Are You Covered?
By: Prof. Elizabeth A. Pendo, St. Thomas University School of Law
The Americans with Disabilities Act of 1990 is a powerful and progressive civil rights law that prohibits discrimination in employment, public transportation, public accommodations and public services operated by private entities and telecommunications. Many people remain active and continue to work despite the challenges of living day-to-day with MS. It is important to know that the ADA prohibits discrimination by covered employers on the basis of disability in all employment practices. This includes job application procedures, hiring, firing, promotion, compensation, training, and other terms, conditions and privileges of employment.
In the last few years, there have been many court cases focusing on whether a person has a "disability" as defined by the ADA. This is an important question, because the ADA's protections only apply to "qualified individuals with a disability."
An individual with a disability is a person who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. What do the parts of this definition mean in the real world?
Although in most cases, it is agreed that MS is a disability under the ADA, you might be surprised to learn that MS does not automatically qualify as a disability.
Do you have substantially limiting impairment?
If your employer does not agree that your MS is a disability under the ADA, you must show that MS substantially limits one or more major life activities.
Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, caring for oneself, performing manual tasks and working. For example, you would be covered if you could show that MS limits your ability to walk, causes vision and balance problems, numbness or decreased sensation, causes extreme fatigue, limits your ability to lift, or that your doctor has restricted your job-related activities.
Do you have a record of such impairment?
Because discrimination often continues after the effects of a disability have subsided, the ADA prohibits discrimination against you if you have a "record of" substantial impairment. So even if your MS does not substantially impair a major life activity right now, you could be covered if you are able to show that in the past, MS has substantially limited a major life activity.
Are you regarded as having such impairment?
Finally, you may be able to show that you are "regarded as" disabled because of your MS if your employer believes that your MS substantially limits one or more major life activities. For example, if you are able to perform your job despite your MS, but your employer assumes that your MS is a problem, you may be covered under the ADA.
(Last reviewed 7/2009)