By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
he Americans with Disabilities Amendments Act (ADA) went into effect January 1, 2009. Among its chief elements are new definitions of key terms—especially the legal definition of a disability. It is too soon to tell what effect these changes will have on police departments or municipalities; however, most experts agree that an increase in the number of ADA-related lawsuits is likely to result.
Definition of a Disability
The ADA provides protection to persons who are disabled, have a record of being disabled, or are associated with a disabled individual. The 2002 U.S. Supreme Court case of Toyota Motors v. Williams found that to be substantially limited in a major life activity, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”1 The original ADA definition of a disability is “a physical or mental impairment that substantially limits an individual in one or more major life activities.”
The Amendments Act expands upon the definition of “substantially limits” by rejecting the Supreme Court’s standards in Toyota and by expanding the definition of a disability by stating that the question of whether a major life activity is “substantially limited” should not be interpreted strictly.
“Regarded as” Disabled
The Amendments Act broadens the group of individuals eligible for protection under the “regarded as” prong of the ADA, even though they may not have a condition otherwise falling within the definition of disability, but it also specifies that they are not entitled to workplace accommodations unless they have actual disabilities.
The Amendments Act adds clarification, providing that an individual who is “regarded as” having a disability is one who has been subjected to discrimination based on an actual or perceived physical or mental impairment—whether or not the impairment limits or is perceived to limit a major life activity.
This would be the case in any of the following situations:
- The person’s impairment, while not substantially limiting, is perceived as such by the employer.
- The person has an impairment that is substantially limiting only because of the attitudes of others toward the impairment.
- The person has no impairment at all but is regarded by the employer as having a substantially limiting impairment.
If the impairment is transitory and minor, the individual is not regarded as having a disability. Transitory is defined as an impairment with an actual or expected duration of six months or less.
The Amendments Act will allow individuals who formerly had to seek protection under the “record of” and “regarded as” prongs of the ADA’s definition of disability to argue that they have an actual disability because, when active, their impairment substantially limits a major life activity. In the case of cancer that is in remission, individuals can now argue that their impairment would substantially limit them in normal cell growth when active.
Chiefs should be careful that neither they nor their supervisory personnel regard an applicant as having a disability because of a physical defect, such as a limp or a scar, despite being healthy and unimpaired. There have also been cases in which someone was falsely rumored to be disabled and cases in which employees have recovered from a disability, but their employers still considered them to be disabled.
Major Life Activities
The Amendments Act provides clarification on what Congress believes constitutes a “major life activity.” It legislates the list prepared by the Equal Employment Opportunity Commission (EEOC), with some additions. While noting that the list is not exhaustive, it specifically states that learning, concentrating, thinking, and even working are major life activities, among others.2
The Supreme Court questioned whether working is a major life activity at all in Sutton v. United Airlines,3 but it never ruled specifically on the issue. The Amendments Act now explicitly includes working as a major life activity but does not elaborate on what would constitute a substantial limitation. Working is included in the EEOC’s list of major life activities, but the commission cautioned in its technical assistance manual that an individual is only substantially limited in working if an impairment significantly restricts the person’s ability to perform either a class of jobs or a broad range of jobs in various classes, when compared with the average person with comparable training, skills, and abilities.
Under this standard, individuals would not be substantially limited in working if they were unable to perform only a single job. For example, a person who cannot qualify as a police officer because of a correctable vision impairment but who can find other public service employment, or a soccer player who can no longer play but can coach other players, would not be substantially limited in working if it were only those specialized jobs they could no longer perform. Courts looked not just at what jobs employees could not do but also at all the other jobs they could do.
The education community expressed concern over the list of major life activities included in the Amendments Act. Some groups felt that the addition of “thinking” and “concentrating” would be particularly problematic in higher education and would force schools to lower academic standards. Congress chose to let the definitions of major life activities and mitigating measures remain. However, it also added a provision clarifying that an accommodation is not required if making the modification in policies, practices, or procedures—including academic requirements in postsecondary education—would fundamentally alter the nature of the goods and services involved.4
Impairments That Are Periodic or in Remission
The EEOC has said that cancer may not qualify as a disability if in remission. Courts have likewise ruled that impairments that are episodic, such as epilepsy, or in remission, such as cancer, may not always be considered disabilities.5 However, the Amendments Act explicitly includes impairments that are episodic or in remission in the definition of disability if they would substantially limit a major life activity when active.
Before the Amendments Act, if an officer whose cancer was in remission was fired because of the cancer, the person could not argue that he or she was actually disabled under the ADA because the cancer did not substantially limit one or more major life activities. The individual would have to argue instead that he or she had a record of impairment or was regarded as being disabled.6 Because the new definition of disability includes impairments that are episodic or in remission, officers could now show that they do have an actual disability. This change in the law may mean many fewer “regarded as” claims being filed in court.
Because of this change, chiefs and municipalities must be careful not to mistreat any applicant. It is possible that applicants might later claim that they had a disability but were in remission, and they were treated unfairly in the application process.
Also, normal cell growth is included in the Amendments Act definition of a major bodily function and is thus considered a major life activity. This is likely to affect decisions dealing with cancer. It is possible that the act would not necessarily change the result in all cases holding that a particular diagnosis does not constitute a disability. However, cancer could now be deemed virtually a per-se disability because of the inclusion of normal cell growth in the list of major life activities, but this remains to be seen as courts apply the amendments. Likewise, impairments that require individuals to take drugs that have the side effect of suppressing the immune system may now automatically qualify as disabilities because of the inclusion of “functions of the immune system” in the list of major life activities. When the EEOC issues new regulations that define “substantially limited,” the application of this provision could be affected.
The Amendments Act explicitly rejected the requirement enunciated by the Supreme Court in Sutton, which held that in determining whether impairment substantially limits a major life activity, the ameliorative effects of mitigating measures are to be taken into account. The Amendments Act expresses congressional disagreement with the Court’s position and instead says that in determining whether a major life activity is substantially limited, mitigating measures will not be taken into account.7
What this means is that if an officer or another employee requests a workplace accommodation, the chief or municipal employer must evaluate the individual without any mitigating measures. The employer must imagine and evaluate if any major life activities of the employee would be affected if the employee were not receiving medical treatment or any type of assistance.
In a March 2008 informal discussion letter, the EEOC attempted to clarify employers’ responsibilities in dealing with conduct stemming from a disability in the workplace. It advised that although employers do not have to excuse inappropriate conduct, they might have to provide an accommodation that would allow the employee to meet the conduct standard in the future.
Employers are free to enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, said the commission. “Similarly, employers may prohibit insubordination towards supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers.”8
Reasonable accommodation “does not include excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity even if an employee’s disability causes him to violate the rule,” the commission said. However, the EEOC warned that an employer must provide an accommodation to help the employee meet the conduct standard in the future, absent any undue hardship.9
Although employees are generally responsible for requesting accommodations, an employer should ask whether one is needed without being asked if the employer “(1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.”10 If the employee denies needing an accommodation, the employer has fulfilled its duty to participate in the interactive process.
When the disability is not obvious, an employer may request medical documentation to determine whether the individual meets the ADA’s definition of having a disability and what type of accommodation may be necessary.
Finally, the EEOC commented, “If a reasonable accommodation is needed to assist the employee in controlling his behavior to prevent another conduct violation, and the employer refuses to provide one that would not cause undue hardship, the employer will violate the ADA.”11
The letter was meant to be an informal discussion rather than an official opinion.
Despite the comments in the EEOC letter, chiefs are not required to tolerate intentionally inappropriate behavior. Officers are expected to comply with traditional rules and regulations. However, if an officer is found to have some “disability” that manifests itself in ways that violate standards of conduct, it is possible that a chief may have to reasonably accommodate the officer’s needs for treatment, for example. This might include time off to attend counseling sessions, such as anger management courses. ■
1Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
242 U.S.C. 12102.
3Sutton v. United Airlines, 527 U.S. 471 (1999).
442 U.S.C. 12201.
5See Corley v. Department of Veterans Affairs, 218 Fed. Appx. 727 (10th Cir. 2007).
6See Olds v. United Parcel Service, Inc., 127 Fed. Appx. 779 (6th Cir. 2005).
742 U.S.C. 12102.
8U.S. Equal Employment Opportunity Commission, Office of Legal Counsel, “ADA: Definition of ‘Disability’; Reasonable Accommodation; Employee Misconduct,” March 27, 2008, http://www.eeoc.gov/foia/letters/2008/ada_disability_employee_misconduct.html (accessed December 1, 2008).