The Madwoman In The Attic: Mental Illness And The Americans With Disabilities Act Amendments Act Of 2008
We are what we work, so to speak. To put it more eloquently, as sociologist Peter Worsley said: "Work is central to our culture. When someone asks "What do you do?" they really mean "What work do you do?".[i] “It is widely recognized that the significance of employment is both practical and symbolic; the ability to work results not only in income but also in a sense of community participation and self-worth.”[ii] In our culture, one’s work is integrally tied to one’s sense of self and identity, and is one of the primary means by which people enter and make their mark on the world.
Yet people with disabilities are often limited in or eliminated from the workforce, and this is especially true for people with mental illness. One study estimates that 60-80 percent of people with mental illness are unemployed, and that for those who suffer the most severe forms of mental illness, that number approaches 90 percent.[iii] For those people with severe mental illness who do work, many are underemployed.[iv] By one estimate, one-third to one-half of people with severe mental illness lives at or near the federal poverty level.[v] Annually, approximately 25 billion dollars is spent on disability payments to people with mental illness.[vi] Meanwhile, studies show that work is a key factor to successfully managing mental illness, improving health and encouraging social inclusion.[vii]
This paper will discuss the limitations of the 1990 Act with regards to mental illness and employment discrimination, and how the 2008 Amendments Act has or may be expected correct some of these limitations. It will also discuss the problems caused by the stigmatization of mental illness in this country and how that has contributed to the limits of the legislation.
The Stigma of Mental Illness
“…[M]adness is both an intensely private experience and a profoundly social category…”[viii] These are complicated disorders that few people can understand unless they have the misfortune to experience them. As one study of patients with serious mental illness stated, it is difficult for “normal” people to comprehend “[t]he personal bewilderment and solitude of an hallucination, multiplied by poverty or rejecting others, is a prescription for social marginality, produced by and then reproducing the public and private nature of the disorderliness.”[ix] The social ills manifested by mental illness – namely poverty and violence – are only made worse by the symptoms of mental illness, creating a vicious circle.
Finding a way to break that cycle, and foster inclusion and understanding is tremendously important. But “US disability history has frequently been a story of stigma and of pride denied – particularly when ableism defines disability and people with disabilities as defective and inadequate.”[x] Literature, as well as history, is full of the insane or the undesirable people locked away from sight, like Rochester’s wife in Jane Eyre – the madwoman in the attic.[xi]
Believing the days of locking anyone with mental illness or disability away, many people are not aware of the way in which these stigmas are still perpetuated, that people with mental disabilities are other, dangerous, and should be kept separate for everyone’s safety.
Whatever stigma attaches to a physical disability, however, most scholars agree that people with mental disabilities are more feared, more stigmatized, discriminated against more often, and are seen as more likely to commit acts of violence than are people with physical disabilities. People with mental disabilities are seen as shameful, dangerous, and irresponsible, and discrimination against people with mental disabilities is widespread.[xii]
Interestingly, per one commentator, bias “may lessen if mental illness is coupled with a physical one. A recent study has indicated that persons with both a mental disability and a physical one do better in the employment arena than those with a mental disability alone. Experts postulate that this may be because the presence of the physical disability reduces the stigma of having a mental illness.”[xiii]
The dangers of the stigma attached to mental illness are not necessarily drawn along the disabled/non-disabled divide. When lobbying for the Americans with Disabilities Act, advocated encouraged divergent groups of people with disabilities to come together for a common cause, a fight against the general stigma against disabilities.[xiv] But several scholars have suggested that within the larger group of people with disabilities, those with mental illness feel stigmatized and that they are like the red-headed stepchild of the community.[xv]
The Effect of Stigma on ADA Claims
The stigma of mental illness can prevent victims of discrimination from obtaining relief under the ADA. First, employees may be reluctant to inform the employer that they have a mental illness, for fear of the stigma attached to the disease. The EEOC Interpretive Guidance states that “[e]mployers are obligated to make reasonable accommodation only to the physical or mental limitations resulting from the disability of an individual with a disability that is known to the employer. Thus, an employer would not be expected to accommodate disabilities of which it is unaware…In general, however, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”[xvi]
Second, a person with mental illness may deny they have a disease or not otherwise seek treatment or the protection of the law because they do not believe they are sick. Despite the science behind medical diagnoses, people often contest the “nature and meaning of the psychiatric diagnosis,” often because if it is true it will devastate.[xvii] One study respondent, faced with a diagnosis of schizophrenia, said “it’s like a death sentence.”[xviii]
Third, quite separate from the stigma of employers or the self-directed stigma of the employee, judicial stigma can act as an obstacle to plaintiffs in ADA employment discrimination cases.[xix] “Judges reflect and project the conventional morality of the community and their judicial decisions, in all areas of civil and criminal mental disability law, continue to reflect and perpetuate  stereotypes.”[xx]
With judges, and juries as well, there is another factor to consider: “fear of fakery.”[xxi] This is a certain disbelief attached to “invisible” illnesses, like mental illness, which is “widespread and entails the belief that despite the negative societal consequences, such as profound stigma attaching to mental illness, claimants manufacture mental sequelae in an attempt to mislead judges and jurors for their personal benefit.”[xxii] No one could ever want one of these illnesses, those who have them hide them for fear of stigma and fear, and yet juries are still willing to believe it’s a fake claim to get a quick payday.
The Americans with Disabilities Act of 1990
When Congress passed the Americans with Disabilities Act of 1990 (“ADA”), one of the legislation’s purposes was to combat the “discrimination against individuals with disabilities [that] persists in such critical areas as employment.”[xxiii] The ADA states that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.[xxiv]
The ADA defined a disability as “(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.”[xxv] But Congress failed to define these terms, leaving the courts to decide what constituted a “substantial limitation,” a “major life activity,” and even what impairments qualified as a disability under the ADA, leaving most cases decided not on the merits, but on the threshold issue of whether a claim had been stated at all.
Plaintiffs have to clear several hurdles. First, they must show the disorder they claim to suffer from limits a major life activity. Establishing a disorder can also present difficulties, because “[d]efining mental illness is fraught with difficulties including the fact that it is heavily dependent on context. In addition to the difficulty in defining mental illness, diagnosing mental illness is also problematic, in large part, because of the subjectivity involved.”[xxvi] “It is insufficient for individuals attempting to prove disability status ... to merely submit evidence of a medical diagnosis of an impairment” under the ADA.[xxvii] EEOC regulations promulgated a non-exclusive list including “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”[xxviii] This list, largely consisting of physical tasks, made it more difficult for plaintiffs with mental illness to meet the initial burden. It has been suggested that “the Regulation's list of major life activities reveals the supposition that the activities that are truly major in one's life are physical as opposed to mental. Moreover, it suggests that Congress, in enacting the ADA, and the EEOC, in enforcing Title I of the ADA, envisioned the disability paradigm as a physical one. Because of this emphasis on the major life activities that are affected by a physical disability, it is not surprising that courts  struggled with the question of what constitutes a major life activity with regard to mental illness.”[xxix]
Courts, in deciding what constitutes a major life activity, parsed concepts that might seem patently obvious to a lay person. A number of courts held that concentration was not major life activity.[xxx] Most courts, following vigorous analysis, concluded that eating is a major life activity.[xxxi] Some courts also accepted thinking as a major life activity.[xxxii] Sleeping, reproduction, sexual intercourse, and interacting with others were also accepted by many courts.[xxxiii]
Even if a plaintiff successfully established that she had an impairment limiting a major life activity, she still had to establish that it was a substantial limitation. The EEOC's regulations defined “substantially limits” as “(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”[xxxiv] The regulations included the following factors for evaluating when someone is substantially limited in a major life activity: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.”[xxxv] This standard created problems, not just in assessing whether the impairment was sufficiently severe, but especially issues of duration. Many mental illnesses are episodic in nature, and severe symptoms may only flare up occasionally.[xxxvi]
For example, while sleeping was accepted as a major life activity, the circuits differed as to the degree of disturbance necessary to constitute a substantial limitation. In one court, “[t]o establish a substantial limit in the major life activity of sleeping, a plaintiff ‘must present evidence, beyond vague assertions of a rough night's sleep or a need for medication, that his affliction is worse than that suffered by a large portion of the nation's adult population.” In another, “the inability to enjoy more than three or four hours of uninterrupted sleep does not qualify as a substantial limitation.”[xxxvii] Still again, the court said that sleeping only four to five hours per night was not a substantial limitation and that“[w]hile less than five hours sleep is not optimal, it is not significantly restricted in comparison to the average person in the general population.”[xxxviii] In the 10th Circuit, it was not a substantial limitation where a plaintiff was limited to two or three hours of sleep a night due to her depression.[xxxix]
From early in its enactment the ADA has been criticized as ineffective or inadequate in its ability to protect people with mental illnesses from discrimination in the workplace.[xl] These criticisms multiplied exponentially in 1999 when the Supreme Court handed down its ruling in Sutton, significantly narrowed the definition of disability and made it even more difficult for plaintiffs to prevail on the threshold question of whether or not they qualified for protection under the statute..
The ADA and Sutton
In Sutton v. United Air Lines, Inc., plaintiffs were twin sisters with severe myopia, but with corrective lenses had vision of 20/20 or better.[xli] Plaintiffs applied for jobs as commercial airline pilots, met all of the requirements and qualifications of the job, but were mistakenly invited for second interviews because they did not meet the airline’s vision requirements.[xlii] They were terminated from the interview process, and plaintiffs filed a claim with the EEOC alleging discrimination on the basis of their disabilities.[xliii]
The Supreme Court held that plaintiffs were not disabled within the meaning of the ADA, because the regulatory and statutory scheme, per the Court, did not intend plaintiffs to be assessed in their unmitigated state, and with corrective lenses, the plaintiffs were not limited in the major life activity of seeing.[xliv] The Court concluded this based on present tense of the verb the term of the statute “substantially limits” – that this tense meant that Congress intended plaintiffs to be assessed in their state at the time of the alleged discrimination.[xlv] The Court found that the EEOC interpretation would grant protection to millions of people unintended by Congress to be covered under the ADA, and held that “disability under the Act is to be determined with reference to corrective measures.”[xlvi]
In Albertson's, Inc. v. Kirkingburg, a companion case to Sutton, the plaintiff, a truck driver, was fired when it was discovered that he had monocular vision and was unable to see from his left eye, but was mistakenly certified under the Department of Transportation standards when hired.[xlvii] The Court found that the plaintiff’s brain had developed mechanisms to compensate for his lack of vision, “by making subconscious adjustments”, and that this should be considered a mitigating measure in the same class as medication or corrective lenses.[xlviii] The Court found that there was “no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems.”[xlix]
Three years later, in Toyota Motor Mfg., Kentucky, Inc. v. Williams, the Court found the plaintiff, who suffered from carpel tunnel syndrome, was not substantially limited in a major life activity because the lower court “analyzed only a limited class of manual tasks and failed to ask whether respondent's impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives.”[l] The Court reiterated its position that the terms “substantially limited” and “major life activity” “need to be interpreted strictly to create a demanding standard for qualifying as disabled.”[li] The Court said the lower court erred and “should not have considered respondent's inability to do such manual work in her specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks.”[lii] The Court held “that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives [and] [t]he impairment's impact must also be permanent or long term.”[liii]
Sutton’s Impact on Plaintiffs’ Mental Illness Claims
While these cases did not deal with mental illness, the holdings clearly impacted all plaintiffs’ ability to bring cases under the ADA. Many mental illnesses, while chronic, are not always persistent, and symptoms appear and disappear; cannot meet the Court’s standard for substantial limitation under Toyota Motor, because they cannot demonstrate long-term and invasive impact.[liv] As one commentator framed the issue: “The Sutton rule forces individuals with mental illness to choose between two equally unattractive situations: 1) remaining in a less functional unmitigated state, but thereby potentially having protection under the law, and 2) undergoing therapy, including medication, which, if “too” effective, could potentially remove them from the realm of disability and leave them unprotected at law, though the discrimination they face may continue.”[lv] But failure to seek treatment for the mental illness can also be grounds for losing the protection of the law, as the plaintiff will have failed to take steps to avoid the need for accommodations in the first place. For example, in Nunn v. Illinois State Bd. of Education, the plaintiff, suffering from bipolar disorder, did not take steps to control the disease and caused significant disruptions in the workplace.[lvi] The Court held that “a plaintiff cannot recover under the ADA if through plaintiff's own fault plaintiff fails to control an otherwise controllable illness.”[lvii]
In addition to the mitigation of psychotropic medications, plaintiffs also ran the risk of losing protection under the law if they found other ways to cope with their illnesses through therapy or sheer force of will under the holding in Albertson's, Inc. v. Kirkingburg. Several cases involving learning disabilities illustrate the problem. In Bartlett v. New York State Bd. of Law Examiners, the court found that the plaintiff was not limited in the major life activity of reading because when compared “to the “average person in the general population” (as  required to do by the ADA's implementing regulations,  Bartlett's history of self-accommodation had allowed her to achieve roughly average reading skills (on some measures) when compared to the general population.”[lviii]
Those who are able to overcome the symptoms of their illness and achieve academic and other successes may find themselves disadvantaged by the law. As with the mitigating effects of medication, it becomes a choice of seeking help but loosing protection of the law, or suffering the disability so as to be better protected from potential discrimination.
The Americans with Disabilities Act Amendments Act of 2008
Frustrated by the Court’s decisions in Sutton and Toyota Motor, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA) in 2008, to specifically overrule Sutton and Toyota, and fulfill “the Nation's proper goals regarding individuals with disabilities [so as to] to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”[lix] The ADAAA’s definition of disability…shall be construed in favor of broad coverage of individuals…to the maximum extent permitted…”[lx]
The ADAAA expanded the definition of major life activities.[lxi] With regards to substantial limitations, the ADAAA states that “an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”[lxii] Furthermore, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”[lxiii] “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures…”[lxiv]
The ADAAA should have opened the door to litigation, and given victims of employment discrimination a day in court. Establishing the existence of a disability and the substantial limitation of a major life activity can be easily dispensed with. The regulations clearly state that “it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.”[lxv]
When analyzing substantial limitations, courts are to consider “condition, manner, or duration may include, among other things, consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function.” In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual's impairment substantially limits a major life activity.”[lxvi]
Qualified Employees, Reasonable Accommodations and the Direct Threat Defense
However, after having dispensed with the threshold arguments and meeting the initial burden to plead an ADAAA case, plaintiffs with mental illnesses face a new hurdle; qualification for the job. Proving a disability is only the first step. The plaintiff must next demonstrate that he or she is qualified for the job. “The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”[lxvii] “The term essential function means the fundamental job duties of the employment position,” but “does not include the marginal functions of the position.”[lxviii] Evidence of whether a particular function is essential includes … [t]he employer's judgment as to which functions are essential.”[lxix] If qualified, the reasonable accommodation must not place an undue burden on the employer.[lxx]
Mental illnesses are not easily or predictably controlled, and treatment can change suddenly, so it is difficult to predict what accommodations will be required and when they may become necessary.[lxxi] Often, the only accommodation that could correct the problem is to allow floating sick days or a sudden leave of absence or extended leaves of absence. Such requests often will not be considered reasonable requests, or would be an undue burden upon the employer.
Attendance is usually considered an essential function of the job, “irregular attendance compromises essential job functions.”[lxxii] An unpaid medical leave of absence may be considered a reasonable accommodation under the ADA, but the “question is not whether the employee can perform the essential functions of the job during the leave period, [but] whether the leave of absence is likely to enable the employee, upon his return from leave, to resume performing the essential functions of the job.”[lxxiii] Additionally, “the ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation.”[lxxiv]
In Reed v. Maryland, Dep't of Human Resources, the Court stated that “the ADA does not require an employer to give a disabled employee an indefinite period of time to correct a disabling condition that renders him unable to work.”[lxxv] In Reed, the plaintiff repeatedly asked for extensions of his leave in order to “refocus” and find a medication that would work to manage his depression.[lxxvi] “A defendant does not violate the ADA by terminating the employment of a plaintiff whose disability would require the defendant “to wait indefinitely” for the plaintiff to be ready to work again.”[lxxvii] Unfortunately, for many who suffer from mental illness, finding an effective treatment plan takes time and is unpredictable. An employer is not required to accommodate this need.
Furthermore, some of the ways in which mental illness manifests are not behaviors that employers are required to tolerate. “The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee's misconduct, even if the misconduct is related to a disability.”[lxxviii] The EEOC has clearly said that employers “do not have to ... excuse violations of conduct rules necessary for the operation of your business. Example: You do not have to tolerate violence, threats of violence, theft or destruction of property, even if the employee claims that a disability caused the misconduct.”[lxxix]
For example, in Foley v. Morgan Stanley Smith Barney, the plaintiff allegedly took a computer when he was in the midst of a psychotic episode (a manifestation of his bipolar disorder) and thought Morgan Stanley was spying on him through his computer.[lxxx] He never disclosed his disorder nor did he ask for reasonable accommodations.[lxxxi] Despite having admittedly broken the rules, the plaintiff asked that he be accommodated by being reinstated, because he was unlikely to have another episode and was again qualified for his position.[lxxxii] The court said that to require Morgan Stanley to do so would be an undue burden and an unreasonable accommodation.[lxxxiii]
The EEOC its Interpretive Guidelines, the EEOC explains when an employer may appropriately assert the direct threat defense: where there exists a high probability of substantial harm to the individual, like the assessment that there exists a high probability of substantial harm to others, must be strictly based on valid medical analyses and/or on other objective evidence.[lxxxiv] This determination must be based on individualized factual data, using the factors discussed above, rather than on stereotypic or patronizing assumptions and must consider potential reasonable accommodations.[lxxxv] Generalized fears about risks from the employment environment, such as exacerbation of the disability caused by stress, cannot be used by an employer to disqualify an individual with a disability.[lxxxvi] As one court offers as an example, “a law firm could not reject an applicant with a history of disabling mental illness based on a generalized fear that the stress of trying to make partner might trigger a relapse of the individual's mental illness.”[lxxxvii] “Nor can generalized fears about risks to individuals with disabilities in the event of an evacuation or other emergency be used by an employer to disqualify an individual with a disability.”[lxxxviii]
But it is not solely the more extreme examples of misconduct that make it incredibly difficult to accommodate mental illness. Some circuits have held that “an employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position [and the] [a]bsence of such skills prevents the employee from being ‘otherwise qualified.’”[lxxxix] This can be a very real challenge to a person with a mental illness, who may be able to perform the technical skills of the job, but at certain times has problems interacting with others.
There is a real question as to whether the ADA and ADAAA can adequately protect persons with mental illnesses. Thus far, the criticisms and failures far overshadow any other results. The greatest problem is that the most effective accommodations for mental illness are also accommodations that will almost certainly be seen as undue burdens on employers. Leaves of absence and tolerating otherwise intolerable behavior are undoubtedly burdens. It’s not necessarily the fault of the statutory and regulatory scheme, which favors the physically disabled over the mentally disabled. The fact is that employers have the right to not tolerate behavior that is disruptive, illegal or imposes too great a financial burden or a burden on the daily operations of the company. Thus far, no one has found a way to balance two compelling competing interests – the managerial right versus the need to accommodate disabilities in the workplace. Until then, the ADA and the ADAA have failedmany plaintiffs with mental illnesses, and unfortunately but undoubtedly will fail many more to come.
[i] Peter Worsley, The New Introducing Sociology 273 (P. Worsley, ed., Penguin Books, 1987).
[ii] Karin A. Guiduli, Comment, Challenges for the Mentally Ill: The "Threat to Safety" Defense Standard and the Use of Psychotropic Medication Under Title I of the Americans with Disabilities Act of 1990, 144 U. Pa. L. Rev. 1149, 1187 n. 3 (1996).
[iii] Nat’l Alliance on Mental Health, Unemployment (January 2010), http://www.nami.org/Template.cfm?Section=About_the_Issue&Template=/ContentManagement/ContentDisplay.cfm&ContentID=114540.
[viii] Sue E. Estroff, et al., Everybody’s Got a Little Mental Illness: Accounts of Illness and Self among People with Severe, Persistent Mental Illnesses, 5 Med. Anthropology Q. 331 (Dec. 1991).
[ix] Id. at 331-32.
[x] Kim E. Nielsen, A Disability History of the United States 182 (2012).
[xi] Charlotte Bronte, Jane Eyre (Stevie Davies, ed., Penguin Classics 2006) (1847).
[xii] Jane Byeff Korn, Crazy (Mental Illness Under the ADA), 36 U. Mich. J.L. Reform 585, 586-87 (2003).
[xiii] Id. at 607-08.
[xiv] Wendy F. Hensel & Gregory Todd Jones, Bridging the Physical-Mental Gap: An Empirical Look at the Impact of Mental Illness Stigma on ADA Outcomes, 73 Tenn. L. Rev. 47 (2005).
[xv] Michael L. Perlin, The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?, 8 J.L. & Health 15, 20 (1994) (Even within the disability community, persons with mental illness are often the poor stepchild, and remain the last hidden minority.); Hensel & Jones, supra note 14 at 47; Korn, supra note 12 at 601-02.
[xvi] 29 C.F.R. § 1630.2 (emphasis added).
[xvii] Estroff, supra note 8 at 332.
[xix] See Korn, supra note 12 at 607.
[xx] Perlin, supra note 15 at 30.
[xxi] Michael L. Perlin, “The Borderline Which Separated You From Me “: The Insanity Defense, the Authoritarian, the Fear of Faking, and the Culture of Punishment, 82 IOWA L. REV. 1375, 1409 (1997)(for the idea that juries in criminal trials often believe the defendant is faking to avoid punishment).
[xxii] Camille A. Nelson, Starting Anew: The ADA's Disability with Respect to Episodic Mental Illness, 75 Miss. L.J. 1039, 1044 (2006)..
[xxiii] 42 U.S.C. § 12101(a)(3) (1990).
[xxiv] 42 U.S.C. § 12112(a).
[xxv] 42 U.S.C. § 12102.
[xxvi] Korn, supra note 12 at 597.
[xxvii] “Amyette v. Providence Health Sys., 388 Fed. Appx. 606, 607 (9th Cir.2010) (superseded by statute on other grounds).
[xxviii] 29 C.F.R. §1630.2(i)
[xxix] Korn, supra note 12 at 598.
[xxx] See eg Philips v. Wal-Mart Stores, Inc., 78 F. Supp. 2d. 1274, 1282 (S.D. Ala. 1999); Henderson v. New York Life, Inc., 991 F. Supp. 527, 537 (N.D. Tex. 1997).
[xxxi] See eg Lawson v. CSX Transp., Inc., 245 F.3d 916, 926 (7th Cir. 2001)( “a jury could find that the prescribed treatment Mr. Lawson must take to survive with diabetes causes symptoms that substantially limit the major life activity of eating.”); Fraser v. Goodale, 342 F.3d 1032, 1040 (9th Cir. 2003)(“ Not only is eating of comparative importance, but it is integral to daily existence, even more so than other activities specifically listed as major life activities. For instance, one can survive without seeing, hearing, speaking, or walking. One cannot survive (absent medical technology) without eating.”)(internal citation omitted).
[xxxii] See eg Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999)(“we conclude that it is reasonable to include thinking as a major life activity…Perhaps the activity is rather broad, but given the difficulty of specifying the different constituents of thinking or otherwise narrowing this central activity (especially when discussing the effects of psychosis or its subclinical manifestations).”
[xxxiii] McAlindin v. Cnty. of San Diego, 192 F.3d 1226 (9th Cir. 1999)(reproduction, sexual activity, sleeping, thinking); EEOC v. Chevron Phillips Chemical Co., L.P., 570 F.3d 606, 616 (5th Cir.2009)(sleeping).
[xxxiv] 29 C.F.R. § 1630.2(j)(1).
[xxxv] 29 C.F.R. § 1630.2(j)(2).
[xxxvi] See Nelson, Starting Anew, supra note 22.
[xxxvii] Pedroza v. Autozone, 536 F.Supp.2d 679, 696 (W.D.Tex.2008).
[xxxviii] Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316–17 (6th Cir. 2001).
[xxxix] Pack v. Kmart Corp., 166 F.3d 1300, 1306 (10th Cir. 1999).
[xl] See Jane Byeff Korn, Crazy (Mental Illness Under the ADA), 36 U. Mich. J.L. Reform 585 (2003); Michelle Parikh, Burning the Candle at Both Ends, and There Is Nothing Left for Proof: The Americans with Disabilities Act's Disservice to Persons with Mental Illness, 89 Cornell L. Rev. 721 (2004); Wendy F. Hensel & Gregory Todd Jones, Bridging the Physical-Mental Gap: An Empirical Look at the Impact of Mental Illness Stigma on ADA Outcomes, 73 Tenn. L. Rev. 47 (2005); Camille A. Nelson, Starting Anew: The ADA's Disability with Respect to Episodic Mental Illness, 75 Miss. L.J. 1039 (2006).
[xli] 527 U.S. 471, 475 (1999).
[xlii] Id. at 475-76.
[xliv] Id. at 482.
[xlvi] Id. at 486-88.
[xlvii] 527 U.S. 555, 559 (1999).
[xlviii] Id. at 565.
[xlix] Id. at 565-66.
[l] 534 U.S. 184, 187 (2002).
[li] Id. at 197.
[lii] Id. at 201.
[liii] Id. at 198.
[liv] Parkikh, supra note 40 at 740.
[lvi] 448 F.Supp.2d 997, 1001 (C.D.Ill.2006).
[lviii] 2001 WL 930792 (S.D.N.Y. Aug. 15, 2001)(internal quotations and citations omitted).
[lix] 42 U.S.C. § 12101 (2008).
[lx] 42 U.S.C.A. § 12102 (2008).
[lxv] 29 C.F.R. § 1630.2.
[lxvii] 42 U.S.C. § 12111(8).
[lxviii] 29 C.F.R. § 1630.2(n)(1).
[lxix] 29 C.F.R. § 1630.2(n)(3)(i).
[lxxi] Parikh, supra note 40 at 742.
[lxxii] Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir.2012).
[lxxiii] Shim v. United Air Lines, Inc., 2012 WL 6742529 (D. Haw. Dec. 13, 2012).
[lxxv] 2013 WL 489985 (D. Md. Feb. 7, 2013)(internal quotations and citations omitted).
[lxxviii] Jones v. Am. Postal Workers Union, 192 F.3d 417, 429 (4th Cir.1999).
[lxxx] 2013 WL 795108 (S.D. Fla. Mar. 4, 2013).
[lxxxiv] 29 C.F.R. pt. 1630, app. § 1630.2(l ) (citations omitted).
[lxxxvii] Nelson v. City of New York, 2013 WL 4437224 (S.D.N.Y. Aug. 19, 2013).
[lxxxix] Williams v. Motorola, Inc., 303 F.3d 1284, 1290-91 (11th Cir. 2002); Weigert v. Georgetown Univ., 120 F. Supp. 2d 1, 14 (D.D.C. 2000)(“Numerous courts have held that technical skills and experience are not the only essential requirements of a job and that stability and the ability to interact with co-workers and supervisors can constitute an essential function.”).