In October 2019, the 8th Circuit Court ruled in an ADA case against Dollar General that a worker could be considered disabled under the Americans with Disabilities Act even if she doesn’t specifically identify herself as “disabled.” The plaintiff’s precise diagnosis is less important than her fairly obvious need for the kinds of accommodations that help people with disabilities do their jobs effectively.
This is just the latest example of the remarkable practicality of the ADA’s definition of disability.
Gatekeeping has always been a preoccupation in disability policy and culture. What, exactly, do we mean when we say someone is “disabled?” Is disability always a medical condition that can be measured precisely? Is it a cultural designation defined by being treated in a certain way? Or do we need to rely on lists of approved conditions that do or don’t qualify as officially “disabled?”
When the ADA was developed in the late 1980s and passed in July, 1990, it embraced and helped define a distinctly inclusive definition of disability, using what has been called a “three-pronged” definition.
In its Technical Assistance Manual on the ADA, the U.S. Department of Justice explains:
“To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.”
To understand what makes this definition of disability revolutionary, it’s important to dig deeper into how this definition works.
- The ADA covers people with any physical or mental impairment. This is critical, because at that time it was passed and still to an extent today, it’s not uncommon for people to treat physically impaired, blind, deaf, and mentally or intellectually impaired people differently, often unequally. The ADA’s definition helps to undercut these divisive hierarchies within the broader disability community.
- The ADA applies to people with “significant” impairments. This is still something of a judgement call. But the gist of it is that very minor impairments like nearsightedness, and simple things you’re just not good at really aren’t what we have in mind when we talk about disabilities.
- People who aren’t actually disabled can nevertheless be materially harmed by disability discrimination. So non-disabled people can sometimes be protected by the ADA as well. Examples include: the non-disabled spouse or family of a disabled person; people with a visible condition, like facial disfigurement, that doesn’t significantly impair, but can inspire disability prejudice; and people who once had a significant long-term condition but don’t anymore, like someone who at one time had cancer but doesn’t anymore.
The practical, flexible way the ADA defines disability may be the law’s strongest, most socially significant quality. But it has also been one of the law’s most controversial aspects. Critics have long asserted that the ADA definition of disability is too “vague.” The Supreme Court more than once ruled accordingly, for a time narrowing how the law’s actual scope.
Then, in 2008, Congress passed the ADA Amendments Act, (ADAAA), reinforcing the principle that the ADA definition of disability should be interpreted broadly. Jinny Kim, Director of the Disability Rights Program at Legal Aid At Work in San Francisco explains:
“Under the ADAAA, the question “should be whether [covered entities] have complied with their obligations,” and, “… the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”
There are both weaknesses and strengths in the ADA’s definition of disability today.
First of all, the laundry-list of specifically excluded conditions added to the original bill to secure key votes for passage (mostly conditions related to homosexuality, gender identity, and a hodgepodge of sexually-related crimes and disorders), do not hold up well today, either morally or legally. They read as petty betrayals, and don’t even make any practical sense, given the ADA’s core idea of functional impairments regardless of cause or diagnosis.
The ADA’s nuanced approach to disability opened the door for courts to narrow the definition, which for awhile they did until the 2008 ADA Amendments Act clarified and strengthened the principle of a broad and inclusive definition.
Also, what are viewed by some as completely appropriate advancements of disability rights protections to previously unprotected disabled populations have often been popularly portrayed as evidence that the ADA is an ill-defined free-for-all opportunity for anyone to claim “special treatment.” Even though they are exactly the kinds of questions of practical effect the ADA was specifically designed to resolve rationally, headlines asking whether previously ill-defined conditions like obesity and anxiety “count” as disabilities under the ADA often carry an undercurrent of irony and disdain.
On the other hand, the functional, inclusive approach to defining disability did mostly spare the disability community itself from many bitter internal battles that would have raged if people with each disability type had to fight their way into ADA protection. Newly-identified and better understood conditions have rightfully come under the ADA umbrella without much difficulty or opposition from more established disability groups.
Opting for a set of criteria instead of a list of conditions was also part of a larger historical trend. For the last several decades, the disability rights movement has been moving from a system of fractured and competing disability groups based on medical diagnosis, towards a broader disability community with a shared outlook based on the diverse but similar experience of practical barriers and social stigma. The ADA both reflected and accelerated this evolution.
Finally, a more open-ended definition of disability allows the ADA to deal with disability discrimination no matter who it harms. It underscores that it is a civil rights law available to anyone, not just to a pre-selected, finite group of people.
Essentially, the ADA defines disability not so much as a population, but in terms of a kind of experience … the experience of ableism.
Almost 30 years after the ADA was signed, this flexibility is still a feature of the law, not a bug, It should be embraced, not criticised by the people the law protects, and by businesses, employers, and others called upon to provide inclusive accessibility and equal opportunity for people affected by disabilities of all kinds.
In short, you need to be ADA compliant. Because authorities aren’t messing around one bit. If you think it’s a game, let me assure you that it’s not. Everything is coming under scrutiny. Websites, apps, and pdfs included. All of these are susceptible to lawsuits and litigation. There’s so many benefits to having access to ADA Comply. After you get access today, the only regret you’ll have is that you wish you would have had access sooner.
For example, you’ll be able to:
Listen, most local marketers just continue to offer services that are highly saturated. That’s why they don’t get anywhere. Sure, people need a website and some SEO work done…and maybe even a bit of social media here and there.But ADA compliance is a MUST. These local businesses can’t be without it or they’ll get sued big time.This puts the leverage back in your hands.You’ll be offering a service that local businesses would be foolish to pass up unless they want to pay the stupid tax.
Heck, you could even say that these businesses will chase you down when they see how much they have to lose.But even if you already have some local clients, just think of the money you can add on to your bottom line by offering ADA Complyto them as well!