By: Daria Ivanova,

In 1990, Congress enacted Americans with Disabilities Act with a purpose to protect individuals with disabilities from workforce discrimination.[1]  The ADA was a successor to the Rehabilitation Act of 1973, which was the first attempt of Congress to fill the gap in the Civil Rights Act of 1964, in relation to discrimination based on a “physical or mental impairment.”[2] However, the Rehabilitation Act’s reach was limited to only employers “receiving Federal financial assistance,”[3] and the ADA eliminated this limitation covering other employers as well.[4] Congress experienced difficulties in defining a “disability” when enacting the Rehabilitation Act, but the definition they settled on was essentially incorporated into the ADA. The ADA defines a “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment.”[5] In order for a plaintiff to prove disability discrimination, he or she must show that: (1) the employer is an entity covered by the ADA; (2) the plaintiff meets the definition of “disabled” under the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of his or her job, with or without reasonable accommodation; and (4) the plaintiff suffered adverse employment action based on the disability.[6]

Following the enactment of the ADA, the Equal Employment Opportunity Commission (EEOC) and the Supreme Court of the United States limited the application of the Act by narrowing the definition of a “disability.” The formerly defined “substantially limits” as “(i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner duration under which an individual can perform a particular major life activity.”[7] The Supreme Court did a similar thing in the case Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and Sutton v. United Air Lines, Inc. In the first case, the Court found that for the impairment to be debilitating to the ADA level, it must “prevent[] or severely restrict[] the individual from doing activities that are of central importance to most people’s daily lives.”[8] In the second case, the Court limited the meaning of the phrase “regard as” in the last prong of the statute. The Court stated that it required “an ADA plaintiff to show that the  employer regarded the plaintiff as having an impairment that substantially limited a major life function, as opposed to merely showing that the employer regarded the plaintiff as having an impairment.”[9] However, in 2008, Congress pushed back by introducing the ADA Amendments Act (“ADAAA”) with the purpose of “restoring the intent and protections of the Americans with Disabilities Act of 1990,” [because] “the holdings of the Supreme Court [in Sutton and Toyota] have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” [10] Moreover, the ADAAA stated that the definition of a disability was to be interpreted in the broadest extent allowed by the Act and covering the broadest coverage of individuals.[11]

As surprising as it may seem, scientists still cannot come to an agreement as to the definition of an addiction. Moreover, it has been said that the state of scientific discussion regarding the definition is in a state of “conceptual chaos.”[12] For example, the APA’s Diagnostic and Statistical Manual of Mental Disorders (“DSM IV-TR”) does not even use the word “addiction,” but uses “substance dependence” defining it as “[a] maladaptive pattern of substance use, leading to clinically significant impairment or distress,” and setting forth seven criteria to aid in diagnosis.”[13] Traditionally, the state of an addiction (even though there was no agreement as to its definition) was said to consist of two elements of (1) tolerance and (2) withdrawal. The first one “refers to the tendency of a given dosage of a substance to be less successful in achieving the desired effect over time.”[14] The second one presents itself by “physiological side effects that result from the cessation of repeated use of a substance.”[15] Simply stated, when the body is exposed to a potent drug, it maintains the balance through counter-regulatory mechanisms; for example, in reaction to alcohol, which is a depressant, the body produces more stimulants.[16] These two factors are often elaborated by other, behavioral, factors indicating the person’s relationship to the drug.[17]

As early as 1990, researchers started discussing the idea that addiction might not only include the substance abuse, but also certain excessive behavior, such as shopping, Internet use, and sex addictions.[18]  The latest Diagnostic and Statistical Manual of Mental Disorders (DSM-5) did not include behavioral disorders, except for gambling, but recommended them for further research.[19] Two of the theories which support the idea of including behavioral addiction are (1) the “dopamine theory” and (2) “the looks-like addiction theory.” The “dopamine theory” rationalizes behavioral addiction  because it “corresponds with activity in the brain’s reward circuitry similar to that which occurs during drug use.” [20] The “looks-like-addiction theory” bases its conclusion on the fact that “the relationship between an individual and the behavior looks like the relationship between an individual and a drug because both involve craving, excessive use, withdrawal, tolerance, and continuation despite negative repercussions.”[21]

Within the framework of ADA, Internet addiction started to be widely discussed after Congress expressly stated its willingness to apply the ADA on as many cases as permitted by the text of the Act. Additionally, courts have held that once a health professional diagnoses a mental health condition, this condition can count as an “impairment” under the ADA.[22] The regulations proposed by the EEOC to implement the ADAAA included “major depression, bipolar disorder, [and] PTSD.”[23] For example, in order for a plaintiff to be able to make a case under the ADA, he would have to bring an expert testifying that Internet addiction is a mental health condition which substantially limits one or more major life activities of a plaintiff, such as not allowing a plaintiff to interact with other people due to prolonged Internet usage. This scenario in the example does not seem too crazy. The plaintiff in Pacenza v. IBM Corp. tried to link his “long-standing Internet sexual addiction” to PSTD he suffered after the Vietnam War and sexual abuse he suffered as a child.[24] Pacenza’s job did not require his utmost attention all of the time, and one of the ways he filled his time was participating in sexually-explicit chat rooms.[25] Pacenza received a warning after the first time, but, subsequently, his supervisor caught him again and discharged Pacenza.[26] Pacenza sued IBL claiming protection under the ADA because his PTSD “manifested through various addictive behaviors including ‘Internet sex addiction.’”[27] The U.S. District Court for the Southern District of New York granted summary judgement to IBM, but based its decision on the fact that Pacenza’s supervisor did not know about his PTSD; thus, the court neither completely foreclosed, nor validated the ability of prevailing in the ADA suit based on a behavioral addiction. As society gets more technologically dependent, it seems fairly certain that these arguments could potentially become more prevalent and more accepted by the courts.


[1] Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2(a), 104 Stat. 327, 328-29 (codified as amended at 42 U.S.C. § 12101(a) (2006)).

[2] 42 U.S.C. § 12102(1)(A) (Supp. II 2008).

[3] Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, § 504 (codified as amended in scattered sections of 29 U.S.C.).

[4] See 42 U.S.C. § 12111(5)(A) (2006) (“The term ‘employer’ means a person engaged in an industry affecting commerce who has 15 or more employees….”).

[5] See Rehabilitation Act Amendments of 1974, Pub. L. No. 93-516, § 111(a), 88 Stat. 1617, 1619.

[6] Behavioral Addictions and the Law.

[7] 29 C.F.R. § 1630.2(j)(1) (2010).

[8] Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).

[9] BEHAVIORAL ADDICTIONS AND THE LAW, 84 S. Cal. L. Rev. 161, 180-181 (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999)).

[10] Id. (citing ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553, §2(a)(4) (codified in scattered sections of 28 and 42 U.S.C.).

[11] ADA Amendments Act § 3(4)(A).

[12] Howard J. Shaffer, The Most Important Unresolved Issue in the Addictions: Conceptual Chaos, 32 Substance Use & Misuse 1573, 1574 (1997).

[13] Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev. 2000).

[14] BEHAVIORAL ADDICTIONS AND THE LAW, supra note 9, at 165.

[15] Id.

[16] Nathanael J. McKeown & Patrick L. West, Withdrawal Syndromes, eMedicine, (last updated Aug. 12, 2016).

[17] Hanan Frenk & Reuven Dar, A Critique of Nicotine Addiction 30-32 (2000); Shaffer, supra note 7, at 1577 (“It is the relationship of the addicted person with the object of their excessive behavior that defines addiction.”).

[18] See, e.g., Isaac Marks, Behavioural (Non-Chemical) Addictions, 85 Brit. J. Addiction 1389, 1389 (1990).

[19] Anita Everett, Can You be Addicted to the Internet?, American Psychiatric Association (Jul. 20, 2016)

[20] See Jerald J. Block, Issues for DSM-V: Internet Addiction, 165 Am. J. Psychiatry 306, 306 (2008).

[21] Id.

[22] Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009).

[23] Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 74 Fed. Reg. at 48,441.

[24] See Pacenza v. IBM Corp., No. 04 Civ. 5831 (PGG), 2009 U.S. Dist. LEXIS 29778, at 2 (S.D.N.Y. Apr. 2, 2009).

[25] Id.

[26] Id. at 9, 17.

[27] Id. at 30.

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