Many more people can sue for disability discrimination

The number of people who can sue for disability discrimination under the Americans With Disabilities Act has greatly increased. That’s because the federal government has issued new rules that explain when someone is “disabled.” And under these rules, a lot more people qualify than in the past. Previously, when an employee brought a lawsuit under the ADA, it was very common for there to be a lengthy dispute about whether he or she was in fact disabled. However, as a result of the new rules, it will be much easier for employees to prove that they’re disabled – so more lawsuits will focus instead on whether the employer reasonably accommodated the worker.

The new rules were published by the federal Equal Employment Opportunity Commission. Here’s an explanation of the changes. To understand how they work, it’s important to know that the ADA defines a disability as an impairment that substantially limits a person with regard to a major life activity. The new rules make it easier for workers to prove that they have an impairment, and they make it easier to show that their impairment limits a major life activity.

Impairments. As for impairments, the new rules say that a worker can have an impairment even if the worker can ordinarily do something to “fix” it. For instance, bad eyesight can be an impairment even if you can easily compensate for it by wearing glasses. Similarly, diabetes is an impairment even if the diabetic controls the problem with insulin.

The rules also say that you can have an impairment even if it only happens occasionally, or if it happened in the past and might happen again in the future. For instance, epilepsy is an impairment even if a worker only rarely has seizures. A worker whose cancer is in remission might have an impairment if there’s still a chance it will recur.

With these types of impairments, the new rules say that a person is disabled if these conditions would substantially limit a major life activity when they occur. It doesn’t matter whether they are limiting a major life activity at the present time.

Major life activities. Some people have impairments that don’t interfere with most major life activities, such as sleeping or eating, but do get in the way of performing a particular job. These have been the situations that have typically led to disputes about whether the employee is actually “disabled,” as opposed to merely unable to do a specific task.

The new rules make it much easier to prove that such an employee is disabled. For one thing, the rules say that “working” is a major life activity. For another, they say that the issue is whether the employee can do the particular job at hand, not whether the employee can do a broad range of jobs within a large sector of the economy.

Separately, under the new rules, “interacting with others” is a major life activity. This could make it easier for people with certain types of mental illness or autism to qualify as disabled.

Finally, the rules make clear that many conditions should automatically be considered to be disabilities. These include multiple sclerosis, HIV/AIDS, epilepsy, diabetes and bipolar disorder.

‘Regarded’ as disabled. Under the ADA, workers don’t have to actually be disabled to sue – all they have to prove is that the employer “regarded” them as disabled. And the new rules make it much easier for workers to prove this.

Previously, in order to show that an employer regarded them as disabled, workers had to establish that the employer mistakenly believed that they had an impairment that substantially limited them in a major life activity. In practice, it was usually fairly difficult to show this in court.

Under the new rules, though, employees merely have to prove that the employer thought they couldn’t do the job in question.

For instance, suppose an employer refuses to hire someone who has a nervous tic. In the past, the applicant would have to somehow show that the employer assumed that the tic was evidence of a larger nervous system disorder that limited a major life activity such as sleeping or walking. Now, the applicant merely has to prove that because of the tic the employer didn’t think he or she could do the job. Taken together, these new rules are likely to have a major effect. Employees will find it easier to sue, and employers will want to exercise much more caution when dealing with employees who have an impairment.

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