JURISDICTION CITATION STATUTORY DEFINITION COMMENTS CASE LAW

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1 JURISDICTION CITATION STATUTORY DEFINITION COMMENTS CASE LAW United States -- Americans with Disabilities Act of 1990 (ADA), 42 U.S.C , et seq. 42 U.S.C.A (2), 12210(a), (b), 12211; 29 C.F.R. 1630(i), (j)(1), (j)(3)(1). Statute: The term disability means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. The term disabled or disability shall not apply to an individual solely because that individual is a transvestite. 42 U.S.C The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, but may include an individual who is participating or who has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or who has otherwise been rehabilitated successfully and is no longer engaging in such use, or who is incorrectly regarded as engaging in illegal drug use. For purposes of the definition of disability, homosexuality and bisexuality are not impairments and as such are not disabilities under this Act. The term disability shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs. Regulations: Substantially limits means: Unable to perform a major life activity that the average person in the general population can perform; or Significantly restricted as to the condition, manner or duration under which an individual can perform As has been extensively reviewed, this definition has been strictly construed to exclude many persons with disabilities from its coverage. In Sutton v. United Airlines, 527 U.S. 471 (1999), the U.S. Supreme Court held that the phrase substantially limits requires that the individual be presently not potentially or hypothetically substantially limited in order to demonstrate a disability. Accordingly, the Supreme Court ruled in Sutton that individuals must be considered in their mitigated or treated state when deciding whether they are substantially limited. See also Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); Albertson s, Inc., v. Kirkingburg, 527 U.S. 555 (1999). The Sutton Court also limited the major life activity of working. In Sutton, the U.S. Supreme Court ruled that a substantial limitation in working requires a significantly reduced ability to work and found reasonable the EEOC s regulation requiring a significant restriction in the ability to perform a class or broad range of jobs. According to the Court, the individual must be disqualified from more than Page 1 of 63

2 a particular major life activity as compared to the average person in the general population. Major life activities includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Substantially limited in the major life activity or working means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. one type of job, a specialized job, or a particular job of choice. Importantly, these standards are required not only when the person alleges an actual limitation in working, but also when the person alleges that she is regarded by an employer as limited in working. According to the Sutton Court ruled, an employer is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job. In Toyota Motor Manufacturing v. Williams (2002), the U.S. Supreme Court ruled that the phrase substantial limitation in a major life activity must be interpreted strictly to create a demanding standard for qualifying as disabled, and that substantial limitation means prevent or severely restrict. That case also limited the major life activity of performing manual tasks to those tasks that are of central importance to most people s daily lives. Page 2 of 63

3 Alabama Ala.Code (6). The following words and phrases used in this chapter shall have the following respective meanings: (6) HANDICAP. With respect to a person: a. A physical or mental impairment which substantially limits one or more of the person's major life activities; b. A record of having such an impairment; or c. Being regarded as having an impairment. The term handicap excludes current, illegal use of or addiction to a controlled substance as defined by law. State law tracks federal statutory language, but still reflects older terminology of handicap as opposed to disability. The definition specifically excludes the current, illegal use of or addiction to a controlled substance as defined by law, other limitations enumerated in the federal statute are not included. No state or federal court has as yet construed this definition. Alaska Ak. Stat (12), (13). In this chapter: (12) physical or mental disability means (A) a physical or mental impairment that substantially limits one or more major life activities; (B) a history of, or a misclassification as having, a mental or physical impairment that substantially limits one or more major life activities; (C) having (i) a physical or mental impairment that does not substantially limit a person's major life activities but that is treated by the person as constituting such a limitation; (ii) a physical or mental impairment that substantially limits a person's major life activities only as a result of the attitudes of others toward the impairment; or (iii) none of the impairments defined in this paragraph but being treated by others as having such an impairment; or (D) a condition that may require the use of a prosthesis, special equipment for mobility, or service animal; The Alaska Human Rights Act is modeled on federal law, but broadens the definition to include a condition that may require the use of a prosthesis, special equipment for mobility, or a service animal. No exclusions are specifically mentioned in the statute. Under Alaska law an employee need not be receiving medical treatment to be classified as disabled under the discrimination statute. Hewitt v. Union Oil Co. of California, Inc., 44 Fed.Appx. 827, 828 (9th Cir. 2002) (unpublished). (13) physical or mental impairment means (A) physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, Page 3 of 63

4 digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; (B) mental or psychological disorder, including mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities[.] Arizona Ariz. Rev. Stat (2). In this article, unless the context otherwise requires: 2. Disability means, with respect to an individual, except any impairment caused by current use of illegal drugs, any of the following: (a) A physical or mental impairment that substantially limits one or more of the major life activities of the individual. (b) A record of such a physical or mental impairment. (c) Being regarded as having such a physical or mental impairment. State definition incorporates federal statutory language, and excludes any impairment caused by the current use of illegal drugs. Because there is limited Arizona case law regarding discrimination under the Arizona Civil Rights Act, and the ACRA is modeled after federal discrimination statues, Arizona courts look to federal law as persuasive authority. Francini v. Phoenix Newspaper, Inc., 188 Ariz. 576, 582 (1996). The hurdles thus imposed can be steep for employees pursuing disability discrimination claims because of the state courts strict interpretation of substantial impairment. [A]n individual is not handicapped under the ACRA if his impairment [actual or perceived,] only interferes with his ability to perform a particular job for a particular employer. Bogue v. Better- Bilt Aluminum Co., 179 Ariz. 22, 24 (1994). To succeed on a claim under the Act, a plaintiff must demonstrate a substantial limitation, whether genuine or perceived. Capitano v. State Page 4 of 63

5 of Arizona, 178 Ariz. 599, 602 (1993). (high frequency hearing loss from which plaintiff suffered did not qualify as disability or handicap under the Arizona Civil Rights Act.) Because we find that the ACRA requires an impairment that 'substantially restricts or limits' general employability, trivial or minor impairments that do not affect an individual's general ability to secure, retain, or advance in employment do not qualify the individual as handicapped. Bogue at 28.). Arkansas Ark. Code Ann (3). For the purposes of this subchapter: (3) Disability means a physical or mental impairment that substantially limits a major life function, but disability does not include: (A) Compulsive gambling, kleptomania, or pyromania; (B) Current use of illegal drugs or psychoactive substance use disorders resulting from illegal use of drugs; or (C) Alcoholism[.] State law tracks first prong only of federal statutory language. Arkansas definition excludes the same conditions as the federal as those exempted from coverage under the ADA. No state or federal court has as yet construed this definition. California Cal. Gov t Code 12926(h), (i), (k), (l), (as amended by AB 2222, aka the Prudence Kay Poppink Act, effective As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context: (h) Medical condition means either of the following: (1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. (2) Genetic characteristics. For purposes of this section, State law includes and exceeds federal statutory language. Neither mental disability nor physical disability definition includes sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, (2003): Of particular relevance here is that the FEHA in section used the term limits, not the federal law's substantially limits language, before and after its Page 5 of 63

6 January 1, 2001). genetic characteristics means either of the following: (A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder. (B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder. (i) Mental disability includes, but is not limited to, all of the following: (1) Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section: (A) Limits shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult. (C) Major life activities shall be broadly construed and shall include physical, mental, and social activities and working. (2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services. current unlawful use of controlled substances or other drugs. amendment by the Poppink Act. Not only did the Poppink Act of 2000 leave unchanged the limits test in the FEHA, it also amended other, non-feha, statutes to delete the term substantial from the limitation test these statutes had used since This pattern of Legislative action compels our conclusion that in 2000 the Legislature intended not to make a retroactive change, but only to clarify the degree of limitation required for physical disability under the FEHA. See also Green v. State, 42 Cal.4th 254, (2007): California has prohibited employment discrimination based on physical handicap since In 1980, that prohibition and the definition of physical handicap to include impairment of sight, hearing, or speech, or impairment of physical ability were incorporated into the newly enacted FEHA. In amending the FEHA in significant part, including replacing the former term physical handicap with the term physical disability, the Legislature stated: It is the Page 6 of 63

7 (3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2). Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. (k) Physical disability includes, but is not limited to, all of the following: (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity. For purposes of this section: (i) Limits shall be determined without regard to mitigating measures such as medications, assistive intent of the Legislature in enacting this act to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA]. In 2000, the Legislature also declared: Although the federal act provides a floor of protection, this state's law has always, even prior to passage of the federal act, afforded additional protections. (Citations omitted.) See also E.E.O.C. v. United Parcel Service, Inc.[Hogya], 424 F.3d 1060 (9th Cir. 2005) (finding that employees with monocular vision are limited in seeing and working and thus disabled under FEHA). Hogya on whether employees limited in seeing: Intervenors have explained that their monocularity-and, in particular, their inability to perform stereopsis [the process of depth perception]- makes a variety of close-range activities difficult for them. Judging depths at near distances is a significant aspect of the major life Page 7 of 63

8 devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. (iii) Major life activities shall be broadly construed and includes physical, mental, and social activities and working. (2) Any other health impairment not described in paragraph (1) that requires special education or related services. (3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2). (6) Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. activity of seeing. As the affidavits and testimony demonstrate, near-field depth perception is important to a number of activities that sight normally is used to perform. Intervenors demonstrated that seeing, and a variety of tasks for which seeing is commonly used, are made difficult for them because of their monocularity and consequent inability to perform stereopsis. FEHA requires no more. 424 F.3d at Hogya on whether employees limited in working: FEHA's definition of disability is broader because, among other things, it encompasses a limitation in a particular employment, which must be something less than a class of jobs or a broad range of jobs. Plaintiffs demonstrated that they are limited in working as commercial delivery drivers, not only because they are excluded from working as full-time package car drivers for UPS, but also because they are excluded from any commercial driving position that requires DOT or state Page 8 of 63

9 (l) Notwithstanding subdivisions (i) and (k), if the definition of disability used in the Americans with Disabilities Act of 1990 (Public Law ) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (i) or (k), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (i) and (k). certification. Thus, even if particular employment is interpreted more broadly than single position with a single employer, Plaintiffs' monocularity limits their ability to work in the occupation of commercial delivery driver. 424 F.3d at The Legislature finds and declares as follows: (a) The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (Public Law ). Although the federal act provides a floor of protection, this state's law has always, even prior to passage of the federal act, afforded additional protections. (b) The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. (c) Physical and mental disabilities include, but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. In addition, the Legislature has determined that the definitions of physical disability and Page 9 of 63

10 mental disability under the law of this state require a limitation upon a major life activity, but do not require, as does the Americans with Disabilities Act of 1990, a substantial limitation. This distinction is intended to result in broader coverage under the law of this state than under that federal act. Under the law of this state, whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity, regardless of federal law under the Americans with Disabilities Act of Further, under the law of this state, working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments. (d) Notwithstanding any interpretation of law in Cassista v. Community Foods (1993) 5 Cal.4th 1050, the Legislature intends (1) for state law to be independent of the Americans with Disabilities Act of 1990, (2) to require a limitation rather than a substantial limitation of a major life activity, and (3) by enacting paragraph (4) of subdivision (i) and paragraph (4) of subdivision (k) of Section 12926, to provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity. Connecticut Conn. Gen. Stat. 1-1f(a), (b), 46a-8; 46a-51(1), (13), (15), (19), (20), (60). Section 46a-8: For the purposes of this chapter The term person with a disability means any person who has a physical, mental, emotional or other disability or dysfunction which constitutes a significant obstacle to such person's ability to function normally in society and includes those persons defined as developmentally disabled under Public Law and any subsequent amendments thereto. Connecticut did not amend its statutes to track the ADA. Thus, although the law requires an impairment, it has never required a substantial limitation of a major life activity to demonstrate disability. One of the most interesting aspects of the state s detailed definition is that contained in 46a-8, which Unlike the ADA, the Connecticut Fair Employment Practices Act (CFEPA) provides no cause of action for discrimination on basis of perceived disability. Americans with Disabilities Act of 1990, Section 3(2)(C), so a plaintiff who wishes to proceed on a regarded as Page 10 of 63

11 For purposes of sections 3-10e, 4a-60, subdivision (12) of section 38a-816 and sections 46a-58, 46a-60, 46a-64, 46a- 70 to 46a-73, inclusive, 46a-75, 46a-76 and a: (a) An individual is blind if his central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or if his visual acuity is greater than 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees; (b) An individual is physically disabled if he has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device. As used in section 4a-60a and this chapter: (1) Blind refers to an individual whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or whose visual acuity is greater than 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees; (13) Mental retardation means mental retardation as defined in section 1-1g; (15) Physically disabled refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or defines disability as a condition which constitutes a significant obstacle to an individual s ability to function in society. The statute contains neither the record of prong nor the regarded as prong of the ADA. Connecticut General Statute 46a- 60 of the Connecticut General Statutes Annotated outlines discriminatory employment practices prohibited under state law. theory may assert it only under the ADA. Pare v. City of Bristol, 386 F.Supp.2d 43, 49, n.3 (D.Conn. 2005). Connecticut courts review federal precedent concerning employment discrimination for guidance in enforcing [the state's] antidiscrimination statutes. Conte v. New Haven. Bd. of Educ., 2003 WL , 4, n.4, (Conn.Super.), quoting Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103 (1996). Section 46a-60 protects employees from discrimination based on, inter alia, mental disability. Section 46a-51(20) explicitly defines mental disability within the context of section 46a-60 discrimination. Therefore, in this case, Connecticut is the final arbiter of its own laws ; Johnson v. Manson, 196 Conn. 309, 319, (1985), cert. denied, 474 U.S. 1063, reh. denied, 475 U.S (1986); and this court need not refer to federal courts' interpretations of a federal statute to determine who is a qualified individual with respect to section 46a-60. Page 11 of 63

12 device; (19) Learning disability refers to an individual who exhibits a severe discrepancy between educational performance and measured intellectual ability and who exhibits a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in a diminished ability to listen, speak, read, write, spell or to do mathematical calculations; As a result, because the plaintiff alleges that she is an employee with a mental disability, as defined in section 46a-51(20), the plaintiff has sufficiently alleged a cause of action under CFEPA for failure to provide a reasonable accommodation. Conte, WL , at 4. (20) Mental disability refers to an individual who has a record of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. Delaware 19 Del. Code 722(3)(4) As used in this subchapter, unless the context otherwise requires: (3) Handicap means any condition or characteristic that renders a person a handicapped person as defined in subdivision (4) of this section. (4) Handicapped person means any person who: a. Has a physical or mental impairment which substantially limits 1 or more major life activities; b. Has a record of such an impairment; or c. Is regarded as having such an impairment. As used in this subdivision the term: 1. Major life activities means functions such as, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. State law tracks both ADA language and regulatory language of the Rehabilitation Act of Substantial limitation must be related to employability Definition excludes any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others. No state or federal court has as yet construed this definition. 2. Has a record of such impairment means has a history of, or has been misclassified as having, a mental or Page 12 of 63

13 physical impairment that substantially limits major life activities. 3. Is regarded as having an impairment means: (i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation; (ii) has a physical or mental impairment that substantially limits major life activities because of the attitudes of others; or (iii) does not have a physical or mental impairment but is treated as having such an impairment. This term is intended to be interpreted in conformity with the federal Rehabilitation Act of 1973, [FN1] as amended, and, consistent with 728 of this title, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment. Enforcement of this subchapter by persons qualifying for protection solely under subdivision of this section shall be deferred until the issuance of the Secretary's final regulation. 4. Substantially limits means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining or advancing in employment because of a handicap. 5. Handicapped person shall not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others. District of Columbia D.C. Code (5a) The following words and terms when used in this chapter have the following meanings: District ordinance tracks federal statutory language. No federal court has as yet construed this definition. (5a) Disability means a physical or mental impairment that substantially limits one or more of the major life Page 13 of 63

14 activities of an individual having a record of such an impairment or being regarded as having such an impairment. Florida Fla. Stat (7)(a)(b) As used in sections , the term: (7) Handicap means (a) A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment; (b) A person has a developmental disability as defined in section State law tracks federal statutory language. Definition is contained in the housing provisions of the Florida Statute -- no definition in included in employment provisions (section ). While the [Florida Civil Rights Act] does not define the word handicap, the Fifth District has looked to the Fair Housing Act which gives the term... the following meaning: A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment.... Razner v. Wellington Regional Medical Center, Inc., 837 So.2d 437,440 (Fla.App. 4 Dist.,2002) When reviewing a claim of adverse employment action based on handicap discrimination, courts construe the Act in accordance with the Americans with Disabilities Act... and related regulations. Greene v. Seminole Elec. Co-op., Inc. 701 Do.2d 646,647 (Fla.App. 5 Dist., 2007) (reversing lower court ruling that the FCRA only applied to individuals with actual handicaps, not Page 14 of 63

15 those with perceived disabilities, and holding that morbid obesity can be an impairment that substantially limits... [the] major life activity of working if the employer so regards the obesity.) Georgia Ga. Code Ann. 34-6A- 2(1)(3)(5)(7)(8) As used in this chapter, the term: (1) Disability means any condition or characteristic that renders a person an individual with disabilities but shall not include addiction to any drug or illegal or federally controlled substance nor addiction to the use of alcohol. (3) Individual with disabilities means any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities and who has a record of such impairment. The term individual with disabilities shall not include any person who is addicted to the use of any drug or illegal or federally controlled substance nor addiction to the use of alcohol. (5) Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (7) Physical or mental impairment means: (A) Any physiological disorder or condition or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine; or (B) Mental retardation and specific learning disabilities. State law generally tracks federal statutory language, but does not include a regarded as prong. Substantial limitation must be related to employability. Definition excludes addiction to any drug or illegal or federally controlled substance or addiction to the use of alcohol. The Georgia Supreme Court has held that Georgia s definition is narrow than that of the ADA. The language of the [Georgia Equal Employment for the Handicapped Code] is similar to that of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. Hennly v. Richardson, 264 Ga. 355, 357 (1994). The fact that the necessary qualifications for satisfying the definition of handicapped individual in the Georgia Code are set forth in the conjunctive rather the disjunctive, as is the case with the federal statute, and the fact that under Georgia law a person who is regarded as being handicapped even though he is not actually physically or mentally handicapped is not handicapped for purposes of Page 15 of 63

16 (8) Substantially limits means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing in employment because of a disability. this statute, indicates that the definition under Georgia law is not as broad as that under federal law. Hennly, 264 at 357, n.2 Further, the state s court of appeals has held that Georgia's definition embraces significantly fewer mental conditions than its federal counterpart. Appellant maintains this definition [34-6A-2(7)] of mental impairment is openended and ambiguous so as to require the court's construction, and that when the rules of construction are applied and expert testimony is adduced the definition can be read to include claustrophobia and depression as mental impairments. We disagree, as we find the statute clearly and unambiguously manifests the General Assembly's intent to exclude emotional and mental disorders of the type experienced by Richard Bowers from the coverage of the GEEHC. Contrary to his argument, OCGA 34-6A- 2(7) clearly limits the definition of mental Page 16 of 63

17 impairment to any 'physiological disorder or condition or anatomical loss affecting' certain body systems or '[m]ental retardation and specific learning disabilities.' Bowers v. Estep, 204 Ga.App. 615, 619 (Ga.App., 1992). The American Psychiatric Association characterizes claustrophobia as a simple phobia, which is a form of anxiety disorder, not a physiological disorder or condition. Diagnostic and Statistical Manual of Mental Disorders, , pp (3d ed. rev. 1987). Depression is defined as a mood disorder that is not due to any other physical or mental disorder. Id. at 213. Neither disorder can be identified as either mental retardation or a learning disability. Id. Hawaii Haw. Rev. Stat As used in this chapter: Disability means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment. The term does not include alcohol or drug use that impairs a person's activities or threatens the property or safety of others. State law tracks federal statutory language. Definition excludes alcohol or drug use that impairs a person's activities or threatens the property or safety of others. No state or federal court has as yet construed this definition. Page 17 of 63

18 Idaho Idaho Code (15) In this chapter, unless the context otherwise requires: Disability means a physical or mental condition of a person, whether congenital or acquired, which constitutes a substantial limitation to that person and is demonstrable by medically accepted clinical or laboratory diagnostic techniques. A person with a disability is one who (a) has such a disability, or (b) has a record of such a disability, or (c) is regarded as having such a disability. State law generally tracks federal statutory language, but requires substantial limitation to that person, rather than of a major life activity. Disability must be clinically demonstrable by medically accepted diagnostic techniques, Courts interpret the standards for disability under the ADA and the [Idaho Human Rights Act (IHRA)] identically. Accordingly, when the Court refers to one statute, its reference impliedly includes the other. Ward v. Sorrento Lactalis, Inc., 392 F.Supp.2d 1187, 1190 (D.Idaho, 2005); Davenport v. Idaho Dept. of Env. Quality 496 F.Supp. 2d 861, 870 (D.Idaho 2006) (noting that the purpose of the Idaho HRA is to provide for execution within the state of the policies embodied in Titles I and III of the ADA.) Illinois 775 Ill. L.C.S. 5/1-103(I); cf 56 Ill. Admin. Code (b); When used in this Act, unless the context requires otherwise, the term: (I) Handicap. Handicap means a determinable physical or mental characteristic of a person, including, but not limited to, a determinable physical characteristic which necessitates the person's use of a guide, hearing or support dog, the history of such characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder and which characteristic: (1) For purposes of Article 2 [Employment] is unrelated to the person's ability to perform the duties of a particular job or position and, pursuant to Section of this Act, a person's illegal use of drugs or alcohol is not a handicap; Law does not require a substantial limitation of a major life activity, and by its own terms is not confined to conditions which are grave or extreme. However, law expressly excludes conditions which are transitory and insubstantial, and which are not significantly debilitating or disfiguring. To be covered, condition must be determinable by recognized diagnostic techniques. In the employment context, a [I]nfection with HIV is a determinable physical characteristic resulting from a disease which has been held to be a qualifying condition under civil rights laws. Raintree Health Care Center v. Illinois Human Rights Com'n, 173 Ill.2d 469, 672 N.E.2d 1136 (Ill. 1996). The plain language of the statute clearly states that a person is handicapped if he/she has a determinable physical or mental characteristic which may Page 18 of 63

19 (2) For purposes of Article 3 [Real Estate], is unrelated to the person's ability to acquire, rent or maintain a housing accommodation; (3) For purposes of Article 4 [Financial Services], is unrelated to a person's ability to repay; (4) For purposes of Article 5 [Public Accommodations], is unrelated to a person's ability to utilize and benefit from a place of public accommodation. Section What Constitutes a Handicap The following paragraphs... interpret the various clauses within the definition [set forth in Section 1-103(I)] b) Determinable Physical or Mental Characteristic: 1) The definition is not confined to only those physical and mental conditions which are grave or extreme in nature. However, it is interpreted as excluding: A) conditions which are transitory and insubstantial, and B) conditions which are not significantly debilitating or disfiguring. 2) To be covered, a condition must be determinable by recognized clinical or laboratory diagnostic techniques. Section Who is Protected Against Handicap Discrimination a) Section 1-103(I) of the Act provides that a person is protected against discrimination if he/she: 1) is currently afflicted with a condition which constitutes a handicap, or 2) has a history of affliction with such a condition; or 3) is perceived by an employer, employment agency or labor organization as being or having been so afflicted. b) An individual has a history of a handicapping person's illegal use of drugs or alcohol is not considered a handicap. Although law protects only those workers whose conditions are unrelated to the person's ability to perform the duties of a particular job or position, this language has been construed to require that the assessment be done following accommodation. An earlier version of the law required a severe barrier upon the ability of an individual to perform major life functions. See Lyons v. Heritage House Restaurants, Inc., 89 Ill.2d 163, 168, 170, 432 N.E.2d 270 (Ill. 1982) (finding uterine cancer not protected where plaintiff failed to allege that her cancer substantially hindered her in major life activities, and citing federal Rehabilitation Act regulations). Amendments in 1980 changed the definition d eliminated the reference to limitations on major life activities. See id. at 165 ( It should be noted that after the conduct in question here occurred the Equal Opportunities for the Handicapped Act was replaced by the Illinois Human result from disease. This Human Rights Act definition of a handicapped person has been interpreted to include an employee diagnosed with HIV (Raintree Health Care Center v. Illinois Human Rights Comm'n, 173 Ill.2d 469, 220 Ill.Dec. 124, 672 N.E.2d 1136 (1996)); an employee who suffered from dysmenhorrea due to endometriosis (Illinois Bell Telephone v. Human Rights Comm'n, 190 Ill.App.3d 1036, 138 Ill.Dec. 332, 547 N.E.2d 499 (1989)); and an employee who had a history of heart disease, but had recovered (Kenall Manufacturing Co. v. Illinois Human Rights Comm'n, 152 Ill.App.3d 695, 105 Ill.Dec. 520, 504 N.E.2d 805 (1987)). Lake Point Tower, Ltd. v. Illinois Human Rights Com'n, 291 Ill.App.3d 897, , 684 N.E.2d 948 (Ill. App. 1997) (upholding administrative determination that non-hodgkins lymphoma was handicap). See also Anderson v. Modern Metal Products, 305 Ill.App.3d 91, 98, 711 N.E.2d 464 (Ill.App. 1999) (upholding administrative determination Page 19 of 63

20 condition if he/she is restored or recovered from a prior affliction or if the individual's symptoms are in remission. The mentally restored, those who have had heart attacks or cancer, and persons with orthopedic findings may be examples; they are protected against discrimination which is based upon their medical histories. The perception of a handicapping condition may occur with regard to an individual who has been misdiagnosed, misclassified, or erroneously viewed as one who is or has been so afflicted; such an individual similarly is protected against discrimination based upon that erroneous perception. Such a perception may also occur in connection with a person whose current non-disabling condition, e.g. hypertension, is viewed as creating the potential for future disability. Rights Act (Ill.Rev.Stat., 1980 Supp., ch. 68, par et seq.), which uses a substantially different definition. It is clear that any conduct occurring hereafter will be governed by that act. ); see also Lake Point Tower, Ltd. v. Illinois Human Rights Com'n, 291 Ill.App.3d 897, 684 N.E.2d 948 (Ill. App. 1997) (reviewing statutory history). that complainant's myofascial pain syndrome was transitory in nature and not a handicap). See also Illinois Dept. of Corrections v. Illinois Human Rights Com'n, 298 Ill.App.3d 536, 699 N.E.2d 143 (Ill. App. 1998) (evidence supports Commission's finding that shoulder condition was a determinable physical characteristic resulting from an injury). With many claims of physical handicap, it is relatively easy to identify the cause of the handicapping condition. If someone is deaf, blind, cannot walk or speak, or suffers from a well known disease such as cancer, asthma, or renal failure, it is apparent that the person so afflicted has a condition which rises to the level of a physical handicap and thus is entitled to protection under the Act. In the Matter of Francisco R. Carlin v. Edsal Manufacturing Co., Ill. Hum. Rts. Comm'n, Charge No. 1992CN3428; In the Matter of Sheila Jackson v. Evanston Hospital Corp., Ill. Hum. Rts. Comm'n, Charge No. 1991CN2519. Page 20 of 63

21 Indiana Burns Ind. Code Ann (a)(b) (a) As used in this chapter, disability means with respect to an individual: (1) a physical or mental impairment that substantially limits at least one of the major life activities of the individual; (2) a record of an impairment described in subdivision (1); or (3) being regarded as having an impairment described in subdivision (1). State definition tracks federal statutory language, and exclusions mirror those found in Title III. No state or federal court has as yet construed this definition. (b) As used in this subsection, illegal use of drugs means the use of drugs the possession or distribution of which is unlawful under the Controlled Substances Act. The term does not include the use of a drug taken under the supervision of a licensed health care professional or another use authorized by the Controlled Substances Act (21 U.S.C. 812) or other provisions of federal law. For purposes of this chapter, an individual shall not be considered disabled solely because the individual is currently engaging in the illegal use of drugs. However, this subsection does not exclude as an individual with a disability an individual who: (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; (2) is participating in a supervised rehabilitation program and is no longer engaging in the illegal use of drugs; or (3) is erroneously regarded as engaging in the illegal use of drugs but is not engaging in the illegal use of drugs. It is not a violation of this chapter for a person or other entity covered by this chapter to adopt or administer reasonable policies or procedures, including but not Page 21 of 63

22 limited to drug testing, designed to ensure that an individual described in subdivision (1) or (2) is no longer engaging in the illegal use of drugs. Nothing in this section shall be construed to encourage, prohibit, restrict, or authorize testing for the illegal use of drugs. (c) Notwithstanding subsection (b), an individual shall not be denied health services or services provided in connection with drug rehabilitation on the basis of the current illegal use of drugs if the individual is otherwise entitled to those services. (d) For purposes of this chapter, an individual shall not be considered disabled solely on the basis of the following: (1) Homosexuality. (2) Bisexuality. (3) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders. (4) Compulsive gambling, kleptomania, or pyromania. (5) Psychoactive substance use disorders resulting from current illegal use of drugs (as defined in section 14 of this chapter). Iowa Iowa Admin. Code rs (216, 2-5); Iowa Code 216.2(5) ( substantial disability ) (216): Disability discrimination in employment: (1) The term substantially handicapped person shall mean any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. 8.26(2) The term physical or mental impairment means: a. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; State law tracks federal statutory language, but definition refers only to disability discrimination in employment. Administrative code broadly defines both physical and mental impairments Physical impairments include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: No state or federal court has as yet construed this definition. Page 22 of 63

23 musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or b. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 8.26(3) The term major life activities means functions such as caring for one s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. Mental impairments include any mental or psychological disorder, including emotional or mental illness. 8.26(4) The term has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. 8.26(5) The term is regarded as having an impairment means: a. Has a physical or mental impairment that does not substantially limit major life activities but that is perceived as constituting such a limitation; b. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or c. Has none of the impairments defined to be physical or mental impairments, but is perceived as having such an impairment (5): When used in this chapter, unless the context otherwise requires: Disability means the physical or mental condition of a person which constitutes a substantial disability, and the condition of a person with a positive human immunodeficiency virus test result, a diagnosis of acquired Page 23 of 63