Plugging the Dike and Opening the Flood Gates -- the ADA and A.B. 2222

California’s A.B. 2222 defines disability as “any mental or physical disability as defined in Section 12926 of the Government Code.” Government Code Section 12926 provides separate but similar definitions for both mental and physical disability. Both require that the impairment “limits a major life activity,” with “limits” defined as:

“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.

“SUBSTANTIALLY LIMITED IN A MAJOR LIFE ACTIVITY”

In several Supreme Court cases, the Court placed the burden on plaintiffs to document the limitations their disabilities caused. See School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987); Sutton v United Airlines, Inc., 527 U.S. 471 (1999); and Albertson’s, Inc. v Kirkingburg, 527 U.S. 555 (1999). The Arline case which involved the California Rehabilitation Act, is a useful comparative case for several reasons: 1) the definition of “handicapped individual” under the Rehabilitation Act is identical to the definition under the ADA; 2) the language of the ADA and associated regulations borrow extensively from Rehabilitation Act law; and 3) Congress provided that courts should not construe the ADA as providing lesser standards than those under the Rehabilitation Act and its accompanying regulations. In Arline, the Supreme Court found that plaintiff Arline’s tuberculosis represented an impairment “serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment.” However, Arline’s hospitalization occurred more than 20 years before the adverse employment action took place. Since Arline, the lower federal courts have commented on this determination. The 5th Circuit, for example, in Burch v. Coca-Cola Co., 119 F.3d 305, 317 (5th Cir. 1997) opined:

[ Arline] cannot be construed to obviate the requirement, explicit in the ADA and its implementing regulations, that purported conditions be examined to ascertain whether a specific condition substantially limited a major life activity. The ADA requires an individualized inquiry beyond the mere existence of a hospital stay. Although the Court in Arline noted that the plaintiff’s hospitalization established a record of impairment, the defendant had conceded that her acute tuberculosis had been substantially limiting … [The contrary reading of Arline] would work a presumption that any condition requiring temporary hospitalization is disabling — a presumption that runs counter to the very goal of the ADA.