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.

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Comments

  1. I dont have a learning disability but do have barriers to learning. I need a quiet room for testing, extended time for tests, I have memory issues and sometimes need to reread something. I have difficulty with remembering multiple steps. Algebra is very difficult for me but Geometry is easy. I have difficulty learning online on publishers sites. So many do not allow me to reread or to complete the answers I know right away and go back to do the ones that I need to finish. I many times use scratch paper and write things down. Its really quite common my therapist says for people who suffer from PTSD. But its not recognized in text books such as teachers etc might have. He said he has seen it in his many years of practice and in his DBT training. (Dialectical Behavior Therapy). I have a high IQ but have barriers to learning not a disability. When I attended MHCC the director of DSS there I signed a release for her to contact my therapist (The director of DSS at MHCC had a MSW) and I never had issues with receiving accommodations from that institution. No one else has ever done that before for me.

  2. Christina says:

    My name is Christina from KS, 36 yo, dx with dyslexia at the age of 8 (but they knew something was wrong long before that) IQ of 110. AD/HD. Reading/Spelling, writing are really bad. And Getting worse everyday. I’m an LPN and taught myself medical coding (CPC-P) last year. But I can’t get or hold a job. I seem to be hated for triple checking things and “always knowing it all” but you have to know it all to compensate for not being able to Spell/ Read it. Driving somewhere new is always nerve racking because I can read the road signs or more often than not read them wrong. I have been out of work for over a year and it’s taking it’s tool on me in all ways. There needs to be something out there that will protect people like me/us that will ensure that even thought the LD gets worse that we will not fall through the cracks. I didn’t qualify for a job today because I can’t type 45 words per min. I got 38 and there is no way I can do better than that because of the LD. It’s so disheartening and depressing. Good luck to everyone else I hope you have better luck.

  3. Hello my name is Patricia.
    I’m 44 years old I live in central Kentucky and I’m a class a cdl holder.
    I have a few deferent types or learning disabilities that affect Reading and mathematics I also suffer from test anxiety. I worked really hard to get my cdl. I learned my pret rip on my own that’s a art in its self. All the reading and memeration. The written test was hard for me also but I did it after a few try’s each. I went on to work for a company and I become trainer. I have 3 years otr and dedicated experience. I recently had a offer from a truck driver training school to be a instructor. It was short notice from the time of offer till I tested. I told them I have I didn’t think I could do it in that short notice but I could try. I asked if I didn’t pass the road and pre trip or is the written test held me up what would happen. I was told I would need to report to work for training for the job but I couldn’t teach till I got my license. I went through 5 days of studying day and might I locked up on the written test but I passed. I failed on my In can really bad. But the officer didn’t follow the test map out. When I arrived back to the school that day I was told I didn’t fit and I didn’t fit in. I was given no time with a truck other than 45 minutes the day before my road and pre trip and 30 minutes the day of. I stressed to this person I had a problem and needed time I told her I am very qualified and I’m a hard worker. She acted like she was talking to the ceo by typing as soon as she lifted her hands she said yeah no he said no you don’t fit in. I told her if I had been given the same chance and opportunity as everyone else I could pass she told me no then tried to make me look lazy. She also called my a lier with out saying it right out. I was told by other instructors if I work for free till I pass she might change her mind. I have a learning disabilities and I can get my records stating this I was evaluated at a young age I was in some disability classes also. This has made me feel unfit for something I worked hard for I have never worked as hard for anything else in my life. I love teaching drivers I have even Trained others with disabilities.

  4. Robin Rosenblatt says:

    I like to sue web for not helping those of us with with learning disabilities

  5. Walter D.W. says:

    Hi my name is Walter D.
    I’m a 51 year old male on the west coast , when I was in about the second grade I do remember sitting at a desk that had about 6 to 7 kids and there were several desks in the class room any ways I clearly remember taking tests with multiply questions and about half way through the test other kids were already done and they start to whisper which turns into talking , at this point I’m nervous and I don’t want to look dumb so I start checking off a,b,c or d it didn’t matter I just wanted to fit in with those being done to look smart , and it was that point that screwed me up for life,, I took many of tests over the years using that same method and trust me it did not work for me.
    over the years I tested for the army using my method and never made it, I tried the air force I just could not pass the test, I tried the police department several times same thing,,, people getting done with there tests early, they start whispering then talking and there I go again I just start checking off answers real fast so I don’t look dumb and it never works, I tried the California contractors license many times and fail fail fail. I really wished my situation was fixed at an early age but it wasn’t, and here I am married and no retirement jumping from job to job, had my reading skills been observed and fixed at that table when I was a kid life would have been different.

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