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Incarceration Is Not A Disability

by | Jun 29, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Wrongful Termination |



Our disability discrimination lawyers have blogged a lot about what is considered a disability under the Americans with Disabilities Act (“ADA”). (Best Law Read: Best Attorney Answers: Does My Employer Have to Accommodate My Epilepsy?;  Is A Heart Attack Considered A Disability Under The ADA?Is Cancer A Disability Under The ADA?; Does The ADA Protect Transitory Conditions Like COVID Or A Broken Leg?; What Are My Mental Health Rights At Work?; What Are My Job Rights If I’m Suicidal?). Under the ADA, an employee has disability if: (1) the employee has a physical or mental impairment that substantially limits a major life activity; (2) the employee has a documented history of a physical or mental impairment that substantially limits a major life activity; (3) the employer perceives the employee as being disabled.

The ADA requires employers to provide reasonable accommodation to assist employees doing their job. For example, time off may be a reasonable accommodation while an employee is dealing with a disability flair up or incapacitation due to a medical procedure or hospitalization.

However, while staying on top of employment case law, a recent case made clear that incarceration is not a disability. In Ross v. Commonwealth of Virgina, the United States District Court for the Western District of Virginia came to obvious conclusion that being in jail is not a physical or mental impairment (even if it does limit several major life activities) and cannot be reasonably perceived by an employer as being a disability. What did surprise me was that this was not a novel argument as the District Court was able to cite to past authority directly on point:

Ross’s complaint does not plausibly allege that he is disabled within the meaning of the ADA or the RA. Contrary to his assertions, “incarceration is not such a ‘disability.’ ” Holt v. Baker, 710 F. App’x 422, 424 (11th Cir. 2017); see also Graham v. Pa. Dep’t of Transp., No. 2:21-cv-00449, 2021 U.S. Dist. LEXIS 91236, at *13 (W.D. Pa. May 13, 2021) (“Simply put, incarceration is not a disability.”); Calhoun v. Berrien Cnty., No. 1:20-cv-01076, 2021 U.S. Dist. LEXIS 61720, at *7 n.3 (W.D. Mich. Mar. 31, 2021) (“Neither incarceration nor indigency meets the ADA’s definition of disability.”); Smith v. Ketchem, No. 1:01-cv-00176, 2002 U.S. Dist. LEXIS 29247, at *14 (N.D.W. Va. Mar. 20, 2002), aff’d, 45 F. App’x 254 (4th Cir. 2002) (“[B]eing incarcerated is not a disability under the [ADA].”). Consequently, the complaint fails to state a claim under either statute.

Thus, because incarceration is not a disability under the ADA, an employer can discriminate and can fire an employee due to that worker’s incarceration. Further, the employer does not have to accommodate that employee by giving time off while he or she is in the big house. It is not wrongful termination to fire an employee for being in club fed, the crowbar hotel, or otherwise up the river.

And before anyone gets an idea to assert a race discrimination claim under Title VII for being incarcerated – no, orange is not the new Black.

Is my medical condition a protected disability under the ADA?

Best Disability Discrimination Employment Lawyer Answer: Because each employee’s situation is different, the best way to figure out whether you have and disability and, if so, what protections you have, is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown, Detroit, and Raleigh will help you answer these questions and help you pursue any viable claims. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.


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