WHO HAS A DISABILITY?
While definitions vary somewhat under different laws, generally, people are
considered to have a disability if they:
1) have a physical or mental impairment which limits one or
more life activity, such as walking, talking, seeing, hearing,
self-care, learning, work ing; or
2) have a record of having had an impairment, such as a history
of cancer, past mental illness; or
3) are regarded by others as having an impairment (for example,
be cause of a facial scar, limp or positive HIV test).
Laws, particularly those relating to employment, frequently limit protection
to those considered "qualified". To be "qualified", a person with a disability
must be able to perform essential job functions (at least with reasonable
accommodations by the employer). What accommodations are reasonable generally
depends on the circumstances of each situation. This issue will be discussed
in greater detail below.
People with AIDS, ARC, tuberculosis and other infectious conditions are
considered to have a disability and are protected to the extent that their
infectiousness does not pose a significant risk of hazard to others. 29
U.S.C. Sec. 706(8)(B); School Board of Nassau County v. Arline, 480 U.S. 273
(1987) (teacher with tuberculosis); Chalk v. U.S. District Court for the
Central District of California, 840 F.2d 701 (9th Cir. 1988) (teacher with
AIDS). In Arline and Chalk the teachers were not actually contagious, but
others thought that they were (perceived disability); contagiousness, or the
perception of it, was found to be a disability. Whether a person who is
contagious is protected against discrimination depends on whether the
person's contagiousness makes him or her not otherwise qualified to hold a job
or enjoy a right. An individual "who poses a serious risk of communicating a
contagious disease to others in the workplace will not be otherwise qualified
for his or her job if reasonable accommodation will not eliminate that risk."
Arline, 480 U.S. at 287, n. 16. Where the risk of contagiousness could be
virtually eliminated by reasonable accommodation in the job or location
sought, offering the person alternative employment or an alternative site to
enjoy a public accommodation, for example, would be unlawful. Thus
segregating school children from their classmates because the children are
HlV-positive would be unlawful unless there was a substantial risk (not
present in the usual classroom environment) that their presence in class would
lead to the infection of their classmates. See also the September 27, 1988,
United States Justice Department Office of Legal Counsel memorandum, prepared
by Acting Assistant Attorney General Douglas Kmiec, discussing coverage of peo
ple carrying the AIDS virus under Sec. 504 of the Federal Rehabilitation Act.
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Alcohol and Drug Abuse
In New York State, people who abuse alcohol, narcotics and other substances
are considered to have disabilities, although current abuse which interferes
with safety, job performance or similar factors would deprive them of
protection in many cases. New York State Human Rights Law, Executive Law Sec.
292.21. While this law is controlling in New York City as well, it should be
noted that New York City and, for almost all purposes, Federal laws exclude
current abusers of alcohol and illegal substances from definitions of
individuals with disabilities. See New York City Human Rights Law,
Administrative Code Sec. 8-102.16; 29 U.S.C. Sec. 706(8)(B), (C) (as amended
by Sec. 512 of the Americans with Disabilities Act ("ADA")); 42 U.S.C. Sec.
3602(h); 24 C.F.R. Sec. 100.201 (1990); see also 38 U.S.C. Sec. 1431(d) (see
especially subdivision (2)(A), added by the Veterans' Benefits and Programs
Improvement Act of 1988 to overturn a Supreme Court decision which had
approved a Veterans Administration policy which had considered alcoholism and
drug dependency willful mis conduct rather than disabilities). For example, an
actively heroin-addicted police officer may not be protected. Heron v.
McGuire, 803 F.2d 67 (2d Cir. 1986). Under Federal law, a person may have to
be either rehabilitated or in the process of rehabilitation to be protected.
See Burka v. New York City Transit Authority, 680 F. Supp. 590 (S.D.N.Y.
1988). This case suggests that casual drug users cannot, simply by virtue of
their substance use, claim to have a disability in order to be protected from
adverse consequences under Federal law. "[A] social or casual user of drugs,
whether the drug of choice is alcohol or marijuana or cocaine, is not disabled
within the meaning of the [New York State] Human Rights Law," although a
person who is, has been, or is perceived to be or to have been addicted to
drugs is covered under that law. Porcello v. General Mo tors Corp., New York
State Division of Human Rights, Case No. 3-E-D-85-103394 (January 18,1990);
see Doe v. Roe, Inc., 143 Misc.2d 156, 539 N.Y.S.2d 876 (Sup. Ct. N.Y. Cty.
1989), aff'd 553 N.Y.S.2d 365 (1st Dep't 1990).
This is a rapidly developing area of the law. In one of the few immediately
effective provisions of the ADA (Sec. 512), the Federal Rehabilitation Act of
1973 is amended to exclude from protection people discriminated against on the
basis of current illegal drug use, whether or not such drug use actually
impairs their functioning; alcohol abusers still are protected unless their
func tioning is impaired. While such changes in Federal law do not directly
affect City and State protections noted in the immediately preceding
paragraph, they do indicate a direction which courts and legislatures are
beginning to take.
It is important to remember that the outcome of a lawsuit may turn as much on
the specific language of the statute under which suit is brought as on the
facts of the particular case. For example, in suits brought under Federal law,
some courts have suggested that impairments which affect an ability to do some
-- but not all -- jobs should not be considered protected. It is not certain
that these cases would have been decided the same way in Federal courts sit
ting in New York, but it is likely that they would have been decided
differently had they been brought under the New York State or City Human
Rights Laws. See Sbte Division of Human Rights (McDermott) v. Xerox Corp., 65
N.Y.2d 213, 480 N.E.2d 695, 491 N.Y.S.2d 106 (1985).
Thus, for more specific language, see the Federal Rehabilitation Act of 1973,
29 U.S.C. Secs. 706(7), (8); 28 C.F.R. Secs. 41.31, 41.32; New York State
Human Rights Law, Executive Law Sec. 292.21; New York City Human Rights Law,
Ad ministrative Code Sec. 8-102.16; Federal Education of the Handicapped Act,
20 U.S.C. Sec. 1401. Various Federal agencies have responsibility for
enforcement of the Rehabilitation Act and have issued regulations interpreting
the statutory language. For example, see 45 C.F.R. Sec. 84.3(j)(2) in the
Department of Health and Human Services ("HHS") regulations, as well as 24
C.F.R. Sec. 8.3 (1988), the definitional section in regulations of the United
States Department of Hous ing and Urban Development ("HUD"), issued after
passage of the Civil Rights Restoration Act, P.L. 100-259, and containing
definitions which, the United States Department of Justice advises, comply
with current law. See also the Civil Rights Restoration Act and the Supreme
Court's decision in Arline, 480 U.S. 273. Many of the laws cited in this
paragraph use the term "handicap", rather than the more currently favored term
"disability"; generally, the latter term is used in this publication.
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