You and the Law



Changes to the Meaning of Disability Under the ADA, Part 2

By: Doug Ehlke

Saturday, August 01, 2009
The Americans with Disabilities Act (ADA) affords protection to a class of citizens who have a disability. But what does it mean to be disabled under the ADA? This issue has spawned considerable litigation under this federal law.

Under the ADA, a person is disabled if they meet one of the following three criteria: 1) The person has a physical or mental impairment that substantially limits one or more of the person’s major life activities, 2) There is a record of such an impairment of that person, or 3) The person is regarded as having such an impairment.

In 2008 (effective January 1, 2009) President Bush signed into law the ADA Amendments Act of 2008 (ADAAA). The ADAAA has changed how we interpret the above criteria to determine whether or not a person has a disability.

Last month, in Part 1, we focused on how the ADAAA has changed how the ADA views whether or not a person has a physical or mental impairment that substantially limits one or more of the person’s major life activities.

This month, in Part 2, we look at how the ADAAA has changed how a person is regarded as having an impairment.

First, what does “regarded as” mean? Under the ADA, to say that a person was “regarded as” having a disability means that the person was discriminated against by the employer for having a disability. “Regarded as,” the ADA equivalent of a discrimination claim based on age or race, is a discrimination claim based on a disability, whether or not there actually is a disability.

The ADAAA has changed the level of proof required to show that an individual has been regarded as having a disability. Prior to the ADAAA, it had to be shown that a person did not have an impairment that substantially limited a major life activity, but that the employer treated the person that . Under the ADAAA, this definition has been expanded to mean that an employer will be deemed to have regarded a person as having a disability if that person has been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment, whether or not that impairment limits or is perceived to limit a major life activity. In other words, meeting the “major life activity” threshold has been removed. However, the ADAAA does exclude impairments that are transitory (expected duration of six months or less) and minor.

Prior to the ADAAA, the Equal Employment Opportunity Commission had taken the position that an employer does not have a duty to provide a reasonable accommodation to someone who is only covered under the ADA because that person is regarded as having a disability. The theory behind this position was that the barrier involved in a “regarding as” case is not a physical or medical barrier, but rather the employer’s alleged discriminatory attitude.

The ADAAA supports this position by making it clear that employers are not required to offer accommodations to employees who claim they were “regarded as” disabled. The interesting result here is that if an employee makes an actual request for a reasonable accommodation, it will greatly reduce an employee argument that he was “regarded as” being disabled, because the employee is the one who requested the accommodation in the first place.

“Regarded as” claims arise when a company takes action that either is based, or can be construed as being based, on an impairment or perceived medical condition. For this reason, companies have started to remove any issues regarding medical conditions, need for accommodations or medical leaves of absences from anyone who has input regarding the employee’s job status (such as promotion, termination, changes, etc.). Employee requests will go to a separate person or department so that if an employee is later fired, the person making that decision (such as a manager) can claim that he was not aware of any special requests made by the employee, thereby avoiding a “regarded as” claim. Employers can avoid “regarded as” claims by basing all decisions on an employee’s actual work performance, rather than an employee’s medical condition or impairment.

If you would like a copy of the ADAAA, please contact Ehlke Law Offices. MF



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