The Americans with Disabilities Act was enacted by the U.S. Congress in 1990 to protect disabled Americans with disabilities, similar to the protections in the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.
In 2009, President Bush signed the Americans with Disabilities Act Amendment Act (ADAAA) to further protect qualified individuals from discrimination from employers during the application process, hiring, training and other terms and conditions of employment. A “qualified individual with disabilities” is an employee or applicant who possesses all the skill, experience and education required for the job and could perform all functions of the position with or without reasonable accommodation.
While the recent Amendment to the ADA has made some changes, it is important to understand that the definition of a “disability” has not changed, but the interpretation of the term has. The ADA has outlined a three-part definition of an individual with disability; to be considered disabled, an individual would only have experienced one of the following:
1. They have a physical or mental impairment that substantially limits one or more major life activities
2. They have a record of such impairment
3. They are regarded as having such impairment
The ADAAA has expanded the definition of disability by creating a list of the “major life activities,” including caring for oneself, sight, hearing, walking, standing, lifting, breathing, and working-to name a few. The ADAAA has now included the operation of major bodily functions as a major life activity, including the functions of the immune system, neurological, respiratory, and circulatory functions-among others.
Furthermore, the ADAAA has clarified that an “episodic or in remission” disability is still considered even when inactive “if it would substantially limit a major life activity when active.” An example would be epilepsy or post-traumatic stress disorder.
The “regarded as disabled” definition may seem open to interpretation but the ADAAA further clarifies that “regarded as disabled” means the employee establishes that they have been discriminated against because of an actual or perceived physical or mental impairment. The “regarded as” requirement does not apply to minor impairments with duration of less than six months.
Luckily, for employers, the ADAAA also included a provision to prevent reverse-discrimination cases. No claim can be made by an individual without disability that felt their lack of a disability led them to be discriminated against. A typical case in the past might be a non-disabled person being overlooked for employment or promotion, possibly losing the position to a disabled person.
Employment Law is a very serious matter. If you feel you’ve been discriminated against due to a disability, please contact an experienced San Antonio employment law attorney to learn more about your options.
Jeff Davis is the Owner of Davis law firm and a highly experienced San Antonio employment law attorney. To find out more information about a San Antonio employment lawyer, please visit our disabilities act page here.