The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


ADA: Definition of Disability - In General

July 19, 2000

Dear :

This responds to your June 27, 2000, letter concerning the Americans with Disabilities Act of 1990 (ADA).

You ask whether an employee's suggested or required referral to an Employee Assistance Program (EAP) creates the perception of a disability covered by the ADA. You also ask whether an employer may give an employee who has experienced conduct or performance problems the option of following the recommendations, including treatment, of a required referral to an EAP in lieu of discipline such as probation or termination.

As you know, the ADA prohibits employers from discriminating against a qualified individual with a disability on the basis of disability. A "qualified individual with a disability" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position the individual holds or desires. A "disability" is a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or being regarded as having such an impairment. A person is regarded as having a substantially limiting impairment if she or he has an impairment that is not in fact substantially limiting but is treated as such by the employer, has an impairment that is substantially limiting only as a result of others' attitudes, or has no impairment but is treated by the employer as having a substantially limiting one.

Whether an employer regards a person as having a substantially limiting impairment depends on the facts and circumstances of the particular situation. It is unlikely that a mere referral to an EAP, by itself, would be sufficient to establish that an employer treated an individual as having a substantially limiting impairment. Simply referring someone to an EAP probably would not constitute regarding the person as having a substantially limiting impairment if the employer routinely referred people to EAP for reasons unrelated to impairments (such as grief or marriage counseling). See Gazaway v. Makita U.S.A., Inc., 11 F. Supp. 1281 (D. Kan. 1998), aff'd, 182 F.3d 931 (10th Cir. 1999) (supervisor's suggestion that employee seek EAP counseling after employee was involved in fatal traffic accident insufficient to establish employer regarded individual as having substantially limiting impairment).

On the other hand, a referral to an EAP in combination with other relevant evidence could raise an inference that the employer regarded the person as having a substantially limiting impairment. See Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996), cert. denied, 520 U.S. 1162 (1997) (reasonable jury could infer that employee was regarded as having a

substantially limiting impairment where employer held two meetings to discuss employee's behavior, asked employee if he was having any problems, strongly encouraged employee to seek counseling through EAP, and received several doctors' reports diagnosing employee's depression, anxiety, and stress).

An employer may hold an individual with a disability to the same legitimate conduct and performance standards to which it holds all other employees. Thus, although it may do so, an employer does not have to offer a "firm choice" or a "last chance agreement" to an employee who performs poorly or who has engaged in misconduct because of a disability. ("Firm choice" or "last chance agreements" involve excusing past performance or conduct problems resulting from disability in exchange for an employee's receiving treatment). See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship (March 1, 1999) at n. 95 (employer may, but does not have to, offer firm choice or last chance agreement to employee who performs poorly or engages in misconduct because of alcoholism).

The employer, however, may not treat an individual with a disability less favorably than it treats similarly situated individuals without disabilities. Thus, the employer may not discipline an individual with a disability for conduct or performance problems if it does not impose similar discipline on other employees with similar problems. Likewise, the employer may not force the individual with a disability to choose between treatment or EAP participation and discipline in situations where other employees would not be disciplined.

This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in your letter should not be construed as agreement with those matters.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division


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