ADA — Who Is Covered and Who Is Not?

reading_finger-law-policy-bookWhen is an individual with a learning disability a person with a disability under the Americans With Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 (RA)?

The answer is that a person with a learning disability is a person with a disability when that person meets the legal standard under those laws.

What is the legal standard?

Generally, the standard is that the person must have an impairment that substantially limits a major life activity, such as learning. The fact that a person has a learning disability does not necessarily mean that he or she has a disability under the ADA or RA. Having discrepant abilities or a discrepancy between one’s own ability and achievement does not necessarily mean that a person meets the legal standard for disability under these laws.

Is a learning disability an impairment?

Yes.

Q. Are all impairments disabilities under the ADA and RA?

No. In order to be a disability, the impairment must substantially limit a major life activity.

In Powell v. National Board of Medical Examiners, 364 F.3d 79 (2d Cir. 2004), the court rejected the argument that a doctor’s diagnosis of a learning disability would establish entitlement to disability status and entitlement to accommodation under the ADA.

What does “substantial” mean?

Some individuals with learning disabilities might have some limitation, but not have substantial limitation, and not be individuals with disabilities under the ADA/RA. A person with a learning disability who consistently achieves well above average scores on tests, without any accommodations, may not be substantially limited in learning compared to average people and so would not be a person with a disability.

How do you measure substantial limitation?

Performance of major life activities is compared to the performance of average people in the general population. The determination of substantial limitation is made without counting the positive effects of measures such as medication and compensatory strategies.

What are major life activities?

Major life activities include: learning, thinking, reading, concentrating, and communicating.

To be substantially limited in learning, one must be substantially limited in broad areas of learning, not just in one subject, such as physics, or one task, such as taking a standardized tests. McGuinness v. University of New Mexico School of Medicine, 170 F. 3d 974 (10th Cir. 1998).

Do you have to be qualified for the job or program to receive accommodations under the ADA?

In general, a person with a disability who is not qualified would not be entitled to an accommodation. A person with a disability can be dismissed from a program or job if he or she is not qualified.

If you are accepted to a program or hired to perform a job, doesn’t that mean you are qualified?

Not necessarily. For example, many people are accepted by a university. Some fail and are not qualified to remain in the university program. In Powell v. National Board of Medical Examiners, 364 F.3d 79 (2d Cir. 2004), the court found that a student with learning disabilities was not qualified to remain in her medical school program. See also Robertson v. Neuromedical Center, Docket No. 98-1377 (5th Cir. December 3, 1998), cert. denied, Docket No. 98-1377 (May 3, 1999).

If a qualified person does establish disability, what are the protections?

If the qualified person is able to establish disability, the person is covered by the prohibition in the ADA and RA against discrimination on the basis of disability. The person may be entitled to reasonable accommodations in the academic program or job.

Aren’t these laws supposed to insure fairness for all people who have learning disabilities?

No. It is important to remember that what may seem unfair to a person is not always in violation of a law. The ADA and RA do not insure absolute fairness for all people who have an impairment that causes some limitation in some area of physical or mental functioning. The purpose of these laws is to protect from discrimination a select group of people who have disabilities, as defined in those laws.

Can you sue a state for money damages for not complying with the ADA/RA?

Sometimes yes and sometimes no. Court cases demonstrate that there are special issues presented when considering the application of the ADA or RA to states.

A person may sue for money damages if there has been an act of intentional discrimination that would violate the Fourteenth Amendment to the Constitution (equal protection and due process).

In ADA Title II cases involving fundamental due process rights, such as access to the courts, the United States Supreme Court has held that individuals with disabilities may sue states for monetary damages. See Lane v. Tennessee, 2004 WL 1085482 (U.S. Sup Ct. May 17, 2004).

Where there has been a failure to accommodate, not intentional discrimination, states may be protected from ADA suits by private parties, because of sovereign immunity. For example, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the U. S. Supreme Court held that a suit for money damages, based upon the failure of Alabama to accommodate employees with disabilities under Title I of the ADA, was barred by the Constitution.

What type of documentation does a person with a learning disability need to establish disability and justify an accommodation under these laws?

The type of professional documentation needed to show disability status under the ADA or RA would include showing: (1) an impairment, such as a learning disability, and (2) a specific functional limitation in performing a major life activity, such as learning, that is caused by the impairment and that substantially limits a major life activity, compared to most people. If accommodations are being requested, the documentation should show that the requested reasonable accommodations are required because of the disability. Note that sometimes the very proof that establishes disability may also establish lack of qualification for the academic program or job.

Is there any harm in asking for accommodations that may be found unreasonable?

Yes. Care must be taken to request only accommodations that are reasonable. The statement that a person needs an accommodation to do a job, can be used to show that the person is not qualified for the job, if the requested accommodation ultimately is deemed unreasonable.

What if a person with a disability believes that he or she has a basis for suit under the ADA or RA?

Consult with an attorney who has expertise in ADA/RA issues regarding the merits of the potential case, including checking state law. Sometimes state law is more broad than the ADA/RA. The attorney also may consider contract or other issues.

If a person with a learning disability does not meet the ADA/RA disability standard, then what can he or she do to increase the likelihood of success in academics or employment?

Before deciding upon an academic program or job, take account of personal and intellectual strengths and weaknesses and understand the requirements of the program or job. Seek a good match. Careful planning may avoid problems and promote success.

If, an accommodation is needed, use a positive and reasonable approach. Sometimes educational institutions and employers are responsive, even though a court would not compel them to grant the accommodation. For example, if an employee wishes an accommodation, such as a quiet work space, consider asking the employer if a more quiet work space might be available. Explain that it would increase productivity. Sometimes employers are happy to work with an employee to increase productivity.

Note that testing and licensing entities may apply a strict legal standard for granting test accommodations because their focus is on the integrity of the testing process, fairness to all persons taking the test, and, in the case of licensing entities, protecting the public interest.

What can be done to help people with learning disabilities who seek to enter professions, such as law and medicine, and are not covered by the ADA/RA?

Seek, as a matter of policy, to have testing entities allow a more liberal amount of test time for all applicants on entrance exams and professional licensing exams. In granting accommodations to certain applicants with disabilities, the testing entities have conceded that speed is not essential. Why then should anyone be barred from entering a profession due to lack of test taking speed?

By Patricia H. Latham, Washington, DC attorney and author of LEARNING DISABILITIES AND THE LAW.

Comments

  1. Hello my name is Teresa D Atkins I’m 52 years old. I have always had a learning disability. I was always a bad student I failed 2 grades the 7th and the 9th grade. I did not graduate high school . I know its a little late in life to try and get help but I really want to know what kid of disability I have and why.I am unemployed and can’t find a job because I am not like other people I’m just dumb and it breaks my heart ,I would love to learn and have a career ,I am married and my husband is very smart and I am very dependent on him but he is self employed and there for we do not have insurance so I haven’t been able to go to the dr and be diagnosed. If you’re thinking that my writing is not that bad I use a lot of spell check and FB has helped me a lot with my writing skills. i don’t really know who will get this letter but if i’m at the wrong place please writ me back and tell me thank you

    • ldaamerica says:

      We appreciate you trusting LDA to help answer your question. We will have an expert on the subject post their comment soon.

  2. Nancie Payne says:

    Hi Teresa,
    Thank you for sharing your information and questions. Sometimes the maze of services is just plain hard to navagate. For individuals who have never been diagnosed, as in your case with a learning disability, I think it is critical to know the structure of services that might be available. Thus, I am sharing that aspect.

    Each state has a rehabilitation service for individuals with disabilities (or perceived disabilities). These statewide programs all have the same services, they just go by a little different name (in Washington State where I live our statewide service is called Division of Vocational Rehabilitation while in Illinois it is called Department of Rehabilitation). So first locate the state office in your state (you can do this on the web). Once you get to the state site then locate your county or region and sign up for an orientation or beginning meeting to learn more about the services available to you.

    The important part of beginning this process is to be very clear about your desire to go to work and how you believe the things you are experiencing (the potential of having an undiagnosed learning disabilities and not knowing what the accommodations might be) are getting in your way – basically you are needing help to move forward. If assessment is required then the rehabilitation program may be able to assist you in accessing the evaluation needed.

    Hopefully this information will help you begin the process and get the services needed.
    Here is the link to an article written by LDA Adult Topics — http://ldaamerica.org/category/workplace-issues/ Once you get to this page then scroll down to the 4th article titled Rehabilitation Services Administration (RSA) – this should be helpful too.

    Nancie, LDA Volunteer

  3. My 19 year old son is learning disabled. According to the school documentation he has a cognitive disability. Not really sure what that means, but he has difficulty with reading, math and memory. He had an IEP throughout his school years and did not have to pass the standardized testing for the state in order to graduate. He did graduate, but nearly every job he has applied for requires a test. He has not passed any of them. During his school years everyone was there to help now it seems like we are left on our own. How do we get him qualified for accommodations as an adult? I have all of the documentation from school. Will he qualify for accommodations? How do we get him the help he needs?

  4. Hello, My name is Michael – I am 42, Single – I have had a learning disability ever since I was diagnosed at age 11. I attended the same Catholic School as my brothers and sister’s, even though it was (for me) a struggle to keep my grades up – I fell back by repeating the 6th. grade twice. With all that happened to me – I suffered a lot of torment from my fellow classmates. I was picked on relentlessly And cause the fact I was picked on that much in school , I was also picked on by my own siblings. So, to make things worse, my Dad had a talk with the principle whom thought it would be in my best interest to put me in a different school. Naturally, I got more scared of that thought, Because I already knew far in advance, that would give my brothers and sisters the opportunity to say “Cause your the only odd ball in the family who never graduated from the same school as us.” And my Dad knew I was right. So, I stayed put. So, My Dad had another talk with my principle. And came up with another plan. My classes were modified. And it worked. I graduated with my younger brother in 1986. During the time of 6th. grade and 8th. grade My parents and teachers and the school’s shrink had a meeting, saying it would be a good idea if I were to go to a trade school – to learn to work with my hands. That’s when I attended a Vocational Technical High School. Which was great. I graduated in 1990. But ever since then to now (2014) I have been working, but only part-time. – I did at one point had a full time job, but it didn’t hold.
    Nor did I ever had the opportunity to advance. I don’t like my learning disability problem, I hate it. I do work now but only part time. Today, (8-8-2014) I am looking into returning to school at a new by college – only to meet up with more problems. I am trying to find a college – that I can learn online – How do I overcome or approach to find what I need to help my needs?

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