As promised, this post continues where the prior post quit, with the “regarded as” definition of disability. As one court has said, the “regarded as” definition:
actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.
Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995).
However well meaning it may be, and I do not doubt the sincerity of the goal, the 2008 ADA Amendments include sloppy drafting. It provides that one has a disability if one is “regarded as” having “such an impairment” (emphasis added). Now, to digress, I long ago banished the word “such” from my documents unless I can use it the way Shakespeare used it, e.g., “parting is such sweet sorrow.” Lawyers tend to use “such” to avoid clarity.
In the ADA, however, "such" is an unmistakeable reference to the requirement in the first two definitions that an impairment must substantially limit a major life activity. The amendment, however, then defines a definition (remember that “regarded as” already defines what is a “disability”) to make the “such” in the “regarded as” definition superfluous:
(A) 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 Act 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) Paragraph (1)(C) 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.
The stated reason for this change is to legislatively overrule that part of Sutton which had held that being disqualified from a single job is insufficient and that to meet the regarded as standard the individual must show that they were perceived as unable to perform a broad range of jobs utilizing the same skills. At the same time, Congress requires the impairment to be substantial enough to last at least 6 months or more.
Whether the legislation, read literally, accomplishes its goal is doubtful beause the definition of a definition is circular. To be “regarded as” having a disability the individual must also establish she has been “subjected to an action prohibited” by the ADA. How exactly does one establish that an action is prohibited by the ADA without establishing that on has a disability in the first place?
The House report explains that the regarded as definition of disability “was meant to express the Committee’s understanding that unfounded concerns, mistaken beliefs, fear, myths, or prejudice about disabilities are often just as disabling as actual impairments, and its corresponding desire to prohibit discrimination founded on such perceptions.”
In keeping with this goal, what Congress meant to say was that one is regarded as having a disability “if the individual shows that an action (e.g., disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.”
As a practical matter, the new definition will no longer examine what the employer believed about the limitation to a major life activity but ask, whether the employer, at the time it took the adverse employment action, believed the employee had a non-transitory mental or physical impairment. Some might read this to say that an employer cannot take an employment action based upon the actual mental or physical impairment. But because Congress retained the myths and prejudice explanation in the legislative history, any “regarded as” claim will still examine whether or not the employer’s action was based upon myths and prejudices instead of sound medical judgment.
That is, as many courts have explained, to show one is “regarded as” having a disability, one must show the employer “entertained misperceptions” about his abilities. Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665 (6th Cir. 2008); citing Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (defendant "was not wrongly viewing [the employee] through a stereotype of disability, 'but rather follow[ed] the specific recommendations of [a] treating physician'" (quoting Cannon v. Levi Strauss & Co., 29 F. App'x 331, 336 (6th Cir. 2001)).
On other points, Congress resolved one debate in the courts by specifying that it is not a discriminatory act for an employer to not provide a reasonable accommodation when someone is “regarded as” having an impairment. This recognizes that the only realistic accommodation in this situation was to not regard the individual as having an impairment. After all, how does one accommodate a myths or a prejudice short of eliminating it?
There are other provisions in the ADA amendments worth mentioning. The Amendments prohibit “reverse” ADA claims, i.e., claims which allege discrimination on account of not having a disability. As far as I knew, reverse ADA claims were exceptionally rare to non-existent. And employers who are also places of public accommodation should remember that the broader definitions of “disability” will also affect the employer’s public accommodation obligations.
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