In order to be a protected qualified individual with a disability under the Americans with Disabilities Act, a plaintiff must have a significant impairment of a major life activity.  Federal courts continue to struggle with what does and what does not constitute a major life activity under the ADA.  Last week, in Kellogg v. Energy Safety Servs., Inc., the Tenth Circuit Court of Appeals became the third federal appellate court to conclude that driving is not an ADA major life activity.

The plaintiff suffered from epilepsy.  She was terminated from her job as a maintenance technician for a petroleum producing company over concerns that she could lose consciousness at work and present a safety problem.  She sued under the ADA, alleging that the epileptic condition impaired her ability to drive.  The trial court instructed the jury that driving was a major life activity, and it found in favor of the plaintiff.

On appeal, the employer contended that driving was not in and of itself a major life activity, but only a means to an end.  In a 2-1 decision, the Tenth Circuit agreed, reversing the verdict for the plaintiff.  In its opinion, the court stated that while important, driving is not universally a major life activity, as compared to breathing, sleeping, etc.  Persons living near public transit options may not need to drive to function in society.  The Second and Eleventh Circuits similarly concluded that driving is not a major life activity.

For future situations, the legal reasoning behind this decision may be affected by the new ADA Amendments Act of 2008.  Driving is not included among the non-exclusive list of major life activities in the new statute.  However, the overall intent of the Act to expand the ADA’s definition of qualified individuals may convince federal courts to more liberally view the question of what is and what is not considered a major life activity.