ADA Title II Action Guide for State and Local Governments

Who is Protected

To be protected under the ADA a person needs to meet the ADA’s definition of disability and be “qualified.” We’ll discuss the definition of disability first, and then we’ll discuss what it means to be “qualified.”

Definition of Disability

The definition of disability has three parts. A person only has to meet one of the parts to be covered.

The definition applies to a person who:

1. has a physical or mental impairment that substantially limits one or more major life activities; or

2. has a history or record of a physical or mental impairment that substantially limited one or more major life activities; or

3. is regarded as having an impairment, whether the person has the impairment or not.

Part 1 covers people who currently have a physical or mental impairment that substantially limits one or more major life activities. It does not apply to people whose impairment is unsubstantial, such as someone who is slightly nearsighted or someone who is mildly allergic to pollen.

Both A.Z. and B.Y. are protected under the first part of the definition.

The definition also applies to people, whose impairment substantially limits a major life activity but can be moderated or mitigated.

These people are protected under the first part of the definition.

Part 2 covers people who have a history or record of a physical or mental impairment that substantially limited one or more major life activities.

These people are protected under the second part of the definition.

Part 3 of the definition is a bit more complicated. It was included in the ADA to protect people who might not meet either of the first two parts of the definition, but who are subject to adverse decisions by covered entities based upon unfounded concerns, fears, or prejudices. A person is protected under this third part when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment.

These people are protected under the third part of the definition.

Broad Coverage

The ADA Amendments Act of 2008 states that the definition of disability should be construed in favor of broad coverage of people to the maximum extent permitted by the law and generally should not require extensive analysis. In the past, there was some debate over what activities were considered "major life activities" for ADA purposes. One of the most contentious issues was whether someone with a medical condition that only affected internal functions would be covered. Conditions such as gastrointestinal disorders, diabetes, cancer and heart disease often only affect bodily functions without producing any outward limitations such as difficulty walking, talking or performing manual task. The ADA Amendments Act cleared up the confusion by stating that bodily functions are indeed major life activities. The law lists functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Congress wanted the focus to be on ensuring that people have an equal opportunity to participate and are not discriminated against, rather than on whether someone meets a narrow definition.

Exclusions

The following are excluded from the definition of disability: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.

Check your state law, many have anti-discrimination laws similar to the ADA and they may protect people with some of of these conditions.

Illegal Use of Drugs

A public entity may withhold services or benefits from a person who is currently engaging in the illegal use of drugs. "Current use" is the illegal use of controlled substances that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. A public entity should review carefully all the facts surrounding its belief that an individual is currently taking illegal drugs to ensure that its belief is a reasonable one. That some states have adopted medical and/or recreational marijuana use does not affect the ADA. Under federal law, cannabis is treated like every other controlled substance, such as cocaine and heroin and is illegal. It’s important to note that a person with a history of drug use who has been successfully rehabilitated or someone who is participating in a drug rehabilitation program and currently not engaging in the illegal use of drugs is protected. Also health care and drug rehabilitation services cannot be denied to a person on the basis of that person's current illegal use of drugs if the person is otherwise qualified to receive such service.

What Does It Mean to be Qualified?

Protections under the ADA are afforded to qualified individuals with disabilities. The definition of “qualified” has two forms.

1. For determining participation in programs, services and activities, a person is qualified if the person meets the essential eligibility requirements for the receipt of services or participation in programs.

2. For purposes of employment, a person is qualified if the person is able to perform the essential functions of the job with or without reasonable accommodation.

The "essential eligibility requirements" for participation in many activities is minimal. Most public entities provide information about their programs, activities, and services upon request. In such situations, the only "eligibility requirement" for receipt of such information would be to request it. Under other circumstances, the "essential eligibility requirements" may be more specific.

Direct Threat

A person who poses a direct threat to the health or safety of others is not "qualified." A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated or reduced to an acceptable level by modification of policies, practices, or procedures, or by the auxiliary aids or services. The determination of direct threat must be based on objective factual evidence and an individualized assessment of the person. Factors include: 1) The nature, duration, and severity of the risk; 2) The probability that the potential injury will actually occur; and, 3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.