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What Counts as a "Disability" When We Discuss Disability Discrimination?

Posted by attorney Vincent White

What is and is not considered a disability can be a complex subject. The term is extremely broad under New York State and New York City human rights law, in some instances including disabilities such as substance addiction and alcoholism.

Under Federal Law, disability is defined for our purposes by The Americans with Disabilities Act. On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act" or "ADAAA"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. Under the amendments, impairments such as cancer, diabetes, and epilepsy are now included within the definition of disability.

The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009.

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