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12.2 ADA—Physical or Mental Impairment

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12.2 ADA—PHYSICAL OR MENTAL IMPAIRMENT

As you have been instructed, the first element of the ADA claim that the plaintiff must prove is that the plaintiff has a recognized disability under the ADA. A "disability" under the ADA is [[a physical or mental impairment] [a record of physical or mental impairment] [being regarded as having a physical or mental impairment]] that substantially limits one or more of the major life activities of such individual.

The terms disability and physical or mental impairment include [[(1) any 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) any mental or psychological disorder such as] [mental retardation,] [organic brain syndrome,] [emotional or mental illnesses,] [and] [learning disabilities]].

Major life activities are the normal activities of living which a non-disabledperson can do with little or no difficulty, such as caring for oneself, performing manual tasks, walking, sleeping, seeing, hearing, speaking, breathing, learning, engaging in sexual relations, reproducing, interacting with others, and working.

A limitation is substantial if the disabled person is unable to perform the activity or is significantly restricted in doing so.
Factors to consider in deciding whether a major life activity is substantially limited include:

(1) the nature and severity of the impairment;

(2) the duration or expected duration of the impairment; and

(3) the permanent or long-term impact of the impairment. 

                                                                   Comment

The Supreme Court, in Toyota Motor Manufacturing, Ky., Inc. v. Williams, 534 U.S. 184 (2002) has addressed and defined important terms in the ADA lexicon. The Court held that the word "substantially" in the phrase "substantially limits" ". . . clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities." Id. at 196–97. The word "major" as in the phrase "major life activities" means "important" and "major life activities" are those ". . . that are of central importance to daily life . . .." Id. at 197. The Supreme Court then articulated its holding:

We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term. See 29 C.F.R. §§ 1630.2(j)(2)(ii)–(iii) (2001).

It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those "claiming the Act’s protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial." Albertson’s, Inc. v. Kirkingburg, supra [527 U.S. 555 ( 1999)], at 567 (holding that monocular vision is not invariably a disability, but must be analyzed on an individual basis, taking into account the individual’s ability to compensate for the impairment). That the Act defines "disability" "with respect to an individual," 42 U.S.C. § 12102(2), makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner. See Sutton v. United Air Lines, Inc., supra, [527 U.S. 471 (1999)] at 483; Albertson’s, Inc. v. Kirkingburg, supra, at 566 ; cf. Bragdon v. Abbott, 524 U.S. at 641–642 (relying on unchallenged testimony that the respondent’s HIV infection controlled her decision not to have a child, and declining to consider whether HIV infection is a per se disability under the ADA); 29 C.F.R. pt. 1630, App. § 1630.2(j) (2001) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. ("The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis").

Id. at 197–98.

Although the Supreme Court has questioned the EEOC’s authority to promulgate regulations further defining "disability" under §§ 12101–12102 (See Sutton v. United Air Lines, Inc., 527 U.S. 471, 479 (1999), the EEOC defines a "major life activity" to be caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i)(1999). The Ninth Circuit recognizes as major life activities sleeping, engaging in sexual relations, and interacting with others, (McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir.1999)), as well as eating (Fraser v. Goodale, 342 F.3d 1032, 1038–41 (9th Cir.2003)).

In Fraser, the court began its analysis by scrutinizing ". . . the nature, severity, duration, and impact of the impairment (29 C.F.R. § 1630(j)(2)(i)-(iii)) in holding, as a matter of first impression, that eating is a major life activity. At the same time, however, the court noted that although a "certain broad activity is of central importance to most people’s daily lives . . ." it is still important to analyze whether in a particular case the impairment is sufficiently limiting to be substantial. Id. at 1039–40. In Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1061 (9th Cir.2005), the Ninth Circuit, in distinguishing Fraser, recognized that "thinking" is a major life activity.

In light of Toyota Motor Mfg., Ky., Inc., Albertson’s, Inc. and Sutton, the Ninth Circuit has held "that for a monocular individual to show that his impairment is a substantial limitation on the major life activity of seeing, the impairment must prevent or severely restrict use of his eyesight compared with how unimpaired individuals normally use their eyesight in daily life." Equal Employment Opportunity Commission v. United Parcel Service, Inc., 326 F.3d 794, 796–97 (9th Cir.2002).

The regulations consider work a major life activity, though this activity must be carefully analyzed to determine whether the plaintiff’s ability to work is substantially limited (see Instruction 12.4 (ADA—Work as a Major Life Activity)).

In an appropriate case, the trial court must instruct the jury that conduct resulting from a disability is part of the disability and is not a separate basis for termination. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir.2007) (in a case brought under the FMLA and the Washington Law Against Discrimination by a plaintiff who was terminated after she engaged in a profanity-laced outburst allegedly caused by her bipolar disorder, the Ninth Circuit held that it was error to refuse an instruction stating that conduct resulting from a disability is part of the disability and is not a separate basis for termination, citing the ADA case of Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.2001). See, as to the defenses of business necessity and direct threat, respectively,Instruction 12.11 (ADA—Defenses—Business Necessity) and Instruction 12.12 (ADA—Defenses—Direct Threat).

Approved 8/2007