* The text of this page is excerpted from Pleading Disability After the ADAAA, 31 Hofstra Lab. & Emp. L.J. 1. (co-authored by Kevin Barry, Brian East, & Marcy Karin).
This page summarizes of each of the ADAAA's relevant provisions with reference to three sources of law: (a) the ADAAA's statutory text, (b) the EEOC's final regulations and guidance, and (c) judicial decisions, organized by circuit, interpreting the definition of disability.
I. Summary
The first step in proving disability under the ADA is showing that plaintiffs have, once had, or are perceived as having a "physical or mental impairment."
“Physical or mental impairment” was left undefined in the text of the ADA, and it remains so under the ADAAA. That said, the ADAAA maintains the regulatory definition of “physical and mental impairments” as promulgated by the EEOC and included in the regulations of the Department of Justice and Department of Education. Under these regulations, physical and mental impairments are defined as:
Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or [a]ny mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
In contrast to the definition of substantially limits and major life activities, the EEOC’s definition of “physical or mental impairment” has always been broad--nearly any diagnosis will suffice. Recent changes to the EEOC regulations and guidance clarify this breadth.
These administrative changes, together with case precedent, follow.
New body systems--the immune and circulatory systems--are added to the regulatory definition of “physical impairment.” Further, the regulation clarifies that the list of body systems is non-exhaustive.
Pregnancy, by itself, is not an impairment; however, pregnancy- related impairments may be covered.
Fifth Circuit: Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1185 (E.D. Tex. 2011) (holding that renal cancer was “physical impairment” and citing the EEOC’s post-ADAAA regulations defining “physical impairment”); Lowe v. American Eurocopter, LLC, No. 1:10CV24-A-D, 2010 WL 5232523, at *6-8 (N.D. Miss. Dec. 16, 2010) (holding that employee stated claim that her obesity was impairment under the ADAAA).
Sixth Circuit: Kravits v. Shinseki, No. 10-861, 2012 WL 604169, at *5 (W.D. Pa. Feb. 24, 2012) (irritable bowel syndrome is impairment); Wells v. Cincinnati Children’s Hospital Medical Center., 860 F. Supp. 2d 469, 480 (S.D. Ohio 2012) (“[G]astrointestinal problems which caused Plaintiff nausea, vomiting, and diarrhea clearly qualify as a physiological disorder.”).
Seventh Circuit: Heatherly v. Portillo’s Hot Dogs, Inc., No. 11 C 8480, 2013 WL 3790909, at *6 (N.D. Ill. July 19, 2013) (“[Employee] presented sufficient evidence to create a triable issue of fact as to whether her high risk pregnancy rendered her disabled under the ADAAA”).
Eighth Circuit: Price v. UTI, U.S., Inc., No. 4:11-CV-1428 CAS, 2013 WL 798014, at *3 (E.D. Mo. Mar. 5, 2013) (““[P]hysical impairment” includes . . . an impairment or complication related to pregnancy.”).
The ADA has always recognized two distinct types of claims--non-accommodation claims, which encompass everything from disparate treatment to harassment, and accommodation claims, which involve the failure to accommodate. The ADAAA sharpens this distinction by proffering a different disability showing for each. This part addressed the disability showing for non-accommodation claims.
Under the ADA, as amended, employees alleging a non-accommodation claim--that is, discrimination that does not involve a failure to accommodate--should normally seek coverage under prong 3 of the ADA’s definition of disability, the “regarded as” prong. The reason for this is simple: the regarded as prong is now the broadest prong and therefore the easiest way to prove coverage under the ADA, but it only protects those alleging a non-accommodation claim.
A brief description of the ADAAA's changes to the regarded as prong, and its implications for non-accommodation claims, follows.
In 1987, in School Board of Nassau County v. Arline, the Supreme Court broadly interpreted the Rehabilitation Act’s “regarded as” prong to cover anyone who is adversely treated based on an impairment. The Court did not dwell on the employer’s subjective beliefs about the employee’s functional limitations; it was enough that the employee was terminated because of a diagnosis (in that case, tuberculosis). In 1999, in Sutton v. United Airlines, the Supreme Court reversed course, interpreting the ADA’s “regarded as” prong very narrowly. To prove coverage under the “regarded as” prong, the Court said employees must show that their employers perceived them as having an impairment that substantially limited them in a major life activity. Proving the subjective mental state of an employer is, of course, a tall order because few employers “make[] the mistake of articulating the depths of [their] prejudices or the exact nature of [their] motivation.” Where the major life activity at issue was working, the order was taller still; employees had to show that their employers perceived them as having an impairment that limited them not in one job, but rather in a broad range of jobs.
The ADAAA redefines the “regarded as” prong (sometimes referred to as “prong 3”) in dramatic fashion, making it the broadest prong under which to prove coverage. An employee is no longer required to show that a covered entity perceived the employee as having an impairment that substantially limits him or her in a major life activity.Now, an employee need only show that he or she: (1) actually has, or is perceived by the employer as having, an impairment; and (2) was subjected to an adverse action (i.e., non-selection, demotion, termination, harassment, discrimination by association, or denial of any other term, condition or privilege of employment, but for defenses) because of the actual or perceived impairment. In non-accommodation cases, employee’s lawyers should plead the new-and-improved “regarded as” prong. The ADAAA’s textual changes, together with the EEOC’s new regulations and guidance as well as helpful case precedent, follow.
a. ADAAA Statutory Text
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
b. EEOC Regulations and Guidance
Prong 3 is the primary means of coverage in non-accommodation cases:
Where an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, . . . the evaluation of coverage can be made solely under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.
No showing of limitation is required. “Whether an individual’s impairment “substantially limits” a major life activity is not relevant to coverage under paragraph (g)(1)(iii) (the “regarded as” prong) of this section.”
To qualify for coverage under the “regarded as” prong, an individual is not subject to any functional test . . . . The concepts of “major life activities” and “substantial limitation” simply are not relevant in evaluating whether an individual is “regarded as having such an impairment” . . . . This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the “regarded as” prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment.
Prong 3 coverage requires a showing of causation. “[A]n individual is ‘regarded as having such an impairment’ any time a covered entity takes a prohibited action against the individual because of an actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action.”
The fact that the “regarded as” prong requires proof of causation in order to show that a person is covered does not mean that proving a “regarded as” claim is complex. While a person must show, for both coverage under the “regarded as” prong and for ultimate liability, that he or she was subjected to a prohibited action because of an actual or perceived impairment, this showing need only be made once. Thus, evidence that a covered entity took a prohibited action because of an impairment will establish coverage and will be relevant in establishing liability, although liability may ultimately turn on whether the covered entity can establish a defense.
To illustrate how straightforward application of the “regarded as” prong is, if an employer refused to hire an applicant because of skin graft scars, the employer has regarded the applicant as an individual with a disability. Similarly, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability. . . . [ [And] an employer who terminates an employee with angina from a manufacturing job that requires the employee to work around machinery, believing that the employee will pose a safety risk to himself or others if he were suddenly to lose consciousness, has regarded the individual as disabled. Whether the employer has a defense (e.g., that the employee posed a direct threat to himself or coworkers) is a separate inquiry [that goes to ultimate liability].
Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.
Establishing that an individual is covered under the “regarded as” prong “does not, by itself, establish liability. Liability is established under title I of the ADA only when an individual proves that a covered entity discriminated on the basis of disability. . . .” “Whether a covered entity can ultimately establish a defense to liability is an inquiry separate from, and follows after, a determination that an individual was regarded as having a disability.”
Showing an adverse action is sufficient to establish liability; under the regulations, a showing of myths, fears, or stereotypes is not required. “Where an employer bases a prohibited employment action on an actual or perceived impairment that is not “transitory and minor,” the employer regards the individual as disabled, whether or not myths, fears, or stereotypes about disability motivated the employer’s decision.”
The EEOC’s final regulations delete the proposed regulations’ prohibition of discrimination based on the symptoms of or mitigating measures used for an impairment.
The Commission believes that it requires a more comprehensive treatment than is possible in this regulation. Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the “regarded as” prong [discussed in the proposed regulations]. No negative inference concerning the merits of this issue should be drawn from the deletion.
c. Case Precedent
First Circuit: Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 24041 (D. Mass. 2010) (holding that employee stated claim that he was disabled under “regarded as” prong because employer terminated him based on his monocular vision).
Second Circuit: Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012) (“Although both parties thought that Hilton needed to demonstrate that the defendants regarded him as being substantially limited in a major life activity, it is clear that he was only required to raise a genuine issue of material fact about whether [defendants] regarded him as having a mental or physical impairment.”) (emphasis added); Davis v. NYC Department of Education, No. 10-cv-3812 (KAM)(LB), 2012 WL 139255, at *1-2, *6 (E.D.N.Y. Jan. 18, 2012) (holding that employee stated claim that she was disabled under the ADAAA’s “new, more lenient” prong 3 because employer evaluated employee’s performance as unsatisfactory and denied her full amount of bonus after employee took leave of absence to treat back and shoulder injury); Darcy v. City of New York, No. 06-CV-224 (RJD), 2011 WL 841375, at *4 (E.D.N.Y. Mar. 8, 2011) (holding that employee presented sufficient evidence that he was disabled under “regarded as” prong based on employer’s transfer of employee to new position five months after employer commented that employee was alcoholic).
Third Circuit: Estate of Murray v. UHS of Fairmount, Inc., No. 10-2561, 2011 WL 5449364, at *69 (E.D. Pa. Nov. 10, 2011) (holding that employee presented sufficient evidence that she was disabled under “regarded as” prong because she was terminated several days after informing her supervisor of her depression and explaining that [u]nder pre-ADAAA case law, [employee’s] evidence would almost certainly have failed to demonstrate substantial limitation. But post-ADAAA, the result is more uncertain given the statute’s command that “substantially limits” is not meant to be a demanding standard.”); Gaus v. Norfolk Southern Railway Co., No. 09-1698, 2011 WL 4527359, at *18-20 (W.D. Pa. Sept. 28, 2011) (denying employer’s motion for summary judgment for events occurring after the ADAAA’s effective date, and holding that employee was disabled under the “regarded as” prong when employer medically disqualified employee from returning to work after FMLA leave based on employee’s chronic pain in joints, hands, and hip); Cohen v. CHLN, Inc., No. 10-00514, 2011 WL 2713737, at *8 (E.D. Pa. July 13, 2011) (holding that employee had submitted sufficient evidence that he was disabled under the “regarded as” prong based on his termination one day after notifying his employer that he may need back surgery); Fleck v. WILMAC Corp., No. 10-05562, 2011 WL 1899198, at *6 (E.D. Pa. May 19, 2011) (holding that employee stated claim that she was disabled under “regarded as” prong because she was terminated based on chronic ankle injury, and noting “ADAAA’s de-emphasis on an employer’s beliefs as to the severity of a perceived impairment”).
Fourth Circuit: Chamberlain v. Valley Health Sys. Inc., 781 F. Supp. 2d 305, 312 (W.D. Va. 2011) (holding that employee submitted sufficient evidence that she was “regarded as” disabled when she was placed on involuntary leave and subsequently terminated shortly after being diagnosed with “visual field defect”).
Fifth Circuit: EEOC v. Res. for Human Dev. Inc., 827 F. Supp. 2d 688, 69597 (E.D. La. 2011) (holding that genuine issues of fact existed as to whether employee with severe obesity who was terminated from job was disabled under “regarded as” prong); Schmitz v. Louisiana, No. 07-891-SCR, 2009 WL 210497, at *2-3 (M.D. La. Jan. 27, 2009) (“Before the [ADAAA, the “regarded as” prong] of the definition was interpreted to mean that an employer had to regard or perceive an individual as substantially limited in a major life activity. The ADAAA eliminates this requirement. . . . The new provision states that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that the employer discriminated against him because of an actual or perceived impairment, “whether or not the impairment limits or is perceived to limit a major life activity.” . . . Clearly, the new ADAAA provisions related to the definition of disability create new legal consequences . . . and broaden the scope of an employer’s potential liability under the statute.”); Meinelt v. P.F. Chang’s China Bistro, Inc., 787 F. Supp. 2d 643, 651-52 (S.D. Tex. 2011) (holding that employee was disabled under the “regarded as” prong when he was fired three days after telling employer that he had a brain tumor and finding unavailing employer’s argument that denial of summary judgment would mean that “any time a plaintiff informs a manager of an alleged health condition . . . he or she would be automatically bestowed with a “regarded as” claim”); Lowe v. American Eurocopter, L.L.C., No. 1:10CV24-A-D, 2010 WL 5232523, at *7-8 (N.D. Miss. Dec. 16, 2010) (holding that employee stated claim that she was disabled under the “regarded as” prong because she was terminated based on obesity).
Sixth Circuit: Milholland v. Sumner County Board of Education, 569 F.3d 562, 566 (6th Cir. 2009) (stating that ADAAA’s change to “regarded as” prong “expands the coverage of the ADA to employer actions not previously covered”); Azzam v. Baptist Healthcare Affiliates, Inc., 855 F. Supp. 2d 653, 661-62 (W.D. Ky. 2012) (holding that employee who was terminated because of stroke with resulting fatigue was disabled under “regarded as” prong, but granting employer’s motion for summary judgment because employee was not qualified to perform job); Becker v. Elmwood, No. 3:10-CV-2487, 2012 WL 13569, at *9-10 (N.D. Ohio Jan. 4, 2012) (holding that employee with obsessive compulsive disorder presented sufficient evidence that he was disabled under the “regarded as” prong because his employer knew of his OCD prior to his resignation); Wells v. Cincinnati Children’s Hospital Medical Center, 860 F. Supp. 2d 469, 479-80 (S.D. Ohio 2012) (holding that employee presented sufficient evidence that she was disabled under “regarded as” prong because employer refused to reinstate employee to her former position as a result of concerns over employee’s use of prescription medication to treat her gastrointestinal problems); Rudolph v. U.S. Enrichment Corp., No. 5:08-CV-00046-TBR, 2009 WL 111737, at *6 (W.D. Ky. Jan. 15, 2009) (“[B]ecause the ADA[AA] broadens the definition of “disability” and who may have a cause of action under the “regarded as” prong[,] the amended Act would potentially increase [the employer’s] liability for past conduct.”).
Seventh Circuit: Horgan v. Simmons, 704 F. Supp. 2d 814, 820 n.4 (N.D. Ill. 2010) (holding that employee stated claim that he was disabled under “regarded as” prong because after employee told employer that he was HIV positive, employer questioned employee’s ability to work and lead others and fired employee next day).
Eighth Circuit: Brown v. City of Jacksonville, 711 F.3d 883, 889 (8th Cir. 2012) (stating that district court improperly focused exclusively on whether plaintiff had actual impairment and “failed to consider whether Brown made a submissible claim under the post-amendment ADA’s expanded definitions of perceived . . . impairment,” but affirming grant of summary judgment to employer on other grounds).
Ninth Circuit: Kagawa v. First Hawaiian Bank/Bancwest Corp., 819 F. Supp. 2d 1125, 1129 (D. Haw. 2011) (holding that employee stated claim that she was disabled under “regarded as” prong because employer required her to attend counseling and told her counselor that she heard voices in her head, and because counselor instructed employee to see a doctor); Walker v. Venetian Casino Resort, L.L.C., 02:10-CV-00195-LRH-VCF, 2012 WL 4794149, at *15 (D. Nev. Oct. 9, 2012) (“Thus, in passing the ADAAA, Congress eliminated the requirement that employees establish their employer’s beliefs concerning the severity of their impairment.”); Smith v. Valley Radiologists, Ltd., CV11-0599-PHX DGC, 2012 WL 3264504, at *5 (D. Ariz. Aug. 9, 2012) (holding that employee presented sufficient evidence that employer regarded her as disabled based on an email stating that employee would no longer perform mammograms because of her limited eyesight); McNamee v. Freeman Decorating Services, Inc., 2:10-CV-01294-GMN, 2012 WL 1142710, at *4 (D. Nev. Apr. 4, 2012) (holding that employee stated claim that he was disabled under “regarded as” prong because company executives made certain statements about his previous workplace injury).
Eleventh Circuit: Wolfe v. Postmaster General, 488 F.App’x 465, 468 (11th Cir. 2012) (stating that “a plaintiff need demonstrate only that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity,” and holding that termination of employee with ADHD was sufficient to establish disability under “regarded as” prong); Myers v. Winn-Dixie Stores, Inc., No. 8:10-CV-1987-T-17TGW, 2012 WL 529552, at *8 (M.D. Fla. Feb. 10, 2012) (“Under the ADAAA, whether or not an impairment substantially limits a major life activity is no longer relevant to the “regards as” test. An employer is deemed to have regarded the individual as having a disability if it makes an adverse decision based on an employer’s belief that the employee has an impairment.”); Beveridge v. HD Supply Waterworks, Ltd., No. 7:08-CV-52 (HL), 2009 WL 4755370, at *5 n.8 (M.D. Ga. Dec. 7, 2009) (stating that “under this broadened definition, [the plaintiff] would likely be successful in proving he was “regarded as” disabled” based on insomnia).
Through rules of construction, findings, and purposes, the ADAAA reflects Congress' intent that the "regarded as" prong be construed broadly, as it was in Arline. The ADAAA's textural changes discussing this broad scope of coverage, together with the EEOC's new regulations and guidance as well as helpful case precedent, follow.
a. ADAAA Statutory Text
ADAAA Rule of Construction No. 1: “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this chapter.”
ADAAA Finding No. 1: “[I]n enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage.”
ADAAA Finding No. 3: “[W]hile Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled.”
ADAAA Finding No. 4: “[T]he holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases 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.”
ADAAA Purpose No. 1: “The purposes of this Act are (1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA.”
ADAAA Purpose No. 3:
The purposes of this Act are . . . to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973.
b. EEOC Regulations and Guidance
The regulations restate the ADAAA’s goal of broad coverage and intent to move beyond the definitional question.
The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the [ADAAA’s] purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.
“Coverage under the “regarded as” prong of the definition of disability should not be difficult to establish. . . The ADAAA reiterates Congress’s reliance on the broad views enunciated in [Arline], and Congress “believe[s] that courts should continue to rely on this standard.” Accordingly, the ADA[AA] broadened the application of the “regarded as” prong. . . .”
"Congress did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage."
The regarded as prong, while broad, is not unlimited. It does not cover employees who are treated adversely based on a “transitory and minor” impairment. This is a narrow exception; only the most trivial impairments are transitory and minor. Although plaintiffs should anticipate this defense in the facts they allege, they need not disprove the elements of the defense as part of their prima facie case. It is the employer’s burden to assert that an impairment is “transitory and minor.” The ADAAA’s textual changes discussing this exception, together with the EEOC’s new regulations and guidance and judicial decisions interpreting this exception, follow.
a. ADAAA Statutory Text
Being regarded as having an impairment “shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”
b. EEOC Regulations and Guidance
The EEOC regulations confirm that both elements must be met-- essentially, “and” does not mean “or.” “To establish this defense, a covered entity must demonstrate that the impairment is both “transitory” and “minor.””
““[T]ransitory” is defined as lasting or expected to last six months or less.” “[An] individual who is denied a promotion because he has a minor back injury would be “regarded as” an individual with a disability if the back impairment lasted or was expected to last more than six months. Although minor, the impairment is not transitory.”
An objective test is used to apply this limitation on coverage.
Whether the impairment at issue is or would be “transitory and minor” is to be determined objectively. A covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.
The EEOC provides the following example,
an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor. At the same time, an employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor”.
“[A]s an exception to the general rule for broad coverage under the “regarded as” prong, this limitation on coverage should be construed narrowly.”
c. Case Precedent
Second Circuit: Davis v. N.Y.C. Department of Education, No. 10-cv-3812 (KAM)(LB), 2012 WL 139255, at *1-2, *6 (E.D.N.Y. Jan. 18, 2012) (holding that back and shoulder injuries requiring three month leave of absence, while transitory, were not minor).
Third Circuit: Gaus v. Norfolk Southern Railway Co., No. 09-1698, 2011 WL 4527359, at *17 (W.D. Pa. Sept. 28, 2011) (rejecting employer’s “transitory and minor” defense because employee’s chronic pain in joint, hands, and hip lasting in excess of one year was not “transitory”); see id. (“[Employer’s] subjective views regarding the temporary nature of [ [employee’s] impairment . . . are irrelevant.”); Cohen v. CHLN, Inc., No. 10-00514, 2011 WL 2713737, at *8 (E.D. Pa. July 13, 2011) (holding that employee submitted sufficient evidence that his back condition was not transitory and minor under “regarded as” prong because it began four months prior to termination and was not expected to “resolve[] permanently” (not transitory), and, in any event, his condition was perceived to be severe and ongoing (not minor); see id. (erroneously stating that impairments that are “transitory or minor” are excluded under “regarded as” prong) (emphasis added).
Fifth Circuit: Dube v. Tex. Health & Human Servs. Commission, No. SA-11-CV-354-XR, 2011 WL 3902762, at *4-5 (W.D. Tex. Sept. 6, 2011) (rejecting employer’s “transitory and minor” defense because “it is not apparent from the face of the complaint that [employee’s] impairment lasted less than six months or was otherwise “transitory” and “minor” as defined by the regulations.”).
Eleventh Circuit: Lewis v. Fla. Default Law Grp., No. 8:10-cv-1182-T-27EAJ, 2011 WL 4527456, at *5-7 (M.D. Fla. 2011) (holding that employee with flu was not disabled under “regarded as” prong because flu was “transitory and minor.”).
As references above, only employees alleging non-accommodation can seek coverage under prong 3; those alleging a failure to accommodate must seek coverage under the first two prongs of the definition of disability, as discussed in subsection II.B.2 below.
The ADAAA’s textual changes discussing this limitation, together with the EEOC’s new regulations and guidance and judicial decisions interpreting it, follow.
a. ADAAA Statutory Text
A covered entity “need not provide a reasonable accommodation or a reasonable modification to policies, practices or procedures to an individual who meets the definition of disability” under the third prong.
b. EEOC Regulations and Guidance
“A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong . . . or “record of” prong . . . but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong. . . .”
c. Case Precedent
Third Circuit: Fleck v. WILMAC Corp., No. 10-05562, 2011 WL 1899198, at *6 n.3 (E.D. Pa. May 19, 2011) (holding that coverage under “regarded as” prong applied only to employee’s discrimination claims and “not her claims for failure to provide reasonable accommodation”).
Seventh Circuit: Powers v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th Cir. 2011) (noting that employee was not entitled to reasonable accommodation under “regarded as” prong).
The ADA always has recognized two distinct types of claims--non-accommodation claims, which encompass everything from disparate treatment to harassment, and accommodation claims, which involve the failure to accommodate. The ADAAA sharpens this distinction by proffering a different disability showing for each. Part B addressed the disability showing for non-accommodation claims. This part addresses the showing for accommodation claims.
The ADA always has recognized two distinct types of claims--non-accommodation claims, which encompass everything from disparate treatment to harassment, and accommodation claims, which involve the failure to accommodate. The ADAAA sharpens this distinction by proffering a different disability showing for each. Part B addressed the disability showing for non-accommodation claims. This Part addresses the showing for accommodation claims.
As discussed above in Part B, the regarded-as prong is limited to non-accommodation claims. For accommodation claims, employees must seek coverage under one of the first two prongs of the ADA’s definition of disability. Specifically, employees must show that they have: (1) a physical or mental impairment that substantially limits one or more major life activities (hereinafter, “prong 1” or the “actual disability” prong); or (2) a record of such an impairment (hereinafter, “prong 2” or the “record of” prong).
As a result of the Supreme Court’s decisions in Sutton and Toyota, proving coverage under prongs 1 and 2 used to be a very difficult showing. It no longer is. While not as expansive as the regarded as prong, prongs 1 and 2 are far broader than ever before, thanks to a number of changes made by the ADAAA.
This part explains the most prominent changes.
The ADAAA rejects the high level of limitation imposed by the Supreme Court and the EEOC in their interpretation of disability, specifically the terms “substantially limits” and “major life activities.”Through rules of construction, findings, and purposes, the ADAAA creates a less demanding standard for qualifying as disabled by requiring that the definition of disability be construed broadly.This section summarizes the ways in which the ADAAA broadens the scope of coverage under prongs 1 and 2, with references to the statutory text, regulations and guidance, and select case law.
a. ADAAA’s Statutory Text
ADAAA Rule of Construction No. 1: “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.”
ADAAA Rule of Construction No. 2: “The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.”
ADAAA Finding No. 1: “[I]n enacting the Americans with Disabilities Act of 1990 (“ADA”), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage.”
ADAAA Finding No. 4: “[T]he holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases 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.”
ADAAA Finding No. 5: “[T]he holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA.”
ADAAA Finding No. 6: “[A]s a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.”
ADAAA Finding No. 7: “[I]n particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress.”
ADAAA Finding No. 8: “Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.”
ADAAA Purpose No. 1: “The purposes of this Act are (1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA.”
ADAAA Purpose No. 4:
The purposes of this Act are . . . (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”
ADAAA Purpose No. 5:
The purposes of this Act are . . . (5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits,” and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.
ADAAA Purpose No. 6: “The purposes of this Act are . . . (6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.”
The ADAAA removes the ADA’s “43 million Americans” finding (“some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older”) and replaces it with a new finding, “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination.”
The ADAAA removes the ADA’s “Discrete and Insular Minority” Finding (“Individuals with disabilities are a discrete and insular minority.”)
b. EEOC Regulations and Guidance
The law has “[b]road coverage.” The EEOC regulations confirm:
The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the Amendments Act’s purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.
“Congress did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage.”
c. Case Precedent
First Circuit: Brodsky v. New England School of Law, 617 F. Supp. 2d 1, 4 (D. Mass. 2009) (stating that “the ADA amendment is undoubtedly intended to ease the burden of plaintiffs bringing claims pursuant to that statute”).
