An advocate’s first step is to determine if the client has a disability under the framework of the ADA. The ADA has an expansive definition and guidance for disability, found at 28 C.F.R. §35.108. This definition “shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”1 The definition provides coverage for individuals under three rubrics.
First, an individual is protected by the ADA if the individual has “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.”2 An impairment “substantially limits a major life activity” if an individual is unable to perform, or is significantly limited in the ability to perform, an activity compared to an “average person” in the general population.3 The threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.4 There are three factors used to determine whether an impairment substantially limits: 1) its nature and severity; 2) how long it will last or is expected to last; and 3) its permanent or longer-term impact or expected impact. For example, a person who is legally blind or who has low vision has an impairment that substantially limits the major life activity of seeing.
Second, an individual is protected if the individual has “a record of such an impairment.”5 This situation arises when a disability that is not open and obvious and is not readily identifiable by a person interacting with the individual. For example, an individual with autism may fit under this category; you may not be able to identify that the individual has autism, but the individual may have a diagnosis declared in medical records.
Third, an individual falls under the ADA if the individual is “regarded as having such an impairment.”6 This arises when people who interact with the individual believe that the individual has a disability and associate the individual with having such a disability, even in the absence of documentation. However, an individual is not regarded as having such an impairment if it may be demonstrated that the impairment is, objectively, both “transitory” and “minor”.7 Transitory is defined, for these purposes, as lasting or expecting to last six months or less.8