Among the most frustrating claims of disability for landlords, businesses and clear thinking lawyers are those involving mental impairments – invisible disabilities whose very existence is hard to determine. For this blog we’re stepping away from strictly new cases to look at some older cases that help define the circumstances under which a mental impairment like anxiety or depression is truly disabling. The key, we will see, is whether there is a substantial limitation on one or more major life activities.
Bialko v. Quaker Oats Co. 434 Fed.Appx. 139 (3rd Cir. 2011) is an employment case under Title I of the ADA, but its reasoning applies to any ADA case because all parts of the ADA share a single definition of disability. The plaintiff claimed to suffer from anxiety and panic attacks. The Court’s analysis began with a simple, critical, and often ignored principle: “To be ‘disabled’ under the ADA requires more than simply a diagnosed impairment.” Id. at 142. Individuals seeking accommodation based on mental impairments often produce a diagnosis that they are suffering from anxiety or depression. That diagnosis, standing alone, does not prove the individual is disabled, and any landlord or business is entitled to more.
The “more” required by the statute is that one or more major life activities be substantially limited by the impairment. In Bialko the plaintiff lined up the usual activities supposedly limited by otherwise invisible mental impairments; “working, thinking, concentrating, and socializing.” The Court rejected each. The crucial comparison for the Court, which is incorporated into the ADA regulations, defines substantially limited as being based on a comparison “to most people in the general public.” This is an often overlooked part of the definition of “substantially limited.” Shyness is not a disability because many people have trouble socializing. The inability to think like Einstein or focus like an NFL quarterback does not mean one is substantially limited in these life activities. Finally, the inability to handle certain kinds of high intensity work is not a substantial limit on the ability to work if other kinds of jobs can be performed.
Of course many invisible disabilities are claimed to limit life activities that are themselves hard to measure. Depression, anxiety and PTSD may cause insomnia, for example. It is clear, however, that not all insomnia is considered a substantial limitation on the life activity of sleeping. This observation from the Sixth Circuit shows just how disrupted sleep must be before the major life activity of sleeping is substantially limited:
Our circuit precedent has consistently held that sleeping problems like Neely’s—“getting only 2 to 3 hours of restful sleep per night, falling into micro sleeps during the day … snoring, and extreme difficulty breathing while sleeping,” —fail to constitute a substantial limitation on a major life activity.
Neely v. Benchmark Family Servs., 640 Fed. Appx. 429 (6th Cir. 2016). This is a recognition that insomnia has many causes and that most people in the general public experience insomnia from time to time.
Another life activity often implicated in invisible disabilities is “concentrating.” The test for whether “concentrating” is substantially limited can come from looking at the individual’s ability to function generally. In Trautman v. Time Warner Cable Texas, LLC, 2017 WL 5985573, at *5 (W.D. Tex. Dec. 1, 2017) the court rejected a claim that the plaintiff was disabled because she could not concentrate while driving in heavy traffic because “she is able to work, care for her four children, run errands and grocery shop.” A comparison to the general population is also critical. Black v. Natl. Bd. of Med. Examiners, 281 F. Supp. 3d 1247, 1250 (M.D. Fla. 2017) the Court found the plaintiff was not disabled because her high scores in medical school and on examinations precluded any argument that she was limited in her ability to concentrate when compared to the general population despite a diagnosis that she suffered from ADHD.
Finally, a look at what it is like for a person to be truly disabled is a helpful reminder that it requires an uncommon level of limitation in major life activities. Nelson v. Long Reef Condominium HOA, 2016 WL 4154708 (D.V.I. 2016) provides an example of the kinds of evidence needed to support a claim of disability. The plaintiff, in addition to testifying about her inability to think, concentrate and socialize, provided evidence that for three years she was unable to leave her condominium to work. She had been treated by two different doctors and a clinical social worker, with one of her treating physicians finding that she needed a prescription anti-depressant. In short, she was not leading a normal life, and even though at the time of the lawsuit she was able to work it appeared this required both constant medication and therapy.
The de-stigmatization of mental health problems has been a positive social development; unfortunately, it has encouraged individuals to exploit a diagnosis of depression or anxiety as a means to avoid pet deposits and no-pet policies or travel with their pets for free. By taking the requirement that an impairment substantially limit a major life activity seriously businesses can distinguish between those who are genuinely entitled to the protection of the ADA and FHA and those who are simply faking it to gain some advantage.