 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.’ 29 C.F.R. § 1630.2(j)(1)(ii). This regulation adds that ‘an individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking.’ Id. § 1630 app. On the other hand, “an individual who had once been able to walk at an extraordinary speed would not be substantially limited in the major life activity of walking if, as a result of a physical impairment, he or she were only able to walk at an average speed, or even at moderately below average speed.” [8]

In Turner v. The Saloon, Ltd.,[9] the plaintiff alleged that his psoriasis periodically caused him pain requiring him to walk as with a limp.  He did, however, admit to playing pick-up basketball and baseball a few times per week during the summer and testified that he could “bicycle and walk usually fine.”[10]  In finding that the plaintiff was not disabled, the Court cited several cases finding that there was no disability within the meaning of the ADA where an individual could walk distances of less than a mile consistently, could walk a quarter-mile before having to stop and rest, could walk with limp and became “dysfunctional” after two miles of walking, or walked with a limp and required a ten-minute break during every hour of walking or standing.[11]

An employee need not actually be disabled to fall under the protection of the ADA.  If an employee is terminated because the employer regards the employee as being disabled, the employer may face litigation.  For example, in a recent federal case, an employee unsuccessfully attempted to commit suicide and was later diagnosed with a mental disorder-mood disorder.[12]  The employee was subsequently terminated after being hospitalized and filed a charge of discrimination under the ADA, alleging that his mood disorder did not substantially limit his major life activities but that his employer treated it as a limitation.

The Court discussed the shifting of the burdens of proof as they relate to the ADA, saying:

"Under this framework, the plaintiff first has the burden to establish a prima facie case of discrimination. Once the plaintiff makes a prima facie case, the defendant has the burden to articulate a legitimate, non-discriminatory reason for the adverse employment action. If the defendant does so, the burden then shifts back to the plaintiff to show that the defendant's proffered reason is merely a pretext for unlawful discrimination.”[13]

The Court then found that there was a question of fact and denied the Defendant’s motion for summary judgment. Employers are also limited in the use of physical or mental examinations as a condition of hiring employees or continuing employment. The 7th Circuit Court of Appeals expressed the general principle articulated by the ADA: 

“Congress enacted three provisions in Title I which explicitly limit the ability of employers to use ‘medical examinations and inquiries’ (42 U.S.C. § 12112(d)(1)) as a condition of employment: a prohibition against using pre-employment medical tests; a prohibition against the use of medical tests that lack job-relatedness and business necessity; and a prohibition against the use of tests which screen out (or tend to screen out) people with disabilities.”[14]

In Karraker v. Rent-A-Center, Inc.,[15] the employer used the Minnesota Multiphasic Personality Inventory (MMPI) to determine “personality traits,” such as the ability to work well in groups and the employee’s comfort in a fast paced office, as part of the promotion screening process.  The test, however, also measures the traits of depression, hypochondriasis, hysteria, paranoia, and mania of its employees.  The Employees sued, alleging that the practice violates the ADA.

The Court ruled that an employee could be denied promotion “simply because of his or her score on the MMPI.”[16]  Further, the employer did not show that the MMPI was job-related and consistent with business necessity, and it therefore violated the ADA prohibition against the use of medical tests which tend to screen out persons with disabilities.[17]  

Not every physical impairment rises to the level of disability within the meaning of the ADA.  In Rooney v. Koch Air, LLC.,[18] an employee (Rooney) injured his back.  His employer received a functional capacity evaluation that showed Rooney could perform most of the tasks associated with his job, including the task of visiting job sites.  However, Rooney refused to continue to visiting job-sites, was demoted to “inside” work, and subsequently resigned.  Rooney sued under the ADA, claiming that Koch Air had discriminated against him and constructively discharged him on account of his disability.[19] 

In affirming the district court’s grant of summary judgment in favor of the defendant, the Court held that an employee must be capable of performing the “essential functions” of the job, saying: 

“The ADA protects only disabled individuals who can perform the essential functions of their position. To determine whether a job function is essential, we look to the employer's judgment, written job descriptions, the amount of time spent on the function, and the experience of those who previously or currently hold the position.”[20]

Similarly, the ADA does not protect an alcoholic employee who violates an employer’s “no call/no show” policy, even if the absenteeism is caused by the alcoholism.  The ADA specifically permits employers to "hold an employee . . . who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the... alcoholism of such employee."[21]  In VandenBroek v. PSEG Power CT LLC.,[22] the Court analyzed whether the alcoholic plaintiff, who was a boiler utility operator, was “otherwise qualified” within the meaning of the ADA:

An employee is ‘otherwise qualified’ if he ‘is able to perform the essential functions of that job, either with or without a reasonable accommodation.’ ‘Essential functions’ are duties that are ‘fundamental’ to the job in question. In determining which duties are fundamental, we accord ‘considerable deference to an employer's judgment.’ [A]bsenteeism resulting from alcoholism is a factor that bears on whether an employee is otherwise qualified.'” [23]

The Court agreed that the employer could have concluded that the plaintiff was not “otherwise qualified” because he posed a risk of recurring absenteeism.  

As the ADA enters its third decade, the Courts will undoubtedly continue to refine the definition of disability to meet the Congressional mandate.  Attorneys who counsel employers will be well advised to follow developments in this area of the law.

[1] 42 U.S.C. § 12101 et seq.

[2] 42 U.S.C. § 12101 (a) (7).

[3] 42 U.S.C. §12101.

[4] 42 U.S.C §12112 (a).

[5] See “The ADA Amendments Act of 2008”, William D. Goren, DCBA Brief, Vol. 22, January 2010.

[6] 42 U.S.C. §12102(1).

[7] Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010).

[8] Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010).

[9] Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010).

[10] Turner v. The Saloon, Ltd., 595 F.3d 679, 689 (7th Cir. 2010).

[11] Turner v. The Saloon, Ltd., 595 F.3d 679, 689 (7th Cir. 2010).

[12] Lizotte v. Dacotah Bank, 677 F.Supp.2d 1155 (D.N.D. 2010).

[13] Lizotte v. Dacotah Bank, 677 F.Supp.2d 1155, 1170 (D.N.D. 2010).

[14] Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (2005).

[15] Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (2005).

[16] Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 834 (2005).

[17] Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 836-37 (2005).

[18] Rooney v. Koch Air, LLC., 410 F.3d 376 (7th Cir., 2005).

[19] Rooney v. Koch Air, LLC., 410 F.3d 376 (7th Cir., 2005).

[20] Rooney v. Koch Air, LLC., 410 F.3d 376, 382 (7th Cir., 2005).

[21] 42 U.S.C. § 12114(c)(4).

[22] VandenBroek v. PSEG Power CT LLC., 356 Fed.Appx. 457 (2nd Cir. 2009)

[23] VandenBroek v. PSEG Power CT LLC., 356 Fed.Appx. 457, 459 (2nd Cir. 2009)

Hon. Bonnie M. Wheaton received a BA cum laude from Carleton College and a JD magna cum laude from Northern Illinois
University College of Law. She has been a judge since 1988 and is currently the presiding judge of the Chancery Division of the 18th Judicial Circuit Court. She is the Chair of the DCBA Diversity Committee.

DCBA Brief