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Disability Law
University of Illinois School of Law
Kordik, Ellen R.

Title I

Is the D covered by the ADA?

§ 12111(3) Covered entity: Employer, employment agency, labor organization, or joint labor-management committee.
· EEOC § 1630.2(e): Employer: 15 or more employees, not including governmental organizations or private membership clubs
Covered Entities
· Insurance companies

Insurance companies could be covered entities.
Carparts v. New England

§ P was HIV+ and was denied insurance coverage that he received from work
§ In pari materia: EEOC states employer should be given the same meaning under Title VII.
§ Insurance company can be an employer if it (i) functions as an employer with regards to health coverage and exercising control over important aspect of P’s employment or (ii) if acting as an agent of the employer, or (iii) if Title VII has similar language interpreted.
§ The physical location is required to be a place of public accommodation under Title III, but not Title I.
· State government entities

P cannot sue the government for money damages under Title I, but can sue for injunctive relief. Such suits are barred by the 11th Amendment
Remember, 11th Amendment only applies to states so citizen can sue a city
U of AZ v. Garrett: P wants to sue for money and injunctive relief. Congress did not validly abrogate state’s immunity when it allowed private citizens sue states for money damages under Title I, for they are barred by the 11th Amendment.

· Other remedies

Private citizens may sue States for injunction
States can be used by USDOJ for employment discrimination under Title I for money and injunctive relief
Local governments not immuned.

Does the P have a disability?

§ 12102(2) Disability (under general provision)
§ A physical or mental impairment that substantially limits one or more major life activities
a. § 1630.2(h-j): Physical or mental impairment; Major Life Activity; Substantially limits
§ A record of such impairment
§ 1630.2(k): Record of such impairment
§ Being regarded as having such an impairment
§ 1630.2(l): Regarded as having such an impairment
a. Has a physical or mental impairment that does not substantially limits one of more major life activities
b. Has a physical or mental impairment that substantially limits major life activities only as a result of attitudes of others towards the impairment
c. Has none of the impairments but is treated by the covered entity as having a substantially limiting impairment.
Prong 1


· Individualized Assessment
i. Remember, the assessment is made individually, and not generally, because it is “with respect to an individual”
ii. Implications: there is no such thing as a disability for the purposes of the ADA. Instead a court must do an individualized assessment in which it looks at the individual and the mitigating factors at the same time. (Sutton v. United Airlines)
iii. Spirit of the statute: Courts have argued that individualized assessment is consistent with the spirit of the statute.
· Contagious Diseases
i. A person suffering from a contagious disease can be considered as having a disability (School Board of Nassau County v. Arline)
ii. The issue of contagious diseases is not covered under this analysis. The issue of contagiousness goes to the question of whether an individual is qualified or more under direct threat.
· Voluntariness and Mutability
i. Nothing in the language where the ADA cares about how the disability came about.
ii. Condition doesn’t have to be immutable to be covered under the ADA. Mutability is relevant only for assign whether something is an impairment of a major life activity.
iii. So a morbidly obese person could be considered disabled (Cook v. Rhode Island)
· Mitigation
i. Mitigating measures must be taken into account in determining whether an individual has a disability under the ADA. Hypocritical under the Sutton v. United Airlines case because D will not consider the mitigating circumstances when hiring, but will under the ADA claim.
ii. Courts should take into account of self-mitigating measures in assessing disability. Albertsons v. Kirkingburg: plaintiff learned visual cues to compensate for lack of depth perception.
iii. Murphy v. UPS: Plaintiff failed to show he was disabled because, with his meds, his impairment does not substantially limit his major life activity.

Major Life Activity

What is a major life activity?

§ 36.104 (2) “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working” (not an exclusive list)
· Reproduction
i. Reproduction is a major life activity (Bragdon v. Abbott)
ii. However, should the major life activity have to be a daily routine? In the case above, there was no evidence that reproduction was a major life activity for the plaintiff before she had HIV. Dissent said it should have been.
iii. Must be considered a daily routine task if the Toyota holding is broadly interpreted.


i. EEOC § 1630.2(j)(2) “Significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes”
ii. Don’t just look at the particular job he’s denied from
iii. In Bolton v. Schivener: the plaintiff failed to show that he was limited in a class of jobs and didn’t provide information such as vocational training, geographical areas to which he had access, number or types of jobs demanding similar training from which he’s be disqualified etc.
iv. Sutton v. United Airlines: Commercial Airline Pilot is too narrow

Manual Tasks

i. To be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts him from doing a major life activity. The impairment’s impact must be long term. (Toyota v. Williams)
ii. Manual tasks unique to a particular job are not necessarily important parts of people’s lives. The central inquiry is whether the claimant is unable to perform variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.
iii. How broad is this decision? Does that mean the “daily lives” requirement applies only to manual tasks or all major life activities (because that’s what the “major” means)?
iv. Implications:
· This affects many workers with repetitive motion injuries and was failed by a good decision by employers
· Greater applicability than just manual tasks.
· Employees would have to show more of their pri

ction so that the incumbent in the position is hired for his or her expertise or ability to perform that function
(3) Evidence could included the employer’s judgment, written job descriptions, amount of time spent on that function, the consequences of not requiring the incumbent to perform the function, collective bargaining agreement, the work experience of past incumbents, and the current work experience of the incumbents in similar jobs

Qualified Individual with a Disability
· § 504 of Rehab Act: “Otherwise Qualified Individual with a Disability”
o Qualified in spite or despite handicap? One who is able to meet all the program requirements in spite of his handicap.
o Southeastern Community College v. Davis: Deaf nurse sought admission to a nursing program but was denied. In ADA, “otherwise” was taken out.
· Former Employees
Is P a QID if he is not working at the time he made the claim?
o Gonzales v. Garner Food Services: P diagnosed with AIDS, fired from his job and employer didn’t wan to pay for his claims. Plain language “holds and desires” in QID definition indicates one who is currently employed. Court agrees with the plain language of the statute and claims P is not a QID. Dissent claims that it is a non-exclusive list of types of discrimination
o Castellano v. City of New York: Ps are retired FFs who took disability retirement instead of service retirement and received less in pensions. Court here claims that the plain language would have an irrational result of anyone fire or retired would have no rights under the ADA. Court went with the purpose of the statute and ruled that the “qualified” frame work becomes irrelevant when discussing fired/retired workers. All that is required is that the employee is eligible for employment benefits, i.e. qualified to receive post-employment benefits.
· Illegal use of drugs and the use of alcohol
o QID does not include any employee or applicant who is currently engaging in the illegal use of drugs
o Shafer v. Preston Memorial Hospital: P claims that she is a QID because she’s not “currently” engaged in illegal drugs, although it’s because D fired her and put her in rehab. Court says P is not a QID because interpreting it as a whole seems to imply an ongoing or periodic activity and person has not permanently ended. If not, there would be an absurd result of D having to catch P in the act or make rash decisions. P did not fall into the safe harbor provisions
o Safe Harbor for Recovering Addicts (§ 12114)
Individuals who have successfully completed a supervised drug rehab program and is no longer engaging in illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in