Jeanne A. Carpenter
Epilepsy Legal Defense Fund

Epilepsy as a Disability Under Federal Law

Since 1998, when the United States Supreme Court handed down its decision in Sutton v. United Airlines et al., people with epilepsy have had difficulty proving in court that they are disabled under the Americans with Disabilities Act and its counterpart, the Rehabilitation Act of 1973.

Under these federal laws, only those persons whose epilepsy substantially limits one or more major life activities are protected. The laws also protect those who can show either that they have a record of such a condition in the past or were regarded as having such a condition. 42 U.S.C. § 12102 (2003). The Supreme Court has made clear that in determining whether a condition is substantially limiting, the effects, both negative and positive, of mitigating measures, such as medication, must be considered. Sutton v. United Airlines, 527 U.S. 471, 482 (1999).

Courts generally do not refute that epilepsy is a physical impairment. Rather the debate is over whether what major life activities are substantially limited by epilepsy, particularly when mitigating measures are considered. This debate is complicated by the fact that neither federal law defines what are "major life activities." The Equal Employment Opportunity Commission has identified some possible activities, such as speaking, hearing, performing manual tasks, and walking. Since the law was enacted in 1992, the courts have added others, such as reproduction. See, e.g., Bragdon v. Abbott, et al.

The United States Supreme Court has also tackled this difficult question. In Bragdon v. Abbott, 524 U.S. 624, 641 (1998), the Court made clear that a major life activity need not be part of economic and social life. More recently in Toyota Motor MFG., KY, Inc. v. Williams, 534 U.S. 184 (2002), the Court clarified that a major life activity is one that is central to the daily tasks of everyday life. It also made clear that in cases alleging employment discrimination, there does not need to be a nexus between the restricted major life activity and the individual's job for the purpose of showing that the individual is disabled.

In Toyota Motor, the Court also made clear that while an activity may not be a major life activity when viewed by itself, it may when viewed in conjunction with other activities be a major life activity. For example, while most of the circuit courts have held that driving is not a major life activity, an inability to drive may be key to showing a substantial limitation on the major life activity of social interaction. Thus, it is especially critical that we as advocates identify any and all possible life activities that a court may deem a major life activity, by itself or when viewed collectively with other activities.

To assist you in this process, we have developed a list of activities (PDF) that people with epilepsy commonly experience changes in as a result of seizures or the side effects of medication, and a worksheet (PDF) to help you identify how epilepsy limits your client's daily life.

You may also want to review:

We also encourage attorneys who are currently representing someone with epilepsy, or are considering doing so, to contact us with information about their case at legalrights@efa.org, or by phone at (301) 918-3700.