Continuation of Today's Class
Today in class we were discussing how the ADA does not define an individual as "disabled" if he or she uses corrective measures or compensatory strategies to function as the average person does in regards to major life activities. In the cases where the individual may be facing physical challenges that the average person does not face, but compensates in a way that makes them able to live almost identically to the average non-disabled person, I feel that this rule is justified. For example, in the Sutton v. United Airlines case, the women had 20/20 vision with glasses and lived "normal" lives. On the other hand, cases such as the ones we discussed in class where individuals are ruled as not having a disbility because they can perform most major life activities even though they are limited in a variety of other tasks, I feel that the court should be more inclined to rule that the individual is disabled. For example, in class Professor Prenkert discussed a case where the individual had severe arthritis and other bone problems and was ruled not disabled because they could do such things as walking. For an individual like this, who may be able to perform central tasks but is severely limited in many other life activities, I feel that it is unfair to say that they are not disabled and put them in a position where one party (the court) is saying "you're too capable to be disabled" and another (their employer) is saying "you're too incapable to do this job." Does anyone agree/disagree? How do you think the court should decide if a person is disabled "enough"? If a person can perform central functions such as walking, do you think it's fair for the court to say they're not disabled, even if they are limited in performing many other tasks?
posted by Sara at
9:26 PM
2 Comments:
I agree with Sarah's first point in that impaired persons who find ways to live "normal lives" should not be considered "disabled." I mean, how would you accommodate the individual? Surely Congress didn't intend for the employer to pay for things like glasses, psychotropic drugs and insulin meters. The rebuttal to this claim, however, is that this leaves the door wide open for employers to "directly" discriminate, or discriminate because of the impairment's existence. For instance, the employer would be able to deny employment to anybody with corrected vision or diabetes simply because of his/her stereotypic assumptions. The applicant wouldn't have any recourse because he/she is not "disabled."
Although I've always wondered whether any discriminatory policy based on disability has led to an adverse impact claim under Title VII. Anyway, I digress.
I think it should be clarified that the employee only has to be substantially limited in one major life activity to qualify (the employee may argue more than one). You just have to argue the "correct" (most convincing) MLA(s). If the employee can prove that he is substantially limited in a major life activity, then he still have to prove he's qualified (i.e. able to perform the "essential functions" of the job with or without accommodation). I agree with Sarah in that this really puts disabled employees in a bind.
In a comment to the last post, I mentioned an example of this concerning the MLA of "getting along with others." Mentally disabled persons sometimes can prove they're substantially limited in this MLA (taking into account psychotropic mediations b/c of Sutton), but are still denied the job because "getting along with others" is an essential job function. The doesn't really promote the kind of employment equality the ADA was designed for.
I think that disability should be defined to a certain extent by the job. I agree with Sara and Justin that it is not fair for the employee to get caught in the middle. I guess I'm just thinking of an example where a hypothetical person is working in a factory and gets carpel tunnel or arthritis or something similar from years of job related movements. Imagine that this person lives in a small town, that they do not have a high level of education, and that other jobs in this town are few and far between. It seems ridiculous to tell them that they are not disabled because they can still walk, and see, and perform other MLA if they can no longer perform the major activity of their job. This distinction by the courts is likely to put some people in a bind they cannot easily get out of - unable to keep their current job but unable to get another.
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