Thursday, February 09, 2006

New Article on Interacting With Others as a Major Life Activity

New on Westlaw: Patrick A. Hartman, "Interacting with Others" as a Major Life Activity Under the Americans with Disabilities Act, 2 Seton Hall Circuit Rev. 139 (2005). From the introduction:

On any given day, almost all people come in contact with at least one or two other people, though most of us usually come in contact with many more. This contact occurs in employment settings, social settings, educational settings, and public settings, such as the street or grocery store. This contact that we have with other people can be characterized as "interacting with others" and is part of the inherent nature of humans as social beings.

Interacting with others can involve many abilities, including speaking, seeing, hearing, listening, understanding, walking, communicating, and others. These are all abilities that most people can perform to some extent, and that most people take for granted. Although some people may be better at these abilities than other people, one's skill or desire (as opposed to capability) in performing any of these abilities does not affect the fact that it is being performed or, in the context of contact with others, the fact that the person is interacting with others.

Most of the abilities listed above are considered "major life activities" under the Americans with Disabilities Act. Nonetheless, there is no judicial consensus on whether "interacting with others" itself is a major life activity. Three circuits -- the First, Ninth, and Second -- have addressed the issue of whether interacting with others is a major life activity. The First Circuit has said that it is not, while the Ninth and Second Circuits have said that it is.

This article argues that interacting with others is a major life activity.


Blogger EquiisSavant said...

Sam, you are as expert on the ADA as I. I am sincerely interested in your thoughts on this issue as it applies to autism. Isn't autism sort of a "per se" category in which the disabled individual is substantially limited in the major life activity of "interacting with others?" The substantial limitations in exactly this activity are among the very defining characteristics (diagnostic criteria, eve, See DSM-IV) of autism, and this is not scientifically demonstrable by the lack of brain cells that activate on fMRIs in the emotional centers of the autistic brain, which give rise to what many describe as the autistic lacking a "theory of mind" or, in other words, the ability to understand what other people are thinking in order to interact with them. I think if "interacting with others" were not to be upheld as a "major life activity" under the ADA, the problem that would arise is the DOJ regulation giving the list that leaves this out as a "major life activity" would be deemed arbitrary and capricious under Chevron, as not consistent with the ADA statutes that are intended to protect ALL qualified individuals with disabilities -- including autistics. Another way of saying it is if autistics were excluded from protection under the ADA by this method, then the analysis would violate Sutton, Toyota, Albertson's, etc. by relegating autistics to a category per se excluded from the protection of the ADA, when the Supreme Court has said there are no per se classifications because an "individualized assessment" is required. I think one of the problems we see with all the non-disabled attorneys and judges who try o analyze the ADA is they try to make decisions based onlabels and generalizations (even thought this is prohibited by the ADA), rather than functional impairments; certainly in a DMS-IV Multiaxial Diagnosis, "interacting with others" (social interaction) IS one of the factors frequently analyzed, so how this would be simply ipso facto ruled not to be a "major life activity" is like divorcing law from the scientiic expertise required under most States and the Federal Rules of Evidence. In any event, a very interesting and timely article. Thank you for posting it!! Maybe the Circuit's don't yet realze it, but after the IDEA, NO educated autistic is going to take the exclusion of the entire class of autistics from the protections of the ADA lying down. 1 in 166 people born in America are autistic. And almost ALL of us are substantially limited in "interacting with others" -- THAT's why we continue to be excluded from virtually all facets of American life.

11:49 AM  

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