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Invisible Disabilities

Joe Vossen, JD
October 2020
How to prevent discrimination against higher ed students with invisible disabilities

The Department of Commerce estimates that more than 90% of disabilities are invisible — in other words, not observable or apparent. Examples include:

  • Learning disabilities and attention deficits
  • Autism spectrum disorders
  • Mental or psychiatric impairments
  • Chronic diseases

Those with invisible disabilities often don’t disclose their conditions for fear of prejudice or social stigma. Fear of disclosure is typically more acute among the traditional student-age population and those who have recently acquired the disability.

The ADA Amendments Act of 2008 broadened the meaning of “disability” under the ADA by expanding the definition of two key terms: “major life activities” and “major bodily functions.” If a condition substantially limits a major activity or function, the individual may be entitled to disability protection under the ADA. For a complete list of major life activities and major bodily functions, see 42 USC § 12101(2).

By broadening the disabilities protected by the ADA, the amendments make it easier for people with debilitating conditions to qualify for protection, which is particularly beneficial for people with invisible disabilities. In the past, they may have been refused accommodations if their disabilities were not immediately apparent or their condition did not meet the narrower definition of disability.

Developments Involving Disabilities, Accommodations

Some institutions have run afoul of the amendments as they follow their own policies on disabilities and accommodations. The amendments provide even stronger grounds for protecting invisible disabilities, so your institution must be vigilant when providing accommodations. Consider the following developments as you apply, review, and revise your policies:

  • A federal court ruled in 2012 that a student could sue her medical school when it failed to accommodate her attention deficit disorder during exams. Concentrating, thinking, and communicating are major life activities. Although invisible, learning disabilities and mental impairments will qualify people for reasonable accommodations.
  • In 2010, the Department of Justice stepped up efforts to educate returning service members with traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) on their rights. TBI and PTSD affect brain function, a major life activity under the ADA. In addition, the Department of Education’s Office for Civil Rights (OCR) lists PTSD and TBI as disabilities, entitling returning service members to federal protections.
  • OCR investigated a university’s websites to determine if people with sensory impairments could access information. A voluntary resolution letter between OCR and the university stated that technology would be accessible not only to students and employees but also visitors and prospective students.
  • In 2015 a state court allowed a student with HIV to challenge his dismissal from a health college on grounds that HIV is a disability and caused his removal. The ADA amendments are likely to cover chronic conditions and diseases that may be invisible, such as cancer, diabetes, and HIV positive status.
  • A PhD applicant sued a state university after she disclosed her Crohn’s disease on her admission application and was subsequently rejected. Crohn’s is a disorder of the digestive tract; digestive functions are invisible but are listed as a major bodily function in the ADA amendments.
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