42 U.S.C. § 12111 — Definitions

Page 8240 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12103 (D) An impairment that is episodic or in remission is a disability if it would substan- tially limit a major life activity when ac- tive. (E)(i) The determination of whether an im- pairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as— (I) medication, medical supplies, equip- ment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and coch- lear implants or other implantable hearing devices, mobility devices, or oxygen ther- apy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or aux- iliary aids or services; or (IV) learned behavioral or adaptive neu- rological modifications. (ii) The ameliorative effects of the miti- gating measures of ordinary eyeglasses or contact lenses shall be considered in deter- mining whether an impairment substan- tially limits a major life activity. (iii) As used in this subparagraph— (I) the term ‘‘ordinary eyeglasses or con- tact lenses’’ means lenses that are in- tended to fully correct visual acuity or eliminate refractive error; and (II) the term ‘‘low-vision devices’’ means devices that magnify, enhance, or other- wise augment a visual image. (Pub. L. 101–336, § 3, July 26, 1990, 104 Stat. 329; Pub. L. 110–325, § 4(a), Sept. 25, 2008, 122 Stat. 3555.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. The ADA Amendments Act of 2008, referred to in par. (4)(B), is Pub. L. 110–325, Sept. 25, 2008, 122 Stat. 3553. Section 2 of the Act, relating to the findings and pur- poses of the Act, is set out as a note under section 12101 of this title. For complete classification of this Act to the Code, see Short Title of 2008 Amendment note under section 12101 of this title and Tables. AMENDMENTS 2008—Pub. L. 110–325 amended section generally. Prior to amendment, section consisted of pars. (1) to (3) de- fining for purposes of this chapter ‘‘auxiliary aids and services’’, ‘‘disability’’, and ‘‘State’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. § 12103. Additional definitions As used in this chapter: (1) Auxiliary aids and services The term ‘‘auxiliary aids and services’’ in- cludes— (A) qualified interpreters or other effective methods of making aurally delivered mate- rials available to individuals with hearing impairments; (B) qualified readers, taped texts, or other effective methods of making visually deliv- ered materials available to individuals with visual impairments; (C) acquisition or modification of equip- ment or devices; and (D) other similar services and actions. (2) State The term ‘‘State’’ means each of the several States, the District of Columbia, the Common- wealth of Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust Territory of the Pacific Is- lands, and the Commonwealth of the Northern Mariana Islands.’’. (Pub. L. 101–336, § 4, as added Pub. L. 110–325, § 4(b), Sept. 25, 2008, 122 Stat. 3556.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as an Effective Date of 2008 Amendment note under section 705 of Title 29, Labor. Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. SUBCHAPTER I—EMPLOYMENT § 12111. Definitions As used in this subchapter: (1) Commission The term ‘‘Commission’’ means the Equal Employment Opportunity Commission estab- lished by section 2000e–4 of this title. (2) Covered entity The term ‘‘covered entity’’ means an em- ployer, employment agency, labor organiza- tion, or joint labor-management committee. (3) Direct threat The term ‘‘direct threat’’ means a signifi- cant risk to the health or safety of others that cannot be eliminated by reasonable accommo- dation. (4) Employee The term ‘‘employee’’ means an individual employed by an employer. With respect to em- ployment in a foreign country, such term in- cludes an individual who is a citizen of the United States. Page 8241 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12111 (5) Employer (A) In general The term ‘‘employer’’ means a person en- gaged in an industry affecting commerce who has 15 or more employees for each work- ing day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each work- ing day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person. (B) Exceptions The term ‘‘employer’’ does not include— (i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or (ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of title 26. (6) Illegal use of drugs (A) In general The term ‘‘illegal use of drugs’’ means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term 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. (B) Drugs The term ‘‘drug’’ means a controlled sub- stance, as defined in schedules I through V of section 202 of the Controlled Substances Act [21 U.S.C. 812]. (7) Person, etc. The terms ‘‘person’’, ‘‘labor organization’’, ‘‘employment agency’’, ‘‘commerce’’, and ‘‘in- dustry affecting commerce’’, shall have the same meaning given such terms in section 2000e of this title. (8) Qualified individual The term ‘‘qualified individual’’ means an individual who, with or without reasonable ac- commodation, can perform the essential func- tions of the employment position that such in- dividual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what func- tions of a job are essential, and if an employer has prepared a written description before ad- vertising or interviewing applicants for the job, this description shall be considered evi- dence of the essential functions of the job. (9) Reasonable accommodation The term ‘‘reasonable accommodation’’ may include— (A) making existing facilities used by em- ployees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modi- fied work schedules, reassignment to a va- cant position, acquisition or modification of equipment or devices, appropriate adjust- ment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individ- uals with disabilities. (10) Undue hardship (A) In general The term ‘‘undue hardship’’ means an ac- tion requiring significant difficulty or ex- pense, when considered in light of the fac- tors set forth in subparagraph (B). (B) Factors to be considered In determining whether an accommoda- tion would impose an undue hardship on a covered entity, factors to be considered in- clude— (i) the nature and cost of the accommo- dation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provi- sion of the reasonable accommodation; the number of persons employed at such facil- ity; the effect on expenses and resources, or the impact otherwise of such accommo- dation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the busi- ness of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the com- position, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal re- lationship of the facility or facilities in question to the covered entity. (Pub. L. 101–336, title I, § 101, July 26, 1990, 104 Stat. 330; Pub. L. 102–166, title I, § 109(a), Nov. 21, 1991, 105 Stat. 1077; Pub. L. 110–325, § 5(c)(1), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT The effective date of this subchapter, referred to in par. (5)(A), is 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as an Effective Date note below. The Controlled Substances Act, referred to in par. (6)(A), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables. This chapter, referred to in par. (10)(B)(i), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. CONSTITUTIONALITY For the constitutionality of section 101 of Pub. L. 101–336, see note under section 12112 of this title. AMENDMENTS 2008—Par. (8). Pub. L. 110–325 struck out ‘‘with a dis- ability’’ after ‘‘individual’’ in heading and the first two places appearing in text. Page 8242 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12112 1991—Par. (4). Pub. L. 102–166 inserted at end ‘‘With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–166 inapplicable to con- duct occurring before Nov. 21, 1991, see section 109(c) of Pub. L. 102–166, set out as a note under section 2000e of this title. EFFECTIVE DATE Pub. L. 101–336, title I, § 108, July 26, 1990, 104 Stat. 337, provided that: ‘‘This title [enacting this sub- chapter] shall become effective 24 months after the date of enactment [July 26, 1990].’’ § 12112. Discrimination (a) General rule No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, em- ployee compensation, job training, and other terms, conditions, and privileges of employ- ment. (b) Construction As used in subsection (a), the term ‘‘discrimi- nate against a qualified individual on the basis of disability’’ includes— (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such ap- plicant or employee because of the disability of such applicant or employee; (2) participating in a contractual or other arrangement or relationship that has the ef- fect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe bene- fits to an employee of the covered entity, or an organization providing training and ap- prenticeship programs); (3) utilizing standards, criteria, or methods of administration— (A) that have the effect of discrimination on the basis of disability; or (B) that perpetuate the discrimination of others who are subject to common adminis- trative control; (4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; (5)(A) not making reasonable accommoda- tions to the known physical or mental limita- tions of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the busi- ness of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered en- tity to make reasonable accommodation to the physical or mental impairments of the em- ployee or applicant; (6) using qualification standards, employ- ment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered enti- ty, is shown to be job-related for the position in question and is consistent with business ne- cessity; and (7) failing to select and administer tests con- cerning employment in the most effective manner to ensure that, when such test is ad- ministered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflect- ing the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure). (c) Covered entities in foreign countries (1) In general It shall not be unlawful under this section for a covered entity to take any action that constitutes discrimination under this section with respect to an employee in a workplace in a foreign country if compliance with this sec- tion would cause such covered entity to vio- late the law of the foreign country in which such workplace is located. (2) Control of corporation (A) Presumption If an employer controls a corporation whose place of incorporation is a foreign country, any practice that constitutes dis- crimination under this section and is en- gaged in by such corporation shall be pre- sumed to be engaged in by such employer. (B) Exception This section shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer. (C) Determination For purposes of this paragraph, the deter- mination of whether an employer controls a corporation shall be based on— (i) the interrelation of operations; (ii) the common management; (iii) the centralized control of labor rela- tions; and (iv) the common ownership or financial control, of the employer and the corporation.