We’ve heard the phrase “regarded as disabled,” but what exactly does that mean? And what does it look like in practice?
Quick Answer
Under the ADA, an individual is “regarded as disabled” if they are subjected to an adverse job action because of an actual or perceived physical or mental impairment – unless the impairment is both transitory (lasting six months or less) and minor.
Legal Perspective
Pierson Ferdinand LLP
Washington, District of Colombia
As for what it means, the ADA defines a disability as: (A) a physical or mental impairment that substantially limits one or more major life activities. But that’s only part of the definition, explains employment law attorney Amy Epstein Gluck. The full definition includes two more alternatives: or (B) has a record of such impairment or (C) being regarded as having such an [physical or mental] impairment.
The ADA is codified at 42 U.S.C. 12102. The definition of disability is in Section 1, and it includes (A), (B), and (C).
In such cases, a plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action.
In practice, this sometimes comes up when an employee returns from back or heart or some other kind of surgery and is released to work without restriction. However, when the employee returns, some managers may put restrictions on the employee’s ability to work, transfer the person to another job or a part-time schedule or even terminate the individual.
For example, in EEOC v. Blue Sky Vision, LLC, the EEOC sued a management services organization that supports eye care providers for violating the ADA because the organization (i) told the employee that his medical condition made him a liability and he should resign; (ii) subjected the employee to an unlawful medical inquiry; and (iii) then fired him, all because management “perceived” this employee to be disabled.
Relevant Case Law
Babb v. Maryville Anesthesiologists
Baum v. Metro Restoration Services, Inc.
Raytheon Co. v. Hernandez
HR Insight
Melmark
Andover, Massachusetts
Under the ADA, “regarded as disabled” refers to a person who is regarded as having a disability, says Director and Head of HR Mary Morris.
However, a person who is “regarded as disabled” does not necessarily have an impairment that substantially limits a major life activity or does so only as a result of the attitudes of others toward them. This includes people who do not have an impairment but are treated by an organization as having one.
The “regarded as disabled” provision of the ADA is designed to protect people who may be discriminated against because of stereotypes or fears regarding people with disabilities. It is a safety net for people who might be discriminated against based on erroneous assumptions.
Because the ADA requires reasonable accommodation for individuals who are “regarded as disabled”, employers must be careful to engage in the interactive, reasonable accommodation dialogue required under the ADA. They cannot make premature conclusions about a person’s ability to do their job. It is important to accurately assess the impact of a person’s illness or injury on their ability to perform a particular job. Employers must be careful not to misinterpret doctor’s notes submitted by employees.
Runtal North America Inc.
Ward Hill, Massachusetts
According to HR Manager Beth Calitri, “regarded as” means the person either:
- Has an impairment that does not substantially limit a major life activity
- Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them, or
- Does not have any impairment but is treated by an entity as having an impairment.
Rare Parts Inc.
Stockton, California
It’s when a person has an impairment that does not limit a major life activity substantially, says HR Manager Chad Miranda.
In practice, it is other people’s perception that the individual’s perceived disability does limit the major life activity when it actually doesn’t.
The Cost of Noncompliance
Employer pays $67K to settle ‘regarded as’ ADA claim
Who was involved: Blue Sky Vision, LLC, a Delaware-based management services organization that provides support to eye care providers, and a former employee who worked at a location in Michigan.
What happened: In 2018, the employee was hired as an optometrist. About three months later, he mentioned his medical condition to a co-worker. A short time later, management learned of the employee’s condition, called him a liability and sought his resignation, the EEOC claimed. When the employee said management’s actions were illegal, the company allegedly placed him on leave and “required him to submit to an overly broad and intrusive medical inquiry” that was unrelated to his ability to perform his job. When he refused to submit to the inquiry, he was fired. The EEOC said the company’s decision to fire a worker who was regarded as disabled amounted to a violation of the ADA.
Result: The company paid $67,590 to settle the claim. It also agreed to:
- Provide employee training on the provisions of the ADA, and
- Implement a policy prohibiting disability discrimination.
Info: Blue Sky Vision Pays $67,590 to Resolve EEOC Disability Discrimination Suit, 2/22/22.
Eighth Circuit upholds $160K jury award to applicant with arthritis, heart problems
Who was involved: Titan Distribution, Inc., a manufacturer of wheels, tires and related components, and an applicant in Iowa who has arthritis and a history of heart problems.
What happened: After a buy-out, Titan announced it would be hiring only a portion of the existing employees as a business strategy to save money. Anyone who wanted to work for Titan had to apply for a position and submit to a qualifying physical. After a physical, the applicant was cleared to drive a forklift, an essential job function. However, the doctor reported that a functional capacity exam would be needed if the job required heavy lifting. After initially informing the applicant that he’d passed the exam, the company told him he’d failed. The applicant filed a lawsuit. At trial, the company changed its reason for not hiring him, asserting that it had eliminated the shift he’d applied for. A jury awarded the applicant $60,000 in back pay and $100,000 in punitive damages under the ADA and state law. The company appealed.
Result: The Eighth Circuit upheld the awards, explaining:
- the company didn’t eliminate the shift until weeks after it rejected the applicant, and
- its assertion that heavy lifting was a job requirement was suspect because it didn’t include the task of heavy lifting in its job description.
The company wrongly regarded the applicant as disabled, so the appeals court affirmed the jury award.
Info: Chalfant v. Titan Distribution, 475 F.3d 982 (8th Cir. 2007).
Trucking company pays $40K to resolve EEOC lawsuit over ‘back assessment’ hiring test
Who was involved: Hirschbach Motor Lines, Inc., a national trucking company headquartered in Iowa, and three applicants who were not hired on the basis of a failed back assessment.
What happened: The EEOC alleged the company violated the ADA by using a pre-employment back assessment to screen out and reject job applicants it regarded as disabled for truck-driving positions. The back assessment tested, among other things, an applicant's ability to balance and stand on one leg, touch toes while standing on one leg, and crawl. The EEOC said that Hirschbach used the back assessment to screen out job candidates with pre-existing injuries and/or unrestricted medical conditions who had received conditional offers of employment, despite the fact that the applicants had already received medical certifications that authorized them to drive a truck from the Department of Transportation.
Result: The company agreed to pay $40,000 to settle the suit. The money will be distributed to three applicants who were denied employment based on the back assessment testing requirement. The company also had to:
- Stop using the back assessment test.
- Adopt a reasonable accommodation policy.
- Provide training to managers on the ADA and the new accommodation policy.
- Provide semi-annual compliance reports to the EEOC.
Info: Hirschbach Motor Lines to Pay $40,000 and Cease Discriminatory Screening to Settle EEOC Suit, 8/22/19.
Key Takeaways
- The ADA protects people who are regarded as disabled from discriminaton.
- A person is regarded as disabled if they are subjected to a negative job action based on an actual or perceived impairment that is not transitory and minor.
- People who are regarded as disabled are not entitled to reasonable accommodation under the ADA.
- A person claiming discrimination under the ADA’s “regarded as” prong does not need to show a substantial limitation of a major life activity.
- An employer cannot successfully defend a “regarded as” ADA claim by asserting that it believed an impairment was transitory and minor if the impairment was not in fact transitory and minor.
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