Definition of Disability

Definition of Disability (by law)

To be protected by the ADA, a person must meet the definition of the 

term "qualified individual with a disability" as defined by the 

Act and implementing regulations.2  This Compliance Manual 

section discusses the ADA definition of the term "disability."3  

The definition of the term "qualified individual with a disability" 

and the appropriate analysis for determining whether a person 

meets that definition will be discussed in a separate forthcoming 

Compliance Manual section.

          A major part of the inquiry in an ADA charge often will 

be the determination of whether the charging party is protected 

by the Act.  This determination frequently requires more 

extensive analysis than does the determination of whether a 

person is protected by other nondiscrimination statutes.  For 

example, it is generally clear whether a person is of a 

particular race, national origin, age, or sex that is alleged to 

be the basis of discrimination.  By contrast, it often is less 

clear whether a person's physical or mental condition constitutes 

an impairment of sufficient degree to establish that the person 

meets the statutory definition of an individual with a 

"disability."

          The definition of "disability" under the ADA reflects 

the intent of Congress to prohibit the specific forms of 

discrimination that persons with disabilities face.  While 

individuals with disabilities may experience the types of 

discrimination that confront other groups, they also may 

encounter unique forms of discrimination because of the nature of 

their disabilities and the effect that their present, past, or 

perceived conditions have on other persons.  The purpose of the 

ADA is to eliminate discrimination that confronts individuals 

with disabilities.

          Since the definition of the term "disability" under the 

ADA is tailored to the purpose of eliminating discrimination 

prohibited by the ADA, it may differ from the definition of 

"disability" in other laws drafted for other purposes.  For 

example, the definition of a "disabled veteran" is not the same 

as the definition of an individual with a disability under the 

ADA.4  Similarly, an individual might be eligible for disability 

retirement but not be an individual with a disability under the 

ADA.  Conversely, a person who meets the ADA definition of 

"disability" might not meet the requirements for disability 

retirement.

          (b)     Statutory Definition  --  With respect to an                

individual, the term "disability" means

               (A)     a physical or mental impairment that     

substantially limits one or more of the major life activities of 

such individual;

               (B)     a record of such an impairment; or

               (C)     being regarded as having such an 

impairment.

42 U.S.C. § 12102(2); see also 29 C.F.R. § 1630.2(g).  

A person must meet the requirements of at least one of these 

three criteria to be an individual with a disability under the 

Act.

          The first part of the definition covers persons who 

actually have physical or mental impairments that substantially 

limit one or more major life activities.  The focus under the 

first part is on the individual, to determine if (s)he has a 

substantially limiting impairment.  To fall under the first part 

of the definition, a person must establish three elements:

          (1) that (s)he has a physical or mental impairment

          (2) that substantially limits

          (3) one or more major life activities.

          The second and third parts of the definition cover 

persons who may not have an impairment that substantially limits 

a major life activity but who have a history of, or have been 

misclassified as having, such a substantially limiting 

impairment, or who are perceived as having such a substantially 

limiting impairment.  The focus under the second and third parts 

is on the reactions of other persons to a history of an 

impairment or to a perceived impairment.  A history or perception 

of an impairment that substantially limits a major life activity 

is a "disability."  These parts of the definition reflect a 

recognition by Congress that stereotyped assumptions about what 

constitutes a disability and unfounded concerns about the 

limitations of individuals with disabilities form major 

discriminatory barriers, not only to those persons presently 

disabled, but also to those persons either previously disabled, 

misclassified as previously disabled, or mistakenly perceived to 

be disabled.  To combat the effects of these prevalent 

misperceptions, the definition of an individual with a disability 

precludes discrimination against persons who are treated as if 

they have a substantially limiting impairment, even if in fact 

they have no such current incapacity.

          (c)     Summary -- To determine whether a charging 

party is protected by the ADA, the EEOC 

investigator initially should determine why the charging party 

believes that the respondent has discriminated against him/her on 

the basis of disability.  The charging party's response usually 

will provide the investigator with a starting point for analysis 

by identifying the type of condition at issue.  For example, if 

the charging party replies that the respondent refused to hire 

him/her because it learned that the charging party had received 

psychiatric treatment, then the investigator will know to 

investigate whether the charging party has, has a record of, or 

is regarded as having a psychiatric disability.  (Of course, 

further investigation may reveal other disabilities that may 

constitute the reason for the challenged employment action.)

          The investigator then should determine whether the 

charging party meets the first part of the definition of 

"disability"; that is, the investigator should determine whether 

the charging party actually has a physical or mental impairment 

that substantially limits a major life activity.  In that regard, 

the investigator should determine whether the charging party's 

condition is an impairment.  See § 902.2, infra.  If the 

condition is an impairment, then the investigator should 

determine whether the charging party's impairment substantially 

limits a major life activity other than working.  See § 

902.4(c)(1), infra.  If the impairment does not, then the 

investigator should determine whether the charging party is 

substantially limited in the ability to work.  See § 

902.4(c)(2), infra.

          If the charging party does not meet the first part of 

the definition of "disability," or if the investigator after 

attempting an analysis is unsure whether the charging party meets 

the first part, then the investigator should determine whether 

the charging party meets the second or third part of the 

definition.  See §§ 902.7, .8 infra.  With respect to 

the second part, the investigator should determine whether the 

charging party has a history of, see § 902.7(b), infra, or 

has been misclassified as having, see § 902.7(c), infra, an 

impairment that substantially limited a major life activity.  

With respect to the third part, the investigator should determine 

whether the charging party is regarded as having an impairment 

that substantially limits a major life activity.  In that regard, 

the investigator should determine whether the charging party (1) 

has an impairment that does not substantially limit a major life 

activity but that is regarded as being substantially limiting, 

see § 902.8(c), infra, (2) has an impairment that is 

substantially limiting only as a result of the attitudes of 

others, see § 902.8(d), infra, or (3) has no impairment but 

is regarded as having a substantially limiting impairment, see 

§ 902.8(e), infra.

902.2     Impairment

          (a)     General  --  The person claiming to be an 

individual with a disability as defined by the 

first part of the definition must have an actual impairment.  If 

the person does not have an impairment, (s)he does not meet the 

requirements of the first part of the definition of disability.  

Under the second and third parts of the definition, the person 

must have a record of a substantially limiting impairment or be 

regarded as having a substantially limiting impairment.5

          A person has a disability only if his/her limitations 

are, were, or are regarded as being the result of an impairment.  

It is essential, therefore, to distinguish between conditions 

that are impairments and those that are not impairments.  Not 

everything that restricts a person's major life activities is an 

impairment.  For example, a person may be having financial 

problems that significantly restrict what that person does in 

life.  Financial problems or other economic disadvantages, 

however, are not impairments under the ADA.  Accordingly, the 

person in that situation does not have a "disability" as that 

term is defined by the ADA.  On the other hand, an individual may 

be unable to cope with everyday stress because (s)he has bipolar 

disorder.  Bipolar disorder is an impairment.  In that situation, 

the analysis proceeds to whether the individual's impairment 

substantially limits a major life activity.

          (b)     Regulatory Definition  --  A physical or mental                

impairment means

               (1) [a]ny physiological disorder, or condition, 

cosmetic disfigurement, or anatomical loss affecting one or more 

of the following body systems:  neurological, musculoskeletal, 

special sense organs, respiratory (including speech organs), 

cardiovascular, reproductive, digestive, genito-urinary, hemic 

and lymphatic, skin, and endocrine; or

               (2) [a]ny mental or psychological disorder, such 

as mental retardation, organic brain syndrome, emotional or 

mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h); see also S. Rep. No. 116, 101st 

Cong., 1st Sess. 22 (1989) [hereinafter Senate Report]; H.R. Rep. 

No. 485 pt. 2, 101st Cong., 2d Sess. 51 (1990) [hereinafter House 

Education and Labor Report]; H.R. Rep. No. 485 pt. 3, 101st 

Cong., 2d Sess. 28 (1990) [hereinafter House Judiciary Report].

          This regulatory definition does not set forth an 

exclusive list of specific impairments covered by the ADA.  

Instead, the definition describes the type of condition that 

constitutes an impairment.

          The first step in investigating whether a charging 

party has a disability is investigating whether (s)he has an 

impairment, has a record of an impairment, or is regarded as 

having an impairment.  In many cases, it is obvious that a 

condition is an impairment.  In other cases, however, it is not 

obvious.  When it is unclear whether a charging party has an 

impairment, the investigator should ask the charging party for 

medical documentation that describes his/her condition.  Medical 

documentation that describes the charging party's condition or 

that contains a diagnosis of the condition will help to determine 

if the charging party has an impairment.6  In addition, the 

investigator should ask the respondent to provide copies of 

relevant medical documentation concerning the charging party's 

condition that the respondent has in his/her possession.  Such 

documentation should include the results of any medical 

examination conducted or ordered by the respondent as well as 

copies of medical documentation that the charging party provided 

to the respondent.  If the investigator requests the information 

directly from a third party, rather than from the charging party 

or the respondent, then the investigator first should obtain a 

signed medical release from the charging party and should submit 

the release with the request.  Other information, such as the 

charging party's description of his/her condition or statements 

from the charging party's friends, family, or co-workers, also 

may be relevant to determining whether the charging party has an 

impairment.

          (c)     Conditions That Are Not Impairments

               (1)     Statutory and Legislative History 

Exceptions                     

              --    The statute and the legislative history

specifically state that certain conditions are not impairments 

under the ADA.7  The term "impairment" does not include 

homosexuality and bisexuality.  42 U.S.C. § 12211(a); see 

also 29 C.F.R. § 1630.3(e); H.R. Rep. No. 596, 101st Cong., 

2d Sess. 88 (1990) [hereinafter Conference Report]; House 

Education and Labor Report at 142; House Judiciary Report at 75.  

Further, environmental, cultural, and economic disadvantages such 

as a prison record or a lack of education are not impairments.  

Senate Report at 22; House Education and Labor Report at 51-52; 

House Judiciary Report at 28.  In addition, age, by itself, is 

not an impairment.  See Senate Report at 22; House Education and 

Labor Report at 52; House Judiciary Report at 28.  A person who 

has a medical condition (such as hearing loss, osteoporosis8, or 

arthritis) often associated with age has an impairment on the 

basis of the medical condition.  A person does not have an 

impairment, however, simply because (s)he is advanced in years.  

29 C.F.R. pt. 1630 app. § 1630.2(h).

               Example 1  --  CP has been unemployed for two 

years.  Although she has actively sought work, CP has not been 

able to find a job.  CP asserts that employers will not hire her 

because she is a convicted felon who served three years in prison 

for armed robbery.  CP argues that her prison record is a 

disability because it prevents her from getting a job.  CP, 

however, does not have a disability because she does not have a 

physical or mental impairment as defined by the ADA.  A prison 

record is not an impairment for ADA purposes.

               Example 2  --  CP applies for a job as a cashier 

at his neighborhood supermarket.  The store manager speaks with 

CP briefly and then asks CP to fill out a written job application 

form.  CP does not complete the form because he cannot read it.  

CP, who has the equivalent of a second-grade education, was never 

taught to read.  CP does not have a physical or mental impairment 

as defined by the ADA.  A lack of education is not an impairment 

for ADA purposes.

               Example 3  --  Same as Example 2, above, except CP 

cannot read because he has a severe form of dyslexia.  CP has an 

impairment as defined by the ADA.  Dyslexia, a learning 

disability, is an impairment for ADA purposes.

               Example 4  --  CP, who is sixty-three, has 

osteoporosis.  The osteoporosis, a reduction in bone quantity, is 

an impairment as defined by the ADA.  CP's age, sixty-three, is 

not a physical or mental impairment as defined by the ADA.

               (2)     Physical Characteristics  --  Simple 

physical characteristics are not impairments under the

ADA.  For example, a person cannot claim to be impaired because 

of blue eyes or black hair.  Senate Report at 22; House Education 

and Labor Report at 51; House Judiciary Report at 28.  Similarly, 

a person does not have an impairment simply because (s)he is 

left-handed.  de la Torres v. Bolger, 781 F.2d 1134, 39 EPD Par. 

35,883, 1 AD Cas. (BNA) 852 (5th Cir. 1986).9

          Further, a characteristic predisposition to illness or 

disease is not an impairment.  29 C.F.R. pt. 1630 app. § 

1630.2(h).  A person may be predisposed to developing an illness 

or a disease because of factors such as environmental, economic, 

cultural, or social conditions.  This predisposition does not 

amount to an impairment.

               (3)     Pregnancy  --  Because pregnancy is not 

the result of a physiological disorder, it is not an impairment.  

29 C.F.R. pt. 1630 app. § 1630.2(h); see also Byerly v. Herr 

Foods, Inc., 61 EPD Par. 42,226, 2 AD Cas. (BNA) 666 (E.D. Pa. 

1993).  Complications resulting from pregnancy, however, are 

impairments.10

               Example 1  --  CP is in the third trimester of her 

pregnancy.  Her pregnancy has proceeded well, and she has 

developed no complications.  CP does not have an impairment.  

Pregnancy, by itself, is not an impairment.

               Example 2  --  Same as Example 1, above, except CP 

has developed hypertension.  CP has an impairment, hypertension.  

(Remember that the mere presence of an impairment does not 

automatically mean that CP has a disability.  Whether the 

hypertension rises to the level of a disability will turn on 

whether the impairment substantially limits, or is regarded as 

substantially limiting, a major life activity.)

               (4)     Common Personality Traits  --  Like 

physical characteristics, common personality traits also are not 

impairments.  In Daley v. Koch, 892 F.2d 212, 214, 52 EPD Par. 

39,534 at 60,471, 1 AD Cas. (BNA) 1549, 1550 (2d Cir. 1989), a 

psychological profile of an applicant for a police officer 

position determined that the applicant "showed 'poor judgment, 

irresponsible behavior and poor impulse control'" but did not 

have "any particular psychological disease or disorder."  The 

court ruled that the applicant's personality traits did not 

constitute an impairment.  892 F.2d at 215, 52 EPD at 60,473, 1 

AD Cas. at 1551.

               Example 1  --  CP is a lawyer who is impatient 

with her co-workers and her boss.  She often loses her temper, 

frequently shouts at her subordinates, and publicly questions her 

boss's directions.  Her colleagues think that she is rude and 

arrogant, and they find it difficult to get along with her.  CP 

does not have an impairment.  Personality traits, such as 

impatience, a quick temper, and arrogance, in and of themselves 

are not impairments.

               Example 2  --  Same as Example 1, above, except 

CP's behavior results from bipolar disorder.  CP has an 

impairment, bipolar disorder.11

               Example 3  --  CP is an account manager who is in 

charge of developing a major advertising campaign for his firm's 

biggest client.  Although he used to be easygoing and relaxed in 

the office, CP has become very irritable at work.  He has twice 

lost his temper with his assistant, and he recently engaged in a 

shouting match with one of his superiors.  CP has consulted a 

psychiatrist, who diagnosed a recurrence of the post-traumatic 

stress disorder for which CP was treated several years ago.  CP 

has an impairment.  CP's post-traumatic stress disorder, a mental 

disorder, is a mental impairment.12

               (5)     Normal Deviations in Height, Weight, or 

Strength  --  Similarly, normal deviations in height, weight, or 

strength that are not the result of a physiological disorder are 

not impairments.13  29 C.F.R. pt. 1630 app. § 1630.2(h); see 

also  Jasany v. United States Postal Service, 755 F.2d 1244, 

1249, 36 EPD Par. 35,070 at 36,835, 1 AD Cas. (BNA) 706, 709 (6th 

Cir. 1985).  At extremes, however, such deviations may constitute 

impairments.  Further, some individuals may have underlying 

physical disorders that affect their height, weight, or strength.

                    (i)     For example, a four foot, ten inch 

tall woman who was denied employment as an automotive production 

worker because the employer thought she was too small to do the 

work does not have an impairment.  See American Motors Corp. v. 

Wisconsin Labor and Industry Review Commission, 119 Wis. 2d 706, 

350 N.W.2d 120, 36 EPD Par. 34,936, 1 AD Cas. (BNA) 611 (1984) 

(interpreting state law).  The woman's height was below the norm, 

but her small stature was not so extreme as to constitute an 

impairment and was not the result of a defect, disorder, or other 

physical abnormality.  On the other hand, a four feet, five 

inches tall man with achondroplastic dwarfism14 does have an 

impairment.  See Dexler v. Tisch, 660 F. Supp. 1418, 1425, 43 EPD 

Par. 37,280 at 48,207, 1 AD Cas. (BNA) 1086, 1092 (D. Conn. 

1987).  The man's stature was the result of an underlying 

disorder, achondroplastic dwarfism, which is an impairment.

                    (ii)     Being overweight, in and of itself,   

generally is not an impairment.  See 29 C.F.R. pt. 1630 app. 

§ 1630.2(h) (noting that weight that is "within 'normal' 

range and not the result of a physiological disorder" is not an 

impairment); see also id. § 1630.2(j) (noting that, "except 

in rare circumstances, obesity is not considered a disabling 

impairment").  Thus, for example, a flight attendant who, because 

of avid body building (which resulted in a low percentage of body 

fat and a high percentage of muscle), exceeds the airline's 

weight guidelines does not have an impairment.   See Tudyman v. 

United Airlines, 608 F. Supp. 739, 746, 38 EPD Par. 35,674 at 

40,015, 1 AD Cas. (BNA) 664, 669 (C.D. Cal. 1984).  Similarly, a 

mildly overweight flight attendant who has not been clinically 

diagnosed as having any medical anomaly does not have an 

impairment.  Underwood v. Trans World Airlines, 710 F. Supp. 78, 

83-84, 51 EPD Par. 39,297 at 59,106-07 (S.D.N.Y. 1989) 

(plaintiff's state action preempted by federal law where 

plaintiff failed to establish that being mildly overweight 

brought her within class protected by state human rights law with 

broad definition of disability).

          On the other hand, severe obesity,15 which has been 

defined as body weight more than 100% over the norm, see The 

Merck Manual of Diagnosis and Therapy 981 (Robert Berkow ed., 

16th ed. 1992), is clearly an impairment.  See Cook v. Rhode 

Island Dep't of Mental Health, Retardation and Hosp., 10 F.3d 17, 

63 EPD Par. 42,673, 2 AD Cas. (BNA) 1476 (1st Cir. 1993).  In 

addition, a person with obesity may have an underlying or 

resultant physiological disorder, such as hypertension or a 

thyroid disorder.  A physiological disorder is an impairment.  

See 29 C.F.R. § 1630.2(h).16

               (6)     Persons with One of These Conditions and 

an Impairment   --   A person who has one or more

of these characteristics or traits also may have other conditions 

that are physical or mental impairments.  See Senate Report at 

22; House Education and Labor Report at 52; House Judiciary 

Report at 28.  Thus, a left-handed individual who has a heart 

condition has an impairment.  Although left-handedness is not an 

impairment, heart disease is an impairment.

          (d)     Contagion  --  A contagious disease is an 

impairment.17  The contagious nature of the disease

does not, by itself, remove that condition from the protection of 

the ADA.  In School Bd. of Nassau County v. Arline, 480 U.S. 273, 

42 EPD Par. 36,791, 1 AD Cas. (BNA) 1026 (1987), the United 

States Supreme Court considered the case of an elementary school 

teacher who had been discharged because she had experienced a 

recurrence of tuberculosis.  The Supreme Court found that the 

tuberculosis, which had affected the teacher's respiratory 

system, constituted an impairment.  480 U.S. at 281, 42 EPD at 

45,635, 1 AD Cas. at 1029.  In so doing, the Court rejected the 

argument that the contagious effects of a condition (i.e., the 

effects of the condition on others) could be distinguished from 

the effects of the condition on the carrier.  480 U.S. at 282, 42 

EPD at 45,636, 1 AD Cas. at 1029-30.

          The legislative history to the ADA expressly provides 

that infection with the Human Immunodeficiency Virus (HIV) is an 

impairment under the Act.  Senate Report at 22; House Education 

and Labor Report at 51; House Judiciary Report at 28.  Thus, for 

the purposes of the ADA, an individual with HIV infection has an 

impairment.18

          (e)     Voluntariness  --  Voluntariness is irrelevant 

when determining whether a condition constitutes an impairment.  

For example, an individual who develops lung cancer as a result 

of smoking has an impairment, notwithstanding the fact that some 

apparently volitional act of the individual may have caused the 

impairment.  The cause of a condition has no effect on whether 

that condition is an impairment.  See House Judiciary Report at 

29 (noting that "[t]he cause of a disability is always irrelevant 

to the determination of disability"); see also Cook v. Rhode 

Island Dep't of Mental Health, Retardation and Hosp., 10 F.3d 17, 

63 EPD Par. 42,673, 2 AD Cas. (BNA) 1476 (1st Cir. 1993).  

Further, the voluntary use of a prosthetic device or other 

mitigating measure to correct or to lessen the effects of a 

condition also has no bearing on whether that condition is an 

impairment.  See § 902.5, infra.

902.3     Major Life Activities

          (a)     General  --  For an impairment to rise to the 

level of a disability, it must substantially limit, have 

previously substantially limited, or be perceived as 

substantially limiting, one or more of a person's major life 

activities.  There has been little controversy about what 

constitutes a major life activity.  In most cases, courts have 

simply stated that an impaired activity is a major life activity.  

In general, major life activities "are those basic activities 

that the average person in the general population can perform 

with little or no difficulty."  29 C.F.R. pt. 1630 app. § 

1630.2(i).

          (b)     Regulatory Definition  --  Commission 

regulations define the term "major life activities" to mean 

"functions such as caring for oneself, performing manual tasks, 

walking, seeing, hearing, speaking, breathing, learning, and 

working."  29 C.F.R. § 1630.2(i); see also Senate Report at 

22; House Education and Labor Report at 52; House Judiciary 

Report at 28.

          This list is not an exhaustive list of all major life 

activities.  Instead, it is representative of the types of 

activities that are major life activities.  Specific activities 

that are similar to the listed activities in terms of their 

impact on an individual's functioning, as compared to the average 

person, also may be major life activities.  Thus, as the 

interpretive appendix to the regulations notes, "other major life 

activities include, but are not limited to, sitting, standing, 

lifting, [and] reaching."  29 C.F.R. pt. 1630 app. § 

1630.2(i).  Mental and emotional processes such as thinking, 

concentrating, and interacting with others are other examples of 

major life activities.19

          (c)     Judicial Interpretations  --  Courts                

interpreting the Rehabilitation Act of 1973 also have found that 

other activities constitute major life activities.  Such major 

life activities include sitting and standing, Oesterling v. 

Walters, 760 F.2d 859, 861, 36 EPD Par. 35,201 at 37,485, 1 AD 

Cas. (BNA) 722, 723 (8th Cir. 1985); and reading, Pridemore v. 

Rural Legal Aid Society, 625 F. Supp. 1180, 1183-84, 40 EPD Par. 

36,184 at 42,659, 2 AD Cas. (B