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Gauge what a person confronts, not overcomes, to see if he’s ‘disabled’

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in Discrimination and Harassment,Human Resources

Before taking employment action against impaired employees, evaluate their abilities thoroughly. Your goal: Determine if they would qualify as "disabled" under the ADA, and therefore, earn accommodations. Compare the employee's abilities to the way a non-disabled person would perform.

But take note: Just because an employee can perform most tasks doesn't automatically mean he or she is not "disabled." If the person still has major difficulty accomplishing those tasks, he or she still may qualify.

Typically, employees must be "substantially limited" in a major life activity to be considered disabled under the ADA. But a new court decision says that impaired employees who, through hard work and perseverance, have been able to participate in major life activities may still be disabled if they face "significant obstacles" to perform those activities.

Recent case: Alvin Emory, who has cerebral palsy, worked as a custodian at a pharmaceutical company for 30 years.

When he applied for a promotion to shift coordinator, he wasn't selected. Emory sued, alleging disability discrimination.

The company argued that he wasn't "disabled" because his ailment wasn't substantially limiting. Its evidence: Emory's record of positive job reviews and that he graduated from high school, performed as a clown and volunteered as a firefighter.

An appeals court sided with the employee, allowing the case to proceed to trial. Its reasoning: Focusing on what Emory has achieved misses the mark. Despite his accomplishments, Emory still has trouble tying his shoes, cutting his food and he learns new things at a slower pace.

"That Emory, through sheer force of will ... and careful planning, is able to perform a wide variety of activities despite physical impairments does not mean that those activities are not substantially more difficult for him than they would be for an unimpaired individual," the court said. (Emory v. AstraZeneca Pharmaceuticals LP, No. 03-4751, 3rd Cir., 2005)

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