Section 1 of the Act defines people with disabilities as follows:

"People who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment."

An impairment may either be physical or mental or a combination of both.

A physical impairment means "a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired or visually impaired" (Code of Good Practice on the Employment of People with Disabilities, Paragraph 5).

A mental impairment is a clinically recognised condition or illness that affects a person's thought processes, judgement or emotions. This includes conditions such as intellectual, emotional and learning disabilities. For reasons of public policy, certain conditions or impairments may not be considered disabilities (Code of Good Practice on the Employment of People with Disabilities, Paragraph 5.3.1(iv)).

"Long-term" means the impairment has lasted or is likely to persist for at least 12 months. "Recurring" means the impairment is one that is likely to happen again and to be substantially limiting (see Paragraph 5.1.3. below). The condition can go away for a period of time and return again, but it is never cured. It includes a constant chronic condition, even if its effects on a person fluctuate, such as some forms of multiple sclerosis.

Progressive conditions are those that are likely to develop or change or recur. People living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting. Progressive or recurring conditions which have no overt symptoms or which do not substantially limit a person with no disabilities - for example, a person with cancer, tuberculosis or HIV – would not be covered under the Employment Equity Act until the symptoms are substantially limiting the person’s ability to perform their job.

An impairment is substantially limiting if its nature, duration or effects substantially limit a person’s ability to perform essential functions of the job for which he or she is being considered. If the effects of the impairment are not substantially limiting, even if they are physical and/or mental, long-term or recurring, then the person is not covered under the Act. Qualified experts may be used to assist the employer to determine whether a particular impairment is substantially limiting. Alternatively, the employee may be able to provide information sufficient to document this.

The first category are impairments which are easily controlled, corrected or lessened so that they have no limiting effects. For example, a person who wears spectacles or contact lenses does not have a disability, unless, even with spectacles or contact lenses, that person’s vision remains substantially impaired. An assessment to determine whether the effects of an impairment are substantially limiting must consider if medical treatment or other devices would control or correct the impairment so that its adverse effects are prevented or removed.

The second category refers to what are called public policy exclusions. This means that, for reasons of public policy, certain conditions or impairments may not be considered as disabilities. These include, but are not limited to

• sexual behaviour disorders that are against public policy;
• self-imposed body adornments such as tattoos and body piercing;
• compulsive gambling, tendency to steal or light fires;
• disorders that affect a person’s mental or physical state if they are caused by current use of illegal drugs or alcohol, unless the affected person is participating in a recognised programme of treatment;
• normal deviations in height, weight and strength; and
• conventional physical and mental characteristics and common personality traits."