4.3 "QUALIFIED INDIVIDUAL"
4.301 "Qualified Individual" Defined.
A. In General. The ADA prohibits discrimination against a job applicant or an employee who is a "qualified individual" on the basis of disability. 13 A "qualified individual" is an individual who can perform the "essential functions" of the position "with or without reasonable accommodation." 14
The ADA regulations define the term "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 15
Similarly, the Fourth Circuit has defined the term "qualified individual" as a person "able to meet all of a program's requirements in spite of his handicap." 16 To be a qualified individual with a disability, an individual must
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have the requisite skills for the position in question and must be willing and able to demonstrate these skills by coming to work on a regular basis. 17
B. "Essential Functions" Defined. "Essential functions" are job tasks that are fundamental to the employment position and are not marginal. 18 The ADA specifies two sources to determine which functions are "essential": (i) the employer's own judgment about what functions are essential as a matter of business necessity and (ii) written descriptions of or advertisements for the job. 19
There are other sources as well. The regulations identify the following additional types of evidence of essential functions: (i) the amount of time spent on the job performing the function; (ii) the consequences of not requiring the incumbent to perform the function; (iii) the terms of a collective bargaining agreement; (iv) the work experience of past incumbents in the job; and (v) the current work experience of incumbents in similar jobs. 20
The "essential functions" requirement focuses on the desired result rather than the means of accomplishment. For example, assume an individual who has limited use of one arm applies for a job lifting and carrying mail. The essential function of the job is to lift and carry mail, not the ability to use both arms to do so.
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Another example is an individual who has impaired vision or limited hand control and applies for a job that requires the use of a computer. The essential function of the job is to access, input, and retrieve information from a computer. 21 The employer must determine whether the acquisition of special equipment would be a reasonable accommodation to the employee without causing undue hardship on the employer.
C. "Disability" Defined. In response to Congress's desire to cover individuals with many types of impairments (including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder) who had been unable to bring ADA claims because they were found not to meet the ADA's definition of disability, the ADAAA and implementing regulations expanded the definition of the term "disability." 22
The ADAAA specifically provides that the "definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to the
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maximum extent permitted by the terms of this chapter." 23 In this Act, Congress indicated that "the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. . . ." 24 Thus, spending much time analyzing whether someone meets the definition of "disability" as set forth above is no longer required (or helpful).
Under the ADAAA and its implementing regulations, "disability" means (i) a physical or mental impairment that substantially limits one or more major life activities; 25 (ii) a record of such an impairment; or (iii) being regarded as having such an impairment as described in 29 C.F.R. § 1630.2(l), meaning that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both "transitory and minor." 26
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An individual may establish coverage under any one or more of the three prongs contained in the definition of disability. 27 The regulation describes the three possible definitions as the "actual disability" prong under subsection (g)(1)(i), the "record of" prong under subsection (g)(1)(ii), and the "regarded as" prong under subsection (g)(1)(iii). Of special note is the fact that where an individual is not challenging a covered entity's failure to make reasonable accommodations and does not require a reasonable accommodation, the EEOC regulations provide that it is generally unnecessary to proceed under the "actual disability" or "record of" prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the "regarded as" prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. An individual may choose, however, to proceed under the "actual disability" and/or "record of" prong regardless of whether the individual is challenging a covered entity's failure to make reasonable accommodations or requires a reasonable accommodation. 28
D. Application to Specific Conditions.
1. In General. The EEOC regulations clarify that some impairments will virtually always result in a determination of coverage under paragraphs (g)(1)(i) (the "actual disability" prong) or (g)(1)(ii) (the "record of" prong) of section 1630.2 (and will generally be found to impose a substantial limitation on a major life activity and may substantially limit additional major life activities not explicitly listed.
The specific types of impairments that the EEOC considers as "virtually always" substantially limiting major life activities 29 are:
1. Deafness. Deafness substantially limits hearing.
2. Blindness. Blindness substantially limits seeing.
3. Intellectual Disability. Intellectual disability (formerly termed mental retardation) substantially limits brain function.
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4. Missing Limbs or Wheelchair Bound. Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function.
5. Autism. Autism substantially limits brain function.
6. Cancer. Cancer substantially limits normal cell growth.
7. Cerebral Palsy. Cerebral palsy substantially limits brain function.
8. Diabetes. Diabetes substantially limits endocrine function.
9. Epilepsy. Epilepsy substantially limits neurological function.
10.Human Immunodeficiency Virus (HIV). HIV infection substantially limits immune function.
11.Multiple Sclerosis. Multiple sclerosis substantially limits neurological function.
12.Muscular Dystrophy. Muscular dystrophy substantially limits neurological function.
13.Psychiatric Disabilities. Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders is relevant for identifying these disorders and is recognized as an important reference by courts. 30
14.Other Conditions.
a. In General. Other conditions not specifically mentioned by the EEOC regulations may be considered a disability by the courts depending upon the facts and circumstances. However, in view of Congress'
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desire to expand the coverage of the Act and to broaden the definition of "disability," the current case law on these conditions will need to be reevaluated under the new statutory scheme.
b. Pregnancy. Pregnancy alone does not establish a disability, 31 but the Pregnancy Discrimination Act 32 added new language to the definitions of Title VII that prohibits discrimination "because of or on the basis of pregnancy, child birth, or related medical conditions." The Act now requires employers to treat women who are affected by pregnancy in the same way as others who, although not pregnant, are similar in their ability or inability to work.
c. Sinus Condition. An employee who could not prove that his sinus condition substantially limited a major life activity was found not to be handicapped under the ADA. 33
d. Sleep Disorders. An employee suffering from a sleep disorder was not considered a qualified individual with a disability because she failed to show that her sleep disorder substantially limited her ability to perform the major life activity of working. 34
e. Stress. Job-related stress is not a disability under the ADA. 35
f. Weight Problems. A flight attendant who exceeded an employer's weight limitations was found not to be handicapped because the
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employee was not limited in any major life activity. 36 Normal deviations in weight, height, or strength are not impairments. 37 However, an extreme deviation in weight, height, or strength, as in the case of obesity, which is defined as weighing more than 100 percent over the norm, may constitute an impairment. 38 Weight problems did not substantially limit a police dispatcher who was then employed in her field and whose employer gave no indication that it viewed her as unable to work in the law enforcement field. 39
The Eighth Circuit has ruled that the amendments to the ADA have not changed prior law regarding weight problems. The court held that obesity is not a physical impairment unless it occurs as the result of a physiological disorder or condition and it affects a major body system. 40 The Eastern District of Virginia, in Sturgill v. Norfolk S. Ry. Co., 41 reached a similar conclusion, ruling that a high Body Mass. Index ("BMI") is not a "standalone" disability under the ADA. However, the Court observed...
