Epilepsy as a Disability

Many courts have recognized epilepsy as a disability.

For many years, people with epilepsy have been considered disabled under state and federal anti-discrimination laws. For example, there have been numerous successful cases brought under the federal Rehabilitation Act of 1973 recognizing that people with seizure disorders are disabled under the law. These cases recognized the stigma associated with seizure disorders and that many people with a history of epilepsy are considered disabled because of the varied nature of seizures. The Foundation worked very hard for passage of the ADA, to broaden the scope of disability protection and to address the needs of people with seizure disorders. Despite this history, and in light of the recent Supreme Court rulings, there has been some question as to whether epilepsy is considered a disability under the Americans with Disabilities Act.

Supreme Court says you must prove a substantial disability.

In its recent opinions, the Supreme Court determined that people whose conditions are controlled by medication will not be considered to have a disability under the ADA unless they can demonstrate a substantial disability despite the treatment. It held that people with corrected myopia (nearsightedness) are not covered by the ADA; neither is a person with hypertension controlled by medication, nor a person with monocular vision, where the brain has compensated for sight in one eye.

This does not mean that all people who take medication are automatically barred from protection under this statute.

People with seizures will need to demonstrate that, even though they are taking medications to control their conditions, they are still substantially impaired in their ability to work or perform some other daily life activity, such as mobility (e.g., driving), sleeping, self-care, reproduction. You may also be able to show that the treatment itself causes a substantial disability, e.g., medications interfering with cognition, memory, reproduction. The Supreme Court mentioned that just because you take medications for your condition, the condition may still be substantially limiting or you may suffer side effects from the medication which are substantially limiting.

People with epilepsy are among those Congress intended to protect with the ADA.

The Supreme Court recognized that there are 43 million Americans with a disability and that Congress intended this segment of our population to be covered by the ADA. People with epilepsy, and people who have a record or history of epilepsy and seizures, are among those that Congress specifically mentioned when it passed the ADA. Congress also explicitly recognized that people can be regarded as having a substantial disability even when in fact they are not currently disabled, and it used the case of people with controlled epilepsy as an example of the population it intended to address. Congress and the courts, including the Supreme Court, have also acknowledged that fear of a person's disability can form the basis for discrimination, and epilepsy has been cited as an example of this type of discrimination.

How might a person with epilepsy be substantially impaired?

• People who take medication to control their seizures often suffer various side effects. These side effects (drowsiness, irritability, difficulty concentrating, memory problems) could substantially impair that person's ability to work or carry out other daily life activities. These individuals might be substantially impaired because of the medications they take to control their seizures and thus entitled to protection under the ADA.
• Many people's seizures are not completely controlled by medication. These individuals may have seizures on the job, rendering them completely unable to perform the functions of the job for the duration of the seizure and often times, for a period of time following the seizure activity. Individuals who fall into this category might find themselves substantially impaired because of the frequency of seizure activity or the effects of the seizures when they do occur.
• For many people with seizures, there is no such thing as being "completely controlled." One can be well controlled for a period of time and then have breakthrough seizures. Seizure control can require a finely tuned balance of achieving the right level of medications to stop seizures while also minimizing significant side effects. This process can require frequent readjustments in medication. A person may be well controlled, and then suddenly have seizures, so that a new level of medication needs to be established. This process can take time, and during this time period, activities such as driving are usually restricted. Illness, hormonal changes, sleep deprivation, and changes in medications are common causes of breakthrough seizures.
• The Foundation's Report to the Nation documents that people with epilepsy have an unemployment rate of 25 percent, providing strong evidence that they are substantially impacted by the condition. It is common for people with epilepsy to go in and out of the workforce because of issues related to their seizure condition. Among people whose seizures are poorly controlled, the unemployment rate approaches 50 percent.
• Epilepsy has a significant impact on marriage and reproduction. People with epilepsy are less likely to marry and have children than the rest of the population. There are significant reproduction issues that people with epilepsy face: difficulty getting pregnant, higher rate of sexual dysfunction among men, higher rates of birth defects among offspring, to name a few. Marriage and procreation is a major life activity.
• Some individuals may achieve seizure control by medication and suffer no side effects. Still, they may be discriminated against because their employer or others mistakenly believe that they are substantially impaired because of their seizures. It is not enough, however, for the employer to believe that the person with seizures is impaired; the employer must believe that the individual is "substantially impaired" in his or her ability to work or perform some other major life activity.
• Many people with epilepsy do not drive, either because of their own safety concerns, or because they do not meet the state driver licensing requirements. Lack of transportation has a significant impact on daily living and employment for these individuals.

What should you do if you are discriminated against because of your epilepsy?

Continue to file complaints of discrimination with the EEOC alleging violations of the ADA. Do not think you are no longer covered by the ADA; there are many ways in which your particular circumstances can get you the law's protection.

There are other options, too. You can file complaints with your local or state fair employment practice (FEP) agencies, and you also may be able to file a complaint under the federal Rehabilitation Act of 1973 or other federal and local laws.