The Broadening Definition of Disability

In late 2010 a Home Depot store in Maryland faced an expensive disability discrimination lawsuit. The home improvement retailer allegedly failed to provide unpaid leave to longtime cashier Judy Henderson for her cancer treatment, and then fired her because of her condition. Ultimately, Home Depot paid $100,000 to settle the lawsuit with Henderson.

Had Henderson been fired in 2008, it’s likely she would have lost her discrimination case: prior to 2009 it was difficult to prove cancer patients were considered as having disabilities under the Americans with Disabilities Act.

An altered definition of disability, which took shape last May with new rules that expressly cover those with cancer, diabetes, epilepsy and intellectual disabilities, addressed key blind spots in the ADA. But the expanded law amounts to a challenge for employers. The new rules from the Equal Employment Opportunity Commission increase the number of people who may be entitled to federal protections and thereby heighten an unknowing employer’s chance of having to defend itself in a lawsuit.

In particular, questions of what constitutes an intellectual disability are proving tricky for employers to navigate. Attention deficit disorder likely falls under the new definition of disability, said Kathy Helms, a partner at law firm Ogletree, Deakins, Nash, Smoak & Stewart in Columbia, S.C. She said the change in disability law, which dates to the Americans with Disabilities Act Amendments Act of 2008, marks a major shift.

“It blew the definition of disability wide open,” Helms said. “Arguably, [ADD] is covered with the expansion of the amendment. That’s where I’m really seeing the problems employers are having,” Helms said.

Disability ‘Watered Down’

The U.S. Supreme Court’s verdict on Toyota Motor Manufacturing v. Williams in 2002 made it tough for claimants to prove discrimination in many disability lawsuits. The court ruled Toyota assembly-line worker Ella Williams was not illegally denied a reasonable accommodation for her carpal tunnel syndrome because the condition did not limit her in performing any major life activity. The court essentially ruled Williams did not have a disability, and thereby narrowed the ADA’s definition.

Because the definition of disability had become so “watered down,” many individuals with disabilities were losing disability discrimination lawsuits, said Linda Hollinshead, a partner at law firm Duane Morris in Philadelphia.

To counteract the narrowed definition of disability, Congress passed the ADA Amendments Act in 2008, which broadened the definition of disability to include any condition that limits an individual from performing a major life activity. Normal cell growth, for example, was included as a major life activity, and, similarly, having a history of a disability would also land an individual under the ADA’s protection. Both features of the law are important to cancer patients and survivors.

While the new definition of disability — which includes conditions such as cancer, epilepsy, diabetes and mental disabilities — went into effect in 2009, the EEOC issued guidance for employers on those conditions in May 2013. The guidance functioned as a reminder to businesses that more employees could be ruled to have a disability under the updated ADA, and that their responsibilities toward employees with disabilities have not changed.

“There might now be a bigger pool of individuals with disabilities that an HR office would have to deal with, but there should be no change in the way in which they are treated. In other words, the same rules apply,” Justine Lisser, spokesperson and senior attorney-adviser for the EEOC, wrote in an email.

In one respect, the expanded definition has been successful at resolving differences between employers and employees with disabilities, just as Congress intended. Because the expanded definition is clear about what constitutes a disability, employers now generally seek to provide reasonable accommodations to employees claiming to have a disability rather than dispute the condition.

“Where we used to really get into dogfights was on whether a person had a disability. Now we’re really skipping to: ‘Is the accommodation necessary, does it go to something with the job and those issues?’” Helms said. “Quite frankly, when we’re dealing with employers now, there isn’t usually a huge issue about if something is a disability because mostly everything is.”

Mental Health a Gray Area

Health care and legal experts alike have praised the ADAAA’s effect on disability discrimination, but the updated law nonetheless has created some tricky situations for employers.

The new definition of disability has provided challenges for employers when it comes to employees with intellectual disabilities because those conditions are not as easy to see, compared to a person who is in a wheelchair and needs appropriate physical accommodations in the workplace, legal experts said.

“You could very well have employers that would say, ‘Ordinarily I would terminate this person because they’re not a good worker,’” Hollinshead said. “Then you learn this person has a mental health condition that makes them have difficulties with some of the softer skills in the workplace: working with others, being a leader, interacting appropriately, reacting to different kinds of pressures.”

Employment law experts pointed to attention deficit disorder as an intellectual disability that could be a challenge for employers to work through with employees. Because of the condition’s relatively ambiguous nature, an employer that doesn’t take the proper steps to accommodate it could wind up in a costly discrimination lawsuit.

In her experience, Helms said, the expanded definition has led managers to tread carefully when it comes to poor-performing employees who handle clerical tasks like billing, as well as other data-entry workers. Employers are “doing a lot of retraining,” she said. For example, employees are being walked through software programs a few extra times before they’re being disciplined for unsatisfactory performance.

Although the expanded disability definition potentially means there is a higher number of employees with disabilities in need of accommodation, that doesn’t necessarily mean an employer must provide one. “Reasonable” remains the operative word in the phrase “reasonable accommodation.” If an employee makes a request that would be too difficult or expensive for the employer to provide, the employer is allowed to deny the accommodation.

“If someone has had cancer and they walk in and say, ‘I need to take off every Friday,’ and they’re just doing it because they don’t want to work Fridays, that’s not going to work. You do have the right to get medical support for that sort of thing,” Helms said. “An employer isn’t going to get backed up against the wall by somebody like that. There is still a reasonable basis for this sort of thing.”

Importance of Expansion to Cancer Victims

Including cancer under the definition of disability is very important to millions of American workers, said Mary Rouvelas, the senior counsel for the American Cancer Society Cancer Action Network.

The way cancer patients fared poorly in disability discrimination suits — because of the way courts were interpreting a landmark Supreme Court case in 2002 known as the Williams decision — can be considered one of the many driving factors for the adoption of the Americans with Disabilities Act Amendments Act of 2008. The ADAAA was clarified last year with rules published by the Equal Employment Opportunity Commission.

“The Supreme Court had arguably narrowed it beyond the original intention. It was then Congress’ job to go back and fix it,” Rouvelas said. “There were many things that could be perceived as injustice that occurred in the meantime.”

Before having a history of disability was officially included in the definition of disability, many cancer survivors were the victims of disability discrimination. For example, a person could have started a new job shortly after being told his or her cancer was in remission. The employer then could have fired the employee after learning that information with little fear of any legal repercussions because the previous definition of disability was so narrow.

“The Catch-22 that would happen with cancer patients was if they were diagnosed and then they got treatment and they got better, they weren’t covered under the law because they weren’t considered substantially limited in a major life activity,” Rouvelas said.

The ADAAA made cancer a disability by defining normal cell growth as a major life activity. Rouvelas said this policy shift is important because the group found many people were either being fired or demoted because of their cancer diagnosis.

The new definition has also helped chip away at the institutional sexism many women face in the workplace. Because cancer and having a history of cancer are now protected by the law, women should not have to worry about being passed over for a promotion or fired if they are diagnosed with breast cancer.

“The other thing that came out of [the research] that surprised me was that the single most common cancer people were alleging discrimination on were breast cancer cases. We saw a lot more female plaintiffs rather than male plaintiffs just based on the nature of that aspect of the disease,” said Rouvelas.