Who Can Make An Accessibility Claim Under the ADA

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Title III of the ADA was intended to remove barriers and make places of public accommodation for all type of individuals with disabilities and not just those that are wheel chair bound. The primary focus under the ADA is persons with physical disabilities and includes a very broad range of disabled individuals.

The congressional committee reports and the Justice Department look to a comparison between a disabled person and an average person. The Justice states that a person with a disability is one whose important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison with most people.

The ADA statute defines disability as follows:

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 definition is obviously overbroad and appears to set no limitations other than it limits or impairs one or more major life activities. The Justice Department which is charged with interpreting the ADA gives further definition about what is a disability. The just department interprets the phrase "physical or mental impairment" as meaning as follows:

(i) Any 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; digestive; genitourinary; hemic and lymphatic; skin; and endocrine;

(ii) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities;

(iii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism;

(iv) The phrase physical or mental impairment does not include homosexuality or bisexuality.

The Justice Department provides further definition and defines major life activities. For purposes of the ADA in public accessibility, the phrase "major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

The Justice Department then defines the phrase "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.

For purposes of the ADA Title III, per the Justice Department, the phrase "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 by a private entity as constituting such a limitation;

(ii) 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

(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by a private entity as having such an impairment.

The Justice Department also specifically excludes various conditions as not covered under the ADA Title III as disabilities, specifically the following are excluded from the "term disability":

(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current illegal use of drugs.

Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).a

Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term "illegal use of drugs'' does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

Individual with a disability means a person who has a disability. The term "individual with a disability'' does not include an individual who is currently engaging in the illegal use of drugs, when the private entity acts on the basis of such use.

Minor impairments are not disabilities, some specific impairments that are not included are infected finger, heartburn, simply myopia, left handedness, normal sensitivity to tobacco smoke, fear of heights, varicose veins, trick knee, crossed eyes, and usually being overweight.

The United States Supreme Court added further clarification by stating that corrective measures such as medication or glasses have to be taken into account in determining whether or not the individual qualifies as disabled person under the ADA.

Article Source: http://depositarticles.com/

Attorbey Arnold Hernandez represents clients San Marcos, Escondido, Vista, Palm Springs, El Centro, Riverside, and the counties of San Diego, Imperial, Riverside, Los Angeles, San Bernardino, and Los Angeles in car accidents, overtime claims & other civil matters. www.arnoldhernandez.com

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