An individual considered to have a disability is one who:
- has a physical or mental impairment which substantially limits one or more of such person's major life activities,
- has a record of such an impairment, or
- is regarded as having such an impairment
is considered to be an individual with a disability under §504 and the ADA.
The determination of whether an impairment is a disability is to be made without regard to the ameliorating effects of mitigating measures according to the ADA Amendments Act of 2008 (ADAAA).
Conditions that Constitute "Physical or Mental Impairement"
Any physiological disorder or condition, cosmetic disfigurement, or any anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine. Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.
Examples of physical and/or mental impairments include: contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction and alcoholism.
Note: Excluded from the definition of physical or mental impairment are: homosexuality, bisexuality, transsexualism, transvestism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania or pyromania; or current illegal drug use.
Definitions of "Substantially Limit" and "Major Life Activity"
Functions such as caring for one's self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working are examples of major life activities. A major life activity includes the operation of a major bodily function (e.g., cellular, neurological, reproductive and immune systems) and is not limited to those which are central or of primary importance to individuals' lives. ADAAA.
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
An impairment must substantially limit a major life activity for a physical or mental condition to rise to the level of a "disability." Factors that need to be considered include:
- the nature and severity of the impairment,
- the duration or expected duration of the impairment and
- the actual or expected permanent or long-term impact of, or resulting from, the impairment.
The term "substantially limit" was not defined in the ADAAA; however, Congress said the standard should be less than "significantly restricted." For example, an eye infection from the over wearing of contact lens that can be treated with a few days medication and the individual wearing eye glasses would not be considered a visual disability. However, if an eye infection was left untreated and resulted in permanent scarring with reduced vision that could not be corrected solely with eye glasses, a visual disability might very well be found to exist.
Definition of a "Learning Disability"
The ADA does not define specific learning disabilities, nor does Section 504 attempt to expressly define specific learning disabilities. The implementing regulations suggest that the definition for specific learning disabilities contained in the Individuals with Disabilities Education Act ("IDEA") should be followed. "Specific learning disability" is defined in the IDEA as "those [individuals] who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia." 20 U.S.C. §1401(a)(15). Attention Deficit Disorder (ADD) may or may not constitute a disability. A review of the medical documentation in each individual case is necessary.
Notes: The provisions of the IDEA apply to students between the ages of 3 to 21 who are attending pre-school, elementary and secondary schools. It does not apply to postsecondary educational institutions. Excluded from the definition of specific learning disability are individuals who have learning problems which are primarily the result of visual, hearing, or motor disabilities, or mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. 20 U.S.C. § 1401 (a)(15).
A "qualified individual with a disability" is one who, with or without reasonable modifications to the rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Students who seek accommodations from the University for a psychological or psychiatric impairment need to provide appropriate medical documentation to the Disability Resource Center (DRC). Determining whether a psychological/psychiatric disorder, e.g., schizophrenia or borderline personality, is a covered disability is generally resolved by reference to the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual (currently known as "DSM-IV"). A professional diagnosis must be made.