The Impact of the ADA Amendments Act on the Employment Rights of Persons with Epilepsy

Summary
Based on a series of Supreme Court decisions which severely narrowed the scope of coverage under the Americans with Disabilities Act (ADA), most individuals with epilepsy (and some other chronic conditions) lost their protection against discrimination in employment under that law. As a result of the Supreme Court’s decisions, other courts around the county have ruled that persons with epilepsy and certain other conditions which are controlled by medication or other measures are not considered to have a disability under the ADA because they are too functional. On September 25, 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act (ADAAA). This law restores the right of persons with epilepsy to be protected under the ADA and to be treated fairly by employers.

Overview of the ADA
The ADA prohibits discrimination on the basis of disability in employment, state and local government services, public accommodations, commercial facilities, transportation, and telecommunications.

To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has 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.

Title I of the ADA requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. For example, it prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship.

In 1999, the Supreme Court ruled that, in determining whether a person’s impairment is covered as a disability under the ADA, the effects of medication and other “mitigating” measures (such as prosthetic limbs or hearing aids) on that impairment must be considered. And in 2002, the Supreme Court ruled that in order to be protected from discrimination, an individual’s disability must severely restrict or prevent him or her from engaging in major life activities such as walking, working or breathing. Based on these rulings, courts around the country have thrown out 90 percent or more of epilepsy-related discrimination cases, finding that persons with epilepsy whose condition is controlled with medication are too functional, and therefore, do not have a disability covered under the ADA. The result was that persons with epilepsy (and other conditions that are controlled on medication or do not severely restrict activities of daily living) had no protection against discrimination under federal law. Thus, without the law's protection, an employer could explicitly refuse to hire a person simply because that person has epilepsy.

ADAAmendments Act of 2008
On September 25, 2008, President Bush signed into law the ADAAA. The ADAAA becomes effective on January 1, 2009. The new law reverses the Supreme Court decisions which had severely limited protection under the ADA for persons with epilepsy and other disabilities; the amendments also contain other important clarifications regarding the Act’s coverage.

The ADAAA retains the ADA's basic definition of an individual with a "disability" – a person who has an impairment that substantially limits one or more major life activities, or a record of such an impairment, or who is regarded as having such an impairment. However, as outlined below, the ADAAA changes the way that these statutory terms should be interpreted in several ways:

1. Mitigating measures such as use of medication, assistive devices or learned behavioral adaptations (e.g., compensating for the loss of vision in one eye) shall not be considered in assessing whether an individual has a disability. The amendments reverse the Supreme Court decisions that had ruled to the contrary.
   
2. Congress explicitly rejected the Supreme Court decision which ruled that an impairment must severely restrict major life activities in order to be covered, finding that this is too high a standard. Congress directed the Equal Employment Opportunity Commission (EEOC) to revise its current ADA regulations to clarify this issue in a manner consistent with the amendments.
   
3. The definition of disability shall be interpretedin favor of broad coverage of persons under the ADA.
   
4. Impairments which substantially limit major bodily functions -- including neurological function -- are covered as disabilities.
   
5. Episodic conditions or those in remission are covered disabilities if they would substantially limit a major life activity when active.
   
6. An individual can succeed on a claim that he or she was “regarded as” having a disability under the ADA by showing that he or she was denied an employment opportunity (or equal access to a public accommodation or governmental program) based on an impairment (real or perceived), whether or not it substantially limits a major life activity. However, persons who are covered solely under this section of the definition (that is, the “regarded as” section) of the ADA will not have the right to a reasonable accommodation to that impairment.

Epilepsy is a Covered Disability
Based on the ADAAA, it seems virtually certain that persons with chronic seizures (epilepsy) will be able to establish ADA coverage. For instance, there can be little doubt that epilepsy substantially limits the neurological system, and therefore, is covered. Further assurance regarding epilepsy’s coverage is provided in the amendment regarding episodic conditions. Clearly, epilepsy, when active – that is, when one experiences a seizure – is substantially limiting. Similarly, if one evaluates an impairment in the untreated state – that is, as if the person was not taking medication for their seizures – to determine whether they are covered by the ADA, coverage of people with epilepsy should be required. The EEOC’s revised regulations should carry out the mandate of the law and ensure broad coverage for epilepsy and other disabilities.

Legal Help for Discrimination
Individuals experiencing discrimination based on epilepsy in employment, education and other areas can request legal help from the Epilepsy Foundation’s Jeanne A. Carpenter Epilepsy Legal Defense Fund. The mission of the Fund is to work toward ending epilepsy-related discrimination and injustice through education, advocacy and increased access to legal services for individuals with epilepsy. The Fund provides legal guidance to individuals and their families, along with referrals to a nationwide network of cooperating attorneys, who can provide legal advice and representation. These attorneys have agreed to provide at least three hours of free legal help to persons referred by the Fund. Individuals may request legal help through the Fund’s Web site, www.epilepsylegal.org, or by calling 1-800-332-1000 (select option 4).

For more information on the rights of workers with epilepsy under the ADA, including procedures on how to file discrimination complaints and the obligation of employers to make reasonable accommodations, see the Epilepsy Foundation’s fact sheets on these issues, available at http://www.epilepsyfoundation.org/epilepsylegal/LegalFactSheets.cfm.