Monday, June 5, 2017

Is That a Disability? - JDSUPRA

by Laura Bartlow and Judith Langevin 
Originally published: June 2, 2017
Publisher: JDSupra.com 

We recently wrote about the $3.3 million verdict in a disability discrimination case brought by an employee who is allergic to certain scents and chemicals.  For some of our readers, it came as a surprise that a scent allergy is a protected disability that must be accommodated.  Federal and state laws that prohibit disability discrimination and require reasonable accommodation define disability quite broadly, and there are other conditions and impairments that employers may not realize are covered.

The basics.  The ADA, as amended by the ADA Amendments Act of 2008, protects individuals who have a “physical or mental impairment that substantially limits one or more major life activities,” such as seeing, hearing, learning, reading, concentrating, or thinking or a major bodily function such as the neurological, endocrine, or digestive system. The ADA also protects individuals with a record of such an impairment or who are regarded as having such an impairment. “Impairment” isn’t defined in the law, but the EEOC’s regulations define “impairment” in some detail. The EEOC’s interpretive guidance distinguishes between conditions that are impairments and those that are “characteristics,” such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range.  Those characteristics are not covered by the law unless they are the result of a physiological disorder.  The EEOC offers several general resources on disability discrimination that clarify both the nature of covered conditions and the extent of employers’ obligations under the law.