142 Determining Who Is a Person With a Disability

142.1 Overview

To determine whether an individual is a person with a disability, two questions must be answered:

• Does the person have a physical or mental impairment?
• If so, does that physical or mental impairment substantially limit a major life activity?

142.2 Defining Physical and Mental Impairments

A physical impairment can include:

• Any physiological disorder or condition.
• Cosmetic disfigurement.
• Anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, circulatory, cardiovascular, reproductive, digestive, genito-urinary, hemic, lymphatic, skin, immune, and endocrine.

Mental impairments include the following:

• Any mental or psychological disorder, such as an intellectual disability or organic brain syndrome.
• Emotional or mental illness.
• Specific learning disabilities.

Physical and mental impairments do not include the following:

• Normal physical characteristics, such as being overweight but not obese.
• Personality traits within the range of normal, such as poor judgment or a quick temper.
• Other conditions, such as normal pregnancy, that are not the result of a physiological disorder.

142.3 Defining Major Life Activities

Major life activities include, but are not limited to, functions such as hearing, seeing, walking, speaking, caring for oneself, performing manual tasks, breathing, eating, sleeping, standing, reading, working, lifting and communicating. Also included is the operation of a major bodily function such as:

• The operation of an individual organ within a body system.
• The operation of a major bodily function such as, but not limited to, functions of the immune, digestive, neurological, circulatory, lymphatic and musculoskeletal systems; and normal cell growth.

There are often times when it is easily determined that an impairment substantially limits a major life activity and is a disability. Examples of these “predictable assessments”, identified in 29 CFR 1630.2(j)(3)(iii), include, but are not limited to, the following:

• Deafness, which substantially limits hearing;
• Blindness, which substantially limits seeing;
• Autism, which substantially limits brain function;
• Diabetes, which substantially limits endocrine function; and
• Epilepsy, which substantially limits neurological function.

Where individuals claim that they are limited in the major life activity of working, they must show that their impairment substantially limits their ability to perform either a class of jobs, or a broad range of jobs in various classes, as compared to most people with comparable training, skills, and abilities. Generally, an individual does not meet this requirement by demonstrating a substantial limitation in performing the unique aspects of a specific job for a particular employer.

142.4 Defining “Substantially Limits” Criteria

The “substantially limits” criteria is not a demanding standard. An impairment need not prevent, or significantly or severely restrict, an individual from performing a major life activity. Determining whether an impairment substantially limits a major life activity requires an individualized assessment; in most cases, this does not demand extensive analysis. Other factors to consider in evaluating “substantially limits” include the following:

• An impairment is a disability if it substantially limits an individual’s ability to perform a major life activity, as compared to most people in the general population.
• Usually, the substantially limits assessment will not require scientific, medical, or statistical analysis.
• The substantially limits assessment must be made:
• Without considering the ameliorative effects of mitigating measures (with the exception of ordinary eyeglasses or contact lenses).
• By considering the non-ameliorative effects of mitigating measures, such as the negative side effects of medication or the rigors of a treatment regimen.
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• An impairment that substantially limits one major life activity need not substantially limit any other in order to be a disability.
• The effects of an impairment that is temporary can be substantially limiting. The duration of impairment is but one factor to consider in determining whether an impairment is “substantially limiting.” Typically, impairments that last for a short period are not substantially limiting, but this is not a fixed rule and an individual assessment and determination is necessary always. For example, limitations of short duration can be substantially limiting if the limitation is severe.
• Not all impairments will be substantially limiting. Consequently, when there is a doubt about the existence of a substantial limitation, it is appropriate to consider the following when comparing an individual’s performance of a major life activity to the performance of the same activity by most people in the general population:
• Scientific, medical, or statistical evidence.
• The conditions under which the individual performs the major life activity.
• The manner in which the individual performs the major life activity.
• The time it takes the individual to perform the major life activity.

In considering condition, manner, or duration, you must consider the following factors:

• The difficulty, effort, or time required to perform a major life activity.
• Pain experienced.
• The length of time an individual can perform the major life activity.
• The way an impairment affects the operation of a major bodily function.