Perfectly able-bodied people are protected by the Americans with Disabilities
Act (ADA) when their employers treat them as if they are disabled or regard
their past medical histories as a limitation to their performance.
The ADA defines a person with a disability as someone who: has a physical or
mental impairment which substantially limits one or more major life activities;
has a record of such an impairment; or is regarded as having such an impairment.
Generally, being somewhat limited in performing a major life activity would
not classify a person as being disabled. A person with a slight limp would not
be considered disabled but a person who needs a walker meets the definition of
being disabled. Broken limbs, concussions, minor surgery, common colds or
influenza would not normally meet the definition of disability – nor can a
lack of education contribute to a disability. For example, a person who cannot
read because of a learning disability has an impairment but a person who cannot
read because he dropped out of school does not have a disability.
Similarly, the ADA does not protect drug addicts, but former drug users who
have been rehabilitated may be protected from discrimination. Persons who have a
record of a substantially limiting condition also have protection against
discrimination under the ADA, whether or not they are currently substantially
limited in a major life activity. This included persons who have: a history of a
debilitating illness but which is either cured, controlled, or in remission;
persons who have a history of mental illness; and persons who had any other
condition which substantially limited a major life activity but which is now
either cured or under control. It also protects persons who have either been
misclassified or misdiagnosed as having a disability. Records of such
disabilities may include such things as medical, school, military, and prior
employment records.
The third part of the ADA’s definition of disability protects people
who are perceived to have a limitation. Consider the following three examples,
in which an employer’s perception of an employee, and the employer’s
reaction, create the disability and lead to ADA protection that did not exist
until the employer made an error.
1. An applicant has a slight limp which doesn’t impair his ability to
walk. However, if an employer assumes that the applicant is impaired and does
not hire him for a position that involves extensive walking, then the applicant
has protection under ADA.
2. An employer may fail to promote an employee with a facial scar to a
position that involves extensive contact with clients because the employer feels
that people will react more favorably toward a person without such a scar. In
this case, the attitude of the employer limits the employee and not the
impairment thus giving the protection of the ADA to the employee.
3. An employer terminates an employee based on a false rumor that the
employee is HIV positive. In this situation, there is no actual impairment, but
because the supervisor perceives an impairment, the employee is covered by the
ADA.
Finally, an employer cannot refuse to hire an applicant because the employer
feels the applicant would miss work excessively to care for a disabled
dependent, or that the disabled dependent’s use of health insurance may
cause future increased health care costs. There is no requirement for the
employer to provide a reasonable accommodation for the non-disabled employee,
such as a modified or reduced schedule, to care for a disabled family member.
The employee may, however, be eligible for leave or a modified schedule under
the Family and Medical Leave Act.
Before anyone comes under the employment-related protections of the Americans
with Disabilities Act, he must be otherwise qualified for the job. That means
that the person must meet the prerequisites for the job and be able to perform
the essential job functions, either with or without reasonable
accommodation.
The employer must look first at what an applicant or employee can do instead
of what they cannot do.