This is a short guide to the principles of law that govern claims for employment discrimination based on disability status.  There are two statutes that apply: the Americans with Disabilities Act (ADA) and Chapter 21 of the Texas Labor Code.

1. What is a Disability?

Until 2008, this was the key question in almost all disability discrimination cases.  The original definition of a disability under the ADA was fairly broad: "a physical or mental impairment that substantially limits one or more major life activities of such individual."  However, the courts found ways to interpret the definition narrowly with respect to what constitutes a "major life activity" and what is a "substantial limitation."  It was not uncommon for ADA cases to require expert witnesses just to determine whether the plaintiff was disabled.

Congress swept this away with the ADA Amendments Act of 2008.  Congress added the following defintion of "major life activities":

A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Congress also specified that the definition of "disability" should be interpreted broadly in accorance with the purposes of the statute:

The definition of “disability” in paragraph (1) shall be construed in accordance with the following:

(A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.

(B) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as—

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(iii) As used in this subparagraph—

(I) the term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

After the passage of the ADA Amendments Act, the Texas legislature amended Chapter 21 of the Texas Labor Code in a manner that substantially conforms to the changes made by Congress.

2. What Are the Rights of an Employee Who Is Disabled?

In general, an employer may not discriminate against an employee based on their disability status.  An employer is required to offer reasonable accommodations to a disabled employee.  The law expects that the employer and the employee will engage in an interactive process to work out an accommodation that is reasonable and that does not cause undue hardship to the employer.  However, an employer must provide reasonable accommodations that do not cause undue hardship (if such accommodations can be worked out through the interactive process), and an employer may not discriminate against an employee because hiring or retaining the employee would require the employer to make reasonable accommodations.

3. What Is an "Interactive Process"?

The employer and the employee are expected to essentially exchange ideas and proposals to balance the employee's needs with the employer's legitimate concerns about expense and practicality.  The employer cannot say "I will do XYZ and no more," and the employee cannot say "I will accept ABC and no less."  The parties need to work together to resolve the issue.

4. Can an Employee Who Is Not Actually Disabled Be Treated as Disabled for Purposes of the Law?

Yes.  This is true for two classes of employees:

• An employee with a record of impairment.  An employee who is not currently disabled is not subject to discrimination due to past disabilities.  For example, an employer cannot discriminate against an employee who has a history of serious medical problems.
• An employee who is regarded as disabled.  An employee is protected if "he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

5. How Does an Employee Assert a Discrimination Claim?

An employee must file a Charge of Discrimination with the EEOC or the Texas Workforce Commission.  The agency will then investigate the claim and perhaps attempt to bring the dispute to a resolution.  If the agency chooses not to act, the employee can file a private lawsuit after receiving a right to sue letter.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes