CODI: Cornucopia of Disability Information

Rights of People with Disabilities:

	
CHAPTER I 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. Contagious Diseases 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. - 3 - 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. Specific Language 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. - 4,5 -
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