A. Ask the CP to identify the precise mitigating measure used (e.g., medication, insulin, prosthetic limb, hearing aid).

• If a CP uses more than one mitigating measure (e.g., a CP uses two medications), be sure to get information on how well each mitigating measure controls a CP's symptoms, the respective side effects of each, and whether the two medications together cause limitations because of the interaction between them.

B. Ask the CP to identify any behaviors s/he may have specifically developed to cope with the limitations of an impairment.

• For example, an individual with monocular vision might have developed specific compensating behaviors in head or eye movements to see effectively at long distances.

C. If the CP is not using a mitigating measure, then discuss what limitations, if any, the CP experiences in performing a major life activity due to the impairment.

A. A number of questions should be asked to determine whether a mitigating measure fully controls, partially controls, or has little effect in controlling the symptoms and limitations of an impairment. Examples include:

1. Describe what symptoms and limitations you experienced before using the mitigating measure (e.g., 3 seizures a week; frequent and severe headaches, blurred vision, urination, thirst, and other symptoms of high levels of blood sugar (hyperglycemia) for a person with diabetes; chronic, severe shaking due to Parkinson's disease; ability to hear only certain high-pitched sounds).

• This question seeks information to establish what major life activity(ies) may be affected by the CP's impairment, despite the use of a mitigating measure or compensating behavior. Remember that major life activities are broadly defined and that the list of major life activities in the EEOC regulations and enforcement guidances is not exhaustive.
• Bragdon took an expansive view of the terms "major life activity" and "substantial limitation." Investigators should continue to consult the Compliance Manual and EEOC guidances for additional information on identifying major life activities and assessing whether a CP is substantially limited. (Also, see Sutton, 67 U.S.L.W. 4537, 4542 (June 22, 1999) for a discussion of "substantial limitation.")
• See pages 7-9 for a listing of some of the major life activities that you should review with a CP to determine if s/he still experiences limitations in performing them, despite the use of a mitigating measure.

2. How well does the mitigating measure control the symptoms and limitations identified above?

• Does the mitigating measure control the symptoms or limitations all of the time or only some of the time? (e.g., medication has reduced the number of seizures from 3 per week to 1 per week; the treatment of diabetes through diet, medication, and insulin has limited the frequency and severity of the incidents of hyperglycemia; the shaking only occurs when the CP is tired and is not as severe as it used to be; the hearing aid enables the CP to hear low and high-pitched sounds, but not words).
• A CP who uses a prosthetic hand or arm may continue to experience substantial limitation in the major life activity of performing manual tasks because the device does not permit fine motor manipulation.
• If a CP uses a behavior specifically developed to compensate for a limitation resulting from an impairment, how well does that behavior compensate for the limitation? Do any limitations remain for which the compensating behavior is ineffective?
• For example, a CP with monocular vision might be able to turn his/her head to compensate sufficiently for a decrease in his/her field of vision. This will not compensate for the loss of depth perception. To deal with that limitation, a CP may have learned to judge long distances by relying on monocular cues such as linear perspective, overlay of contours, and distribution of highlights and shadows. However, this behavior may not compensate for limitations in seeing at shorter distances. Therefore, a CP who uses certain compensating behaviors might still experience limitations in performing numerous tasks involving close range vision. The limitation in close range vision is relevant to determining whether the CP is substantially limited in seeing or any other major life activities.

3. How long has the CP been using the mitigating measure or compensating behavior?

• If a CP has been using a mitigating measure or compensating behavior for only a short period, initially it may not be very effective in controlling the limitations.
• Whether a mitigating measure, over time, might become more effective involves speculation. The Supreme Court's decisions make it clear that the determination of whether a CP is substantially limited, even with the use of a mitigating measure or compensating behavior, must rest on evidence of how well the measure or behavior actually worked at the time of the alleged discrimination.

4. Does the mitigating measure tend to become less effective under certain conditions? If certain conditions interfere with the effectiveness of a mitigating measure, how often and for how long a period do these conditions arise? For example:

• If the CP is under great stress, or is tired, does the mitigating measure work as well?
• Do adverse weather conditions or other environmental changes impact the effectiveness of a mitigating measure?
• Do illnesses, such as a cold or the flu, change the effectiveness of a mitigating measure?
• For women, do monthly hormonal changes impact the effectiveness of a mitigating measure?

5. Does the mitigating measure tend to be effective only for awhile?

• For example, while a CP with bipolar disorder who uses medication does not experience severe symptoms of the disorder for a period of time, he then experiences symptoms for several weeks and undergoes a severe manic episode. Following the manic episode, the CP again experiences few or no symptoms while using the mitigating measure.
• Mitigating measures used to treat degenerative illnesses, such as Parkinson's disease, may only work for a period of time before the condition worsens, making the mitigating measure ineffective.

6. Has the CP had to change mitigating measures because previous ones became less effective? If yes, how many previous mitigating measures has the CP used, and what happened when each one became less effective? How long did each mitigating measure remain effective? Is the current mitigating measure different from previous ones so that it is less likely to fail? Or, conversely, is there any indication that the current mitigating measure is becoming less effective?

7. Are there any symptoms or limitations that are unaffected by the mitigating measure? If yes, what are they and how severely do they limit the CP from engaging in a major life activity?

8. Has the impairment caused any complications that are not controlled by a mitigating measure and may substantially limit a major life activity?

• For example, complications from diabetes may result in substantial limitations in major life activities. This can include complications such as eye disease (seeing); nerve damage (sitting, standing, walking, eating); blood vessel disease (walking); and difficulties with reproduction. These are all complications that are not controlled by insulin.

A. Investigators need to ask CPs whether they experience any symptoms, side effects, or limitations in performing certain activities as a result of using a mitigating measure. If a CP does experience limitations, the Investigator needs to probe their severity and duration.

• If a CP uses medication, it is critical to identify the specific medication and the specific side effects caused by it. Not all medications produce the same side effects. Moreover, the same medication does not produce the same side effects in all individuals.

B. If a CP uses two or more mitigating measures, and they are not substantially limiting by themselves, determine if the combined negative effects of all the mitigating measures together substantially limit one or more major life activities.

• For example, a CP with Attention Deficit Disorder (ADD) and depression may take medications to treat each condition. Each medication, by itself, affects the ability to sleep (a major life activity), but does not substantially limit it. However, the combined effect of the two medications substantially limits the CP's ability to sleep.

C. A number of major life activities may be severely affected by a mitigating measure. (These major life activities may also be directly affected by the impairment despite the use of a mitigating measure.)

1. Thinking, concentrating, and other cognitive functions may be substantially limited when a CP uses certain drugs to treat many different impairments, including psychiatric illnesses and epilepsy. It may take much greater effort to engage in cognitive functions because the medication causes a person to feel groggy, disoriented, or slow. Or, a CP may have difficulty with memory because of certain medications.
   
   
2. Walking, standing, and lifting may be substantially limited even with the use of a prosthetic foot, leg, arm, or hand.
   • For neurological reasons, some people experience "pain" or "discomfort" from a missing limb. A CP may experience problems in the remaining limb resulting from over-use to compensate for the missing limb. Significant pain may accompany wearing a prosthetic device. A CP may need to minimize the amount of walking in order to wear the prosthetic leg for longer periods. Or, a person using a prosthetic leg may be able to walk without significant problems, but can only wear the leg for 8 hours per day, and then must rely on a wheelchair or crutches for mobility.
   
   
   • A prosthetic limb may cause serious chafing, rubbing, blisters, and ulcers, depending on a number of factors, including the materials used, the tightness of the fit, how the amputation occurred, and what body part the prosthetic device is replacing. These side effects could affect the ability to wear the prosthetic device for prolonged periods and/or affect the CP's ability to engage in walking, standing, or lifting, as well as the major life activities of performing manual tasks and caring for oneself.
   
   

   3. Eating is a major life activity that may be affected by the use of a mitigating measure if a CP is required to adhere to substantial dietary restrictions because of medication or a device. Or, a CP may be less able to eat or may have to maintain a rigid eating schedule because of certain medications or devices. Certain medications can cause severe nausea, which in turn will affect a CP's ability to eat. An Investigator should ask whether a CP's ability to eat and/or eating habits had to be altered, and if so in what ways.

   • Both food and lack of food can cause severe short and/or long-term medical problems for people with diabetes. They must consider the impact on the disease of everything they eat, how much they eat, and when they eat.
   
   

   4. Caring for oneself may be substantially limited as a result of using a mitigating measure.

   • Medication and prosthetic devices may cause extreme fatigue, which in turn may affect a CP's ability to care for him/herself.
   • For CPs with diabetes, the ability to care for themselves may require significant changes and/or disruptions to their daily activities to control the frequency and severity of incidents of high blood sugar (hyperglycemia) and low blood sugar (hypoglycemia). The serious short and long-term consequences of hyperglycemia include headaches, blurry vision, breathing difficulties, eye disease, kidney disease, nerve damage, blood vessel disease, and death; the consequences of hypoglycemia include disorientation, weakness, nervousness, seizure, coma, and death. To avoid these serious consequences, CPs with diabetes must be constantly vigilant in closely controlling blood sugar levels. This involves monitoring body signals for fluctuations in blood sugar levels, checking blood sugar levels mechanically, and, based on those levels, adjusting food intake, physical activity, and medications (including insulin and oral medications). People with diabetes must maintain a delicate balance between these elements in order to avoid hyperglycemia and hypoglycemia.
   • There also may be a significant impact on the ability to care for oneself as a result of experiencing a medical episode. The inability of a mitigating measure to prevent such an episode may cause so much fear that it seriously affects a CP's ability to care for himself. For example, a CP with epilepsy may have had traumatic experiences having a seizure in public where strangers reacted badly. As a result, he may not be able to go out alone to run routine errands or buy groceries, and may require that someone familiar with his epilepsy always accompany him. Alternatively, a CP may fear possible injury from a seizure, and therefore may be unable to engage in basic activities of caring for oneself, such as cooking and bathing, unless another person is present.
   • A person who wears a prosthetic limb may have to curtail activities that are part of caring for oneself, such as household chores and grocery shopping, because the limb can only be worn for a certain period of time.
   
   

   5. Sleeping may be affected by certain medications. Some may cause extreme drowsiness, while others have the opposite effect.

   
   

   6. Performing manual tasks may be affected by certain drugs which can interfere with fine motor skills.

   
   

   7. Reproduction may be affected by use of a mitigating measure. Many medications prescribed to control seizures or psychiatric illnesses can cause birth defects, thus creating a substantial limitation in procreation. (See Bragdon.)

   
   

   8. Working may be affected by use of a mitigating measure. Investigators should always review this major life activity last. For a discussion on the impact of the Supreme Court decisions on identifying a class of jobs or broad range of jobs in various classes, see pages 14-16.

A. A CP meets the first definition of "disability" where, despite, or because of, the use of a mitigating measure, the CP is substantially limited in performing a major life activity.

B. Determining whether a CP meets this definition does not rest on identifying a multitude of major life activities that are merely affected by CP's impairment, even with the use of a mitigating measure. Rather, such a determination depends on evidence that shows that the CP is substantially limited in performing at least one major life activity.

C. Problems in performing numerous tasks may signal a substantial limitation in performing a specific major life activity.

• For example, a CP with epilepsy may be substantially limited in caring for herself because she cannot live independently due to the fact that her epilepsy necessitates assistance with running a household (e.g., preparing meals, cleaning, bathing, grocery shopping). Even if running a household is not a separate major life activity, it is part of the major life activity of caring for oneself.

D. Always look for evidence concerning the length of time a CP has experienced limitations, the frequency with which they occur, and their severity in order to determine whether the CP is substantially limited.

• For example, if a CP with epilepsy has been seizure-free for a substantial period of time and there are few or no side effects from medication, detailed information needs to be obtained concerning CP's seizures, and their impact on performing major life activities, before CP began using the current medication.

2. How long did the CP experience these limitations prior to using a mitigating measure?

3. Was the CP precluded from or limited in performing a major life activity all of the time or only some of the time? That is, were any limitations present only during certain periods? If limitations in performing a major life activity were episodic rather than constant, how often and for how long a period did these limitations occur? How severe were the limitations when they did occur?

• For example, a CP with major depression may have experienced episodes of severe depression that lasted several months before taking medication.

4. Before using a mitigating measure that effectively controls the symptoms or limitations of an impairment, did the CP try any unsuccessful mitigating measures?

• In certain situations, it may take months to find the right medication, or group of medications, to control the symptoms or limitations of an impairment. During this period, the CP may have been substantially limited in performing a major life activity.