To Be Disabled or Not

In Features, Roving Rose, Travel by Rosemary Musachio

To be disabled or not? That is the

Roving Rose Knows

question. Because of the Americans with Disabilities Act, it seems that everyone wants to be disabled so they can get privileges or benefits. While this may embrace having a disability, it may also belittle the rights of those disabled individuals who really need some sort of accommodation.

Take the 350 female employees who sued their employers for firing them after taking off to seek vitro fertilization. They won $1.5 million because the courts ruled that their infertility is a disability. They based their ruling on how the ADA defines a disability: “a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.”

Certainly, being infertile does substantially limit the major life activity of giving birth. Yet, unlike “standard disabilities,” being infertile does not pose a major obstacle to daily living.

Or take the Chapsky v. Baxter V. Mueuller case where the court ruled that being pregnant is also considered a disability. The court held that a terminated employee was covered by the ADA merely because she was pregnant at the time of her discharge.

Although being pregnant may not substantially limit a life activity, the employer may have perceived the employee’s pregnancy as limiting her work, thus making it a disability,

With the ADA’s broad definition of disability, anyone can claim that he or she has a disability and can reap the benefits from the ADA. Granted, almost everyone has some “disability,” whether it’s wearing reading glasses because you are far sighted, wearing platform shoes because you are short, having a hearing aid because you cannot hear, or being in a wheelchair because you can’t walk. But which ones really apply to the ADA? Which ones really deserve its benefits?

Now, because some judge ruled that infertile women are legally disabled, they’re probably eligible for handicapped parking spots and even try to apply for Social Security and other government benefits.

If infertile women and others who claim to be disabled, such as those who have HIV, take advantage of the ADA, those of us who have “old fashioned” disabilities might experience more difficulty to obtain the rights that we so rightly deserve.

Funds, housing, transportation, and opportunities might become scarce if everyone who cries “discrimination” gets on the ADA bandwagon.

I’m not saying that discrimination against infertility, pregnancy, or HIV should go unnoticed. However, these medical conditions and all other disabilities should be prioritized according to their needed accommodations.

For example, the ADA could have stated that persons with mobility impairments, such as those who use wheelchairs, crutches, or have difficulty walking, have sole priority to accessible public transportation, housing, and parking spaces. They, along with persons who have hearing, learning, or visual impairments, must also have priority over financial government benefits since they may have more difficulty providing for themselves than someone who is infertile or has HIV.

Suffering from infertility, HIV, or any other hidden or temporary medical condition should only be addressed under Title 1, Section 102 of the ADA, the section which describes what constitutes job discrimination.

Or perhaps they should be covered under a separate law, one that explicitly focuses on medical conditions not requiring the full package that the ADA offers. The law could be called the Americans with Hidden or Temporary Medical Conditions Act (AHTMCA). Not only would the AHTMCA prevent persons with hidden or temporary medical conditions from exploiting the ADA, it may also decrease the number of lawsuits filed due to disability discrimination.

The AHTMCA could clearly state that an employer should not terminate the employment of an infertile or pregnant woman or any other non-disabled individual upon seeking medical treatment.

How to define a hidden or temporary medical condition would be fairly easy. It could be defined as “a condition that may need medical attention but doesn’t permanently limit one’s daily living.” Once again, however, the rub would be which conditions would fall under the definition.

Infertility and pregnancy would certainly fit the definition, but would HIV, drug and alcohol addiction, depression, or even frequent colds fall under the same category?

By far, the simplest solution is for all of us to be more compassionate, tolerant, and understanding of one another’s imperfect conditions. But since that fairy tale won’t completely come true, we can only hope that Congress can rectify the ambiguity of the ADA so those who really deserve its benefits can continue to have them.
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