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The ADA and RA in Postsecondary Education and Employment

By: Patricia H. Latham

Who is covered and who is not?

Q. When is an individual with a learning disability a person with a disability under the Americans With Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 (RA)?

A. The answer is that a person with a learning disability is a person with a disability when that person meets the legal standard under those laws.

Q. What is the legal standard?

A. Generally, the standard is that the person must have an impairment that substantially limits a major life activity, such as learning. The fact that a person has a learning disability does not necessarily mean that he or she has a disability under the ADA or RA. Having discrepant abilities or a discrepancy between one's own ability and achievement does not necessarily mean that a person meets the legal standard for disability under these laws.

Q. Is a learning disability an impairment?

A. Yes.

Q. Are all impairments disabilities under the ADA and RA?

A. No. In order to be a disability, the impairment must substantially limit a major life activity.

In Powell v. National Board of Medical Examiners, 364 F.3d 79 (2d Cir. 2004), the court rejected the argument that a doctor's diagnosis of an impairment, such as ADHD, would establish entitlement to disability status and entitlement to accommodation under the ADA.

Q. What does "substantial" mean?

A. Substantial means a considerable or high degree of limitation. Some individuals with ADHD might have some limitation, but not have substantial limitation, and not be individuals with disabilities under the ADA/RA. A person with ADHD who achieves well above average scores on tests, such as the medical licensing test, without any accommodations, is not substantially limited in learning compared to average people and so is not a person with a disability. Wong v. Regents of the University of California (9th Cir. 2004). See also Gonzales v. National Board of Medical Examiners, 225 F 3D 620 (6th Cir. 2000).

Q. How do you measure substantial limitation?

A. Performance is compared to the performance of an average person in the general population and is measured taking into account the positive and negative effects of medications and compensatory strategies used by the person who has an impairment. So, what counts is the actual functioning of the person, not what the functioning would be or could be, for example, without the compensatory strategies. Sutton v. United Airlines, 527 U.S. 1031 (1999)

Q. What are major life activities?

A. Major life activity means an important, broad life activity. Certain activities are clearly major, including learning and working. In one case reading was found to be a major life activity. Bartlett v. New York State Bd of Law Examiners, 2001 WL 930792 (S.D.N.Y. Aug. 15, 2001).

To be substantially limited in working a person must be excluded from a broad range of jobs, not from just one job or a narrow group of jobs.

To be substantially limited in learning, one must be substantially limited in broad areas of learning, not just in one subject, such as physics, or one task, such as taking standardized tests. McGuinness v. University of New Mexico School of Medicine, 170 F. 3d 974 (10th Cir. 1998).

The impairment must prevent or severely restrict the individual "from doing activities that are of central importance to most people's daily lives." Toyota v. Williams, 534 U.S. 184 (2002).

Q. Do you have to be qualified for the job or program to be covered by the ADA?

A. In general, yes. For example, a person with a disability can be dismissed from a program or job if he or she is not qualified, with or without a reasonable accommodation.

Also, a person with a disability who is not qualified would not be entitled to an accommodation.

Q. If you are accepted to a program or hired to perform a job, doesn't that mean you are qualified?

A. Not necessarily. For example, many people are accepted by a university or hired for a job. Some are not able to meet the requirements and are not qualified to remain in the program or job. In Powell v. National Board of Medical Examiners, 364 F.3d 79 (2d Cir. 2004), the court found that a student with learning disabilities was not qualified to remain in her medical school program. See also Robertson v. Neuromedical Center, Docket No. 98-1377 (5th Cir. December 3, 1998), cert. denied, Docket No. 98-1377 (May 3, 1999).

Q. If a qualified person does establish disability, what are the protections?

A. If the qualified person is able to establish disability, the person is covered by the prohibition in the ADA and RA against discrimination on the basis of disability. The person may be entitled to reasonable accommodations in the academic program or job.

Q. Aren't these laws supposed to insure fairness for all people who have learning disabilities or ADHD?

A. No. It is important to remember that what may seem unfair to a person is not always in violation of a law. The ADA and RA do not insure absolute fairness for all people who have an impairment that causes some limitation in some area of physical or mental functioning. The purpose of these laws is to protect from discrimination a select group of people who have disabilities, as defined in those laws.

In Sutton v. United Airlines, 527 U.S. 1031 (1999), Justice Ginsburg, in her concurring opinion, summed up her view of the purpose of Congress in enacting the ADA: "...to restrict the ADA's coverage to a confined, and historically disadvantaged, class" who by reason of their disabilities had been "subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society."

Q. What type of documentation does a person with a learning disability need to establish disability and justify an accommodation under these laws?

A. The type of professional documentation needed to show disability status under the ADA or RA would include showing:

  1. requisite capability,
  2. an impairment, such as a learning disability or ADHD,
  3. a specific functional limitation in performing a major life activity, such as learning, that is caused by the impairment, that is substantial compared to average people, and that is broad in impact on the person's life. If accommodations are being requested, the documentation should show that the accommodation is required because of the disability, that the accommodation is reasonable, and that, with the accommodation, the person is qualified for the academic program or job. Note that sometimes the very proof that establishes disability also establishes lack of qualification.

Q. Is there any harm in asking for accommodations that may be found unreasonable?

A. Yes. Care must be taken to request only accommodations that are reasonable. The statement that a person needs an accommodation to do a job, can be used to show that the person is not qualified for the job, if the requested accommodation ultimately is deemed unreasonable.

Q. What if a person with a disability believes that he or she has a basis for suit under the ADA or RA?

A. Consult with an attorney who has expertise in ADA/RA issues regarding the merits of the potential case, including checking state law. Sometimes state law is more broad than the ADA/RA. The attorney also may consider contract or other issues. Remember, that, generally, it is not easy for plaintiffs to prevail in ADA/RA cases. For example, in over 95% of the cases brought by employees under the ADA, the employers prevail.

Q. If a person with a learning disability does not meet the ADA/RA disability standard, then what can he or she do to increase the likelihood of success in academics or employment?

A. Before deciding upon an academic program or job, take account of personal and intellectual strengths and weaknesses and understand the requirements of the program or job. Seek a good match. Careful planning may avoid problems and promote success.

If an accommodation is needed, ask nicely. Sometimes educational institutions and employers are responsive, even though a court would not compel them to grant the accommodation. For example, if an employee wishes an accommodation, such as a quiet work space, consider asking the employer if a more quiet work space might be available. Explain that it would increase productivity. Sometimes employers are happy to work with an employee to increase productivity.

Note that testing and licensing entities may apply a strict legal standard for granting test accommodations because their focus is on the integrity of the testing process, fairness to all persons taking the test, and, in the case of licensing entities, protecting the public interest.

Reprinted with permission from JKL Communications.