The Fifth Rule of Construction

The fifth rule of construction in determining if a person’s impairment substantially limits him or her in a major life activity states:  The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

The purpose of this rule is to make it clear, once again, that the federal Americans with Disabilities Act is to be interpreted broadly.  The person with a disability needs only to show that he or she is restricted in the performance of a major life activity as compared to most people in the general population. 

For example, a person with dyslexia may not be able to read handwritten notes.  This person does not have to provide a physician’s note or statistics about dyslexia.  He is allowed to, but is not required to.  It is sufficient to say that most people in the general population can read handwritten notes. 

It is reasonable to infer that most people can read such notes and that, if this person cannot, his impairment substantially limits him in a major life activity.  Presenting statistics or scientific proof that dyslexia prevents people from reading handwritten notes is not required.

The entire purpose of the ADA is to remove barriers encountered by persons with disabilities while trying to live everyday life.  The Amendments Act of 2008 makes it clear that the Act is not intended to add barriers that make persons with disabilities prove they should be covered by this law.  This rule, like the other eight rules of construction, is intended to clarify this.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Determined Tennis Player

When I first heard there was a story about a one-armed high school tennis player who made it to the Kentucky State High School Tournament, my thought was that was nice.  But, I didn’t think it was a whole lot more than that.  I was mistaken.

Jacob Raleigh had played in the tournament two years before, when he had two arms.  Now he was back playing again with only one arm.  Okay.  This gets a little more interesting.  But there is more. 

Raleigh’s dominant hand was his left hand.  However, the young man developed a rare soft-tissue cancer in his left wrist which eventually led to the amputation of his left arm.  Now, this is a big deal. 

This young man, in the short two years between playing in the state tournament, had cancer, lost his dominant arm, learned to play tennis again with his right arm and still made it to the state tournament.  Oh, and people who lose an arm, no matter the reason, have to learn to balance themselves all over again.  This is huge!

This young man is obviously going to succeed in whatever he chooses to do in life, since he is so determined.  It also goes to show that having a disability does not change the character of the person.  It only changes one characteristic. 

If you are an employer and an applicant with a disability looks to be employed in your business, think of Jacob Raleigh.  I don’t guarantee that your applicant will be that determined, but you need to at least consider that the person in front of you is the same person, with the same education and experience, he or she was before disability and that it is likely that you can accommodate the disability with a simple accommodation. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Murray Mann addresses The State of Disability in the Workplace

The Spring 2011 issue of Diversity MBA Magazine has an article by Murray Mann, a principal of Global Diversity Solutions Group LLC, a Chicago based consulting firm titled The State of Disability in the Workplace.

Even though the ADA has been in effect for 20 years and research shows that businesses that hire persons with disabilities and even use persons with disabilities in their advertising benefit greatly, the unemployment rate for persons with disabilities is still extraordinarily high. 

I encourage you to read the entire article, but I will quote some of the statistics cited in this article:

·         More than 54 million persons with disabilities comprise the third largest market segment in the US.

·         In February 2011, one in five (20.6%) persons with disabilities were employed, compared to over two-thirds (69.5%) of persons without disabilities.

·         For every dollar spent on an accommodation, participating companies realized more than $10 in benefits.

·         2% of HR professionals replying to a survey used resources available to find qualified job applicants who are veterans with disabilities.

The sources for his statistics included the Department of Labor’s Bureau of Labor Statistics, the Job Accommodation Network and the Society of Human Resource Management.

Mr. Mann has done a thorough job of defining the problem.  We need to look at the reasons this is happening and see what can be done about it.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The Fourth Rule of Construction

The fourth rule of construction in determining whether an impairment “substantially limits” a major life activity is:  The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term ‘‘substantially limits’’ shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘‘substantially limits’’ applied prior to the ADAAA.

This is one more way of telling the courts that congress intends for this law to be applied broadly, covering more people than the courts determined in the first 18 years of the Americans with Disabilities Act.

In the Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the issue of “substantially limits” was key.  The court found:  The Court's consideration of what an individual must prove to demonstrate a substantial limitation in the major life activity of performing manual tasks is guided by the ADA's disability definition. "Substantially" in the phrase "substantially limits" suggests "considerable" or "to a large degree," and thus clearly precludes impairments that interfere in only a minor way with performing manual tasks.

As in other court cases, the decision was based on whether or not the individual was covered under the ADA and not whether there was an act of discrimination.  Again, the whole purpose of the amendments is to reverse these priorities. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude