To Sleep Perchance to Sue - Measuring Sleep as a Major Life Activity

I always advise employers not to make significant employment decisions based upon whether the employee (or applicant) has or does not have a disability (as defined in the Americans with Disablities Act). The definition is so complex that it is safer for an employer to assume that most any significant impairment could be a disability and act accordingly. This is inefficient, I know, but so is spending a week in front of a jury. Still, a wise employer is familiar with some of the less common types of disabilities.

The decision de jure involves an FBI agent wannabe who sued because he had post-traumatic stress disorder that caused him to be substantially limited in the major life activity of "sleep." Sleep, the court of appeals said, was a major life activity. Common sense makes it hard to disagree, given that we spend 1/3 of our life asleep (though the time spent on a life activity does not alone make it a major one). Other courts have agreed.

The more interesting issue was how the court concluded the employee had a mental impairment (PTSD) that substantially limited sleeping. Whether a limitation is substantial is determined by comparing the employee to the average person in the general population. Employees must offer more than generalized allegations of restless or fitful sleep, or occasional, temporary bouts of sleeplessness.

Here, the employee stated that because of his PTSD, there were times where he slept only 2 to 4 hours a night over a five month period. Citing a study which concluded 71% of adults get 5 to 8 hours sleep, the court held a jury could conclude the employee was substantially limited. Nor was it relevant that the employee's sleepless nights did not seem to affect him during the day: the ADA does not require an employee to "demonstrate that his impairment affects his work performance in some way or has an ancillary effect on his waking life in general."

There are several imortant points to remember about the decision. First, the amount of sleep deprivation here was significant. Other courts, faced with 4 to 5 hour nights sleep have disagreed on whether a jury could find the employee had a substantial limitation. Second, the court's substantial limitation discussion was so lengthy that it blurred some fundamental points. In determining whether the lack of sleep is a substantial limitation, it only makes sense to examine the hours per night (here, two to four hours), as well as its frequency over a substantial period of time (here, five months). What was missing in the decision was any serious discussion of the frequency issue. It was enough that the employee testified he "frequently" slept only 2 to 4 hours a night. (I don't blame the court; the employer may not have argued the point.) Occassional sleepless nights, even a few times a week, would be a much closer question. Finally, lack of sleep itself isn't a disability. There must be a physical or mental impairment that causes the lack of sleep.