The Financial Times



   Get a major life activity or get a lawyer
   Law and society, by Patti Waldmeir
   Published: April 26 2000 20:37GMT | Last Updated: April 26 2000
   20:47GMT

   patti waldmeir

   If you can think, walk, eat, sleep, shop, have sex - and occasionally
   push a vacuum cleaner over the carpets - you have just given up seven
   of eight potential ways to qualify as "disabled" under American law.

   Obviously it takes more than the odd spell of insomnia, impotence or
   household slovenliness to trigger the powerful Americans with
   Disabilities Act (ADA), which protects those who are "substantially
   limited" in any "major life activity" (such as thinking, walking and
   reproduction).

   But one man's disability is another man's feeble excuse. In the wake
   of landmark decisions last term from the US Supreme Court on the
   issue, courts around the country are struggling to define disability
   in a way which satisfies employees, employers, society and the law.

   The Supreme Court struck a blow for common sense when it ruled that
   millions of Americans who wear glasses or take blood pressure
   medication are not legally disabled. Disabilities must be real, not
   hypothetical: any problem which can be resolved through "mitigating
   measures" - medicine, eyeglasses, hearing aids, prosthetic limbs -
   does not trigger the law's protection.

   But what about those who are unwilling to mitigate? The epileptic who
   skips his seizure medication, the diabetic who mismanages her insulin,
   the slightly deaf who resist the humiliation of a hearing aid? And
   what happens if the mitigating drugs, limbs, or inhalers cause bad,
   even debilitating side effects?

   Such cases have begun to hit courts across the country. Recently, a US
   District Court in Virginia ruled that an asthmatic hospital employee
   did not qualify as substantially limited in the "major life activity"
   of breathing - and thus did not qualify under the ADA - because she
   ignored her doctor's advice to take steroids to clear her airways.

   Virginia was just following where the Supreme Court led: the employee
   bears the responsibility for correcting a correctable disability. But
   Gary Phelan, a veteran plaintiffs' employment lawyer, asks whether
   employees can be forced to take mitigating measures where there are
   risks - in this case, the potential health risks of taking steroids.

   One District Court judgment does not settle the question.

   Side effects are an even bigger problem: one circuit court ruled
   recently in favour of a plaintiff who said the lithium she used to
   treat her bipolar disorder clouded her thoughts and substantially
   limited her in the "major life activity" of thinking, qualifying her
   as disabled under the ADA.

   Not to be outdone, the liberal Ninth Circuit Court of Appeals ruled
   recently that engaging in sexual relations, sleeping and "interacting
   with others" are also major life activities, and that a plaintiff
   whose medication for anxiety and panic disorders made him drowsy and
   sexually impotent might bring him under the ADA's umbrella. (The court
   reinstated the employee's disability discrimination claim, though
   noting that his snoring apparently distracted his co-workers).

   The Supreme Court may have only itself to blame for these expansive
   definitions of the crucial phrase "major life activity": in 1998, it
   held that a plaintiff who was HIV-positive fell under the ADA because
   she was substantially limited in the "major life activity" of
   procreation.

   But lower courts have expanded that definition, and the federal
   employment watchdog, the Equal Employment Opportunity Commission
   (EEOC), has encouraged liberal readings, suggesting that eating
   disorders may substantially limit the major life activity of eating,
   and that "phantom limb pain" may limit the use of a prosthetic limb
   for the major life activity of walking.

   The EEOC also pushes to the limit the requirement that employers
   "reasonably accommodate" an employee's disability. In many cases,
   courts have taken a more sensible line: last year the Eighth Circuit
   Court of Appeals ruled in favour of an employer that went out of its
   way to provide an allergen-free environment - banning the use of nail
   polish, moving an allergic employee to a well ventilated area, and
   allowing him to leave the area if he sensed an irritant - only to find
   that he still disappeared unpredictably.

   The same circuit rejected the notion that an employer is required to
   provide an "aggravation-free environment", including an unmonitored
   phone line so that an employee plagued by emotional problems could
   talk to his doctor or family if he had a panic attack.

   Defining disability has always been more an art than a science: but
   courts that take too many liberties with the definition bring the law
   into disrepute. It should take more than persistent insomnia or an
   eating disorder to qualify as disabled. The law is there to protect
   the truly disabled - not those who have occasional problems with the
   major life activity of living.

   Contact Patti Waldmeir

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