LEGAL PROTECTION

Patients diagnosed with macular degeneration
may be protected by the ADA
from the time of diagnosis
regardless of the severity of their vision impairment.

By Maryrita Dobiel, Esq.

The Americans with Disabilities Act

PUBLIC LAW 101-336 JULY 26, 1990

INTRODUCTION

Barriers to employment, transportation, public accommodations, public services, and telecommunications have imposed staggering economic and social costs on American society and have undermined well-intentioned efforts to educate, rehabilitate, and employ individuals with disabilities. By breaking down these barriers, the purpose of the Americans with Disabilities Act (ADA) is to enable society to benefit from the skills and talents of individuals with disabilities. This will allow us all to gain from their increased purchasing power and ability to use it, and will lead to fuller, more productive lives for all Americans. The Americans with Disabilities Act gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications. Fair, swift, and effective enforcement of this landmark civil rights legislation is a high priority of the Federal Government.

THE ADA OFFERS LEGAL PROTECTION TO PATIENTS DIAGNOSED WITH MACULAR DEGENERATION

Macular degeneration, including age-related macular degeneration, is an incurable eye disease which is the number one cause of legal blindness in Americans over the age of 55. With the aging of the "baby boom" generation, it is reasonable to assume that the number of cases of macular degeneration will increase significantly in the years ahead. In fact, recent studies indicate that the population of people over the age of 65 in the United States will be six times higher than the 1990 statistics by the year 2025. As a result, the chances are great that you or someone you know has or will be diagnosed with this disease. It is important, therefore, for you to know about the Americans with Disabilities Act (ADA), and the protections it affords qualified individuals with a disability.

THE ADA

The ADA prohibits discrimination by an employer against "a qualified individual with a disability." It applies to private employers, state and local governments, employment agencies, labor unions and joint labor management committees with 15 or more employees, including part-time employees, working for 20 or more calendar weeks in the current or preceding calendar year.

The nondiscrimination requirements of the ADA apply to all aspects of the employment process including applications, testing, hiring, assignments, evaluation, disciplinary actions, training, promotion, medical examinations, layoff/recall, termination, compensation, leave and benefits. If an employer makes a decision with respect to any of these aspects of employment based on the fact that you suffer from the disease macular degeneration, you may be the victim of illegal discrimination under the ADA.

The Equal Employment Opportunity Commission (EEOC) is charged with enforcing the ADA. The EEOC receives and investigates charges of discrimination and seeks to resolve through conciliation any founded charge of discrimination, including obtaining full relief for the affected individual. The EEOC may bring suit or issue a "right to sue" letter to the person making the charge of discrimination.

How do you know if you are covered by the ADA? You must be a qualified person with a disability. Because each person’s disability and employment circumstance is different, you ultimately must consult a lawyer who specializes in disability law or other qualified professional for a definitive answer. However, the ADA sets forth the basic criteria against which all cases are measured.

The ADA defines a person with a disability as someone who: 1) has a physical or mental impairment that substantially limits one or more of her/his major life activities; 2) has a record of such an impairment; or 3) is regarded as having such an impairment. Major life activities are those an average person can perform with little or no difficulty, such as walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself and working. Whether a particular disability substantially limits a major life activity is determined by the effect an impairment has on an individual’s life activity.

Disability is only one part of the equation under the ADA. A person with a disability also must be qualified for the job. First, the person with a disability must meet the necessary prerequisites for the job, such as education, work experience, training, skills, licenses, certificates and any other job-related requirements. Essentially, he/she must be otherwise qualified for the job. Second, the person with a disability must be able to perform the essential functions of the job, with or without reasonable accommodation.

The assistance of a lawyer who specializes in disability law or another qualified professional is needed to determine the essential functions of a particular job. He/she will analyze the particular job using the guidelines set forth in federal regulations.

A reasonable accommodation is a modification or adjustment to a job, an employment practice, or the work environment that enables a qualified individual with a disability to enjoy an equal employment opportunity. The purpose of a reasonable accommodation is to overcome unnecessary barriers that prevent or restrict employment opportunities for otherwise qualified individuals with disabilities. For example, accommodations may include reallocation or redistribution of marginal job functions; modifying equipment or devices; providing qualified readers; or allowing an employee to provide equipment or devices that an employer is not required to provide. An employer is not required to provide a reasonable accommodation if it would impose an undue hardship on the employer’s business.

THE ADA AND MACULAR DEGENERATION

Macular degeneration is a physiological disorder that can impair your vision. If you are diagnosed with the disease, you may meet one or more of the ADA criteria for disability. If you currently suffer from impaired vision caused by macular degeneration, the ADA can protect you from discrimination by an employer because of your impairment.

What if you are diagnosed with macular degeneration but you still have 20/20 vision? Can your employer make adverse decisions about your employment based on the possibility that your vision will be impaired in the future?

In enacting the ADA, the United States Congress was concerned not only with those who suffer from actual mental or physical impairments, but also with those who are perceived as having disabilities. Therefore, the definition of a person with a disability includes a person who is regarded as having a physical or mental impairment that substantially limits one or more of her/his major life activities. With this category, Congress intended to protect people who are "perceived" as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers’ compensation costs or acceptance by co-workers and customers. An employer who makes an adverse employment decision based on such concerns without a legitimate, non-discriminatory reason for the action taken may violate the ADA.

In its Technical Assistance manual on the Employment Provisions (Title 1) of the ADA, the EEOC has described individuals who may have an impairment which is not substantially limiting, but are treated by employers as having such an impairment. For example, an employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled. This may be a case where an employer violated the ADA.

A person diagnosed with macular degeneration, but with no actual visual impairment, could face a similar situation. A current or prospective employer who knows of the diagnosis may fear her/his future responsibilities under the ADA in the event the employee’s vision deteriorates. If the employer makes an adverse decision concerning the employee based on the fear, he/she may be in violation of the ADA.

CONCLUSION

The incidence of macular degeneration is likely to increase as the "baby boom" generation ages. An employer who makes an adverse decision affecting an individual diagnosed with macular degeneration which is based on that diagnosis may be in violation of the ADA. Your best protection is knowledge of your rights under the ADA. Contact the EEOC for further information at 1-800-669-EEOC (voice) or 1-800-800-3302 (TDD). You also can write to the EEOC Office of Communications and Legislative Affairs, 1801 L Street N.W., Washington, D.C. 20507. If you think you are a victim of discrimination because you have been diagnosed with macular degeneration, you should consult with a lawyer who specializes in disability law to learn if you are a qualified individual with a disability entitled to protection under the ADA.

The AMDF wishes to thank the staff of Senator Edward M. Kennedy (D-MA.),
both in Boston, Massachusetts and in Washington, D.C.,
for their help in preparing this analysis.