New England Biz Law Update
Almost two years have passed since Congress amended the Americans with Disabilities Act, lowering the criteria to establish disability status in response to cramped judicial interpretations of the ADA.
One of the most dramatic changes was to the ADA’s “regarded as” prong, which allows an individual to establish disability status by showing that an employer regarded the individual as having a mental or physical impairment, even if the individual had no impairment of any sort.
Previously, for liability to arise, a plaintiff needed to establish that the employer perceived the individual as having an impairment that “substantially limited” a “major life activity.”
While those qualifying limitations continue to apply to claims based on actual disability, they no longer apply to claims of perceived disability.
Reported decisions under the amendments have only recently started to emerge, with claims of perceived disability playing an increasingly starring role. It is as yet unclear whether Massachusetts courts and the Massachusetts Commission Against Discrimination will take a similarly expansive approach to the “regarded as” prong under the analogous provision of state law.
The ADA amendments
The Americans with Disabilities Act provides protection for individuals claiming employment discrimination based on disability status.
The ADA has a three-part definition of disability. An individual can establish disability status by showing: (1) he has an impairment that substantially limits a major life activity, (2) he has a record of such an impairment, or (3) the employer regards the individual as having an impairment, even if the individual is not, in fact, suffering from any medical condition. 42 U.S.C.A. § 12102(1).
The handicap discrimination provisions of Massachusetts law have a comparable three-part definition. G.L.c. 151B, §1(17).
Since the ADA’s enactment in 1990, courts frequently tossed out claims, holding that the plaintiff’s condition did not rise to the level of a “disability” within the meaning of the ADA.
Plaintiffs claiming discrimination based on cancer, epilepsy, diabetes and other serious conditions often had their claims dismissed where they failed to show to the courts’ satisfaction that their condition “substantially limited” any judicially recognized “major life activity.”
Massachusetts courts, construing the disability protections under Chapter 151B, have generally taken a more expansive approach.
In enacting the ADA Amendments Act, Congress rejected federal courts’ parsimonious approach to the ADA and lowered the criteria to establish a “substantial limitation” of a “major life activity.”
Congress expressly instructed courts to focus their energies on determining whether a plaintiff was discriminated against, not on whether the plaintiff qualified as “disabled,” noting that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Pub. L. No. 110-325, §2(b)(5), 122 Stat. at 3554.
Enhanced significance of ‘regarded as’ prong
The ADA Amendments Act carved out a significantly expanded role for the perceived disability prong.
Under the prior caselaw, an individual needed to show that the employer perceived the individual as having a mental or physical impairment that substantially limited a major life activity.
The ADA Amendments Act did away with those qualifications; a plaintiff could now establish disability status by showing simply that the employer perceived the individual as having an impairment and nothing more. 42 U.S.C.A. §12102(3)(A).
While an employee claiming disability status based on actual disability needs to satisfy the threshold considerations (i.e., showing a “substantial limitation” of a “major life activity”), an employee who proceeds on a perceived disability claim no longer needs to make any such showing.
Accordingly, the “regarded as” prong has become the easiest way for a plaintiff to establish that he meets the statutory definition. For that reason, when the EEOC promulgated regulations in 2011 to implement the changes to the ADA, it advised prospective plaintiffs that the “regarded as” prong should now be the preferred route for establishing a disability discrimination claim of wrongful termination, failure to hire or the like. 29 C.F.R §1630.2(g)(3).
There are two important limitations to the expanded application of the “regarded as” prong.
First, a perceived impairment will not qualify for disability status if it is “transitory and minor.” 42 U.S.C.A. §12102(3)(B). A transitory impairment is one “with an actual or expected duration of 6 months or less.” Id.
Second, the ADA amendments make clear that the duty to provide a reasonable accommodation will not apply to disabilities that qualify only under the “regarded as” prong. 42 U.S.C.A. §12201(h).
Recent decisions under the ‘regarded as’ prong
Where reasonable accommodation is not at issue, plaintiffs are now pressing forward, with greater success than under the pre-Amendment ADA, on “regarded as” claims.
Following are some recent cases discussing the amended “regarded as” provision:
• Alcoholism: A police officer who was transferred to an inferior position allegedly for misconduct filed an ADA claim in which he contended that he was transferred based on his employer’s belief that he was an alcoholic. The employer moved for summary judgment, arguing that there was no evidence that the employer perceived the plaintiff to be substantially impaired in any major life activity. The court rejected that argument, pointing out that the language of the ADA had changed and that was no longer a requirement. Darcy v. City of New York, 2011 WL 841375 (E.D.N.Y. 2011).
• Obesity: After her discharge for alleged performance deficiencies, a receptionist filed a complaint, alleging disability discrimination (based on obesity) as well as age and race discrimination. The employer moved to dismiss the disability claim, citing to pre-amendment cases rejecting obesity as a disabling condition. The court allowed the claim to proceed, explaining that the amendments to the ADA have changed the analysis. The court explained that the plaintiff could meet the “regarded as” prong based on allegations that her employer regarded her weight as an impairment. The court also noted that she might meet the actual disability prong under the amended statute based on allegations that she was substantially impaired in walking. Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. 2010).
• Genital herpes: A grocery story stock person who was discharged one day after his supervisor learned that he had genital herpes filed an ADA claim. The employer moved to dismiss the claim, arguing that genital herpes was not a disability. Quoting the amended statute, the court allowed the claim to proceed. Davis v. Larry’s IGA, 2010 WL 746433 (E.D. Mich. 2010).
• Monocular vision: A punch press operator with monocular vision who worked at a sheet metal fabrication company was discharged after taking medical leave for an unrelated condition. He filed an ADA claim. The defendant moved to dismiss, arguing that the plaintiff failed to allege that he was substantially limited in any major life activity or that he was regarded as impaired to that degree. The court denied the motion. In its discussion of the “regarded as” prong, the court noted that the allegations might have failed the pre-amendments act test but easily satisfied the revised standard. Gil v. Vortex, LLC, 697 F.Supp.2d 234 (D. Mass. 2010).
Courts have rejected conditions under the “transitory and minor” exclusion when there was clear evidence that the conditions lasted less than six months. See Dugay II v. Complete Skycap Services, Inc., 2011 WL 3159171 (D. Ariz. 2011) (neck and back injuries from car accident did not qualify as ADA disabilities where the employee received full clearance to return to work within three months); Budhun v. Reading Hosp. and Medical Center, 2011 WL 2746009 (E.D. Pa. 2011) (fractured finger that healed within three months was not an ADA disability); George v. TJX Cos., 2009 WL 4718840 (E.D.N.Y. 2009) (fractured arm that healed within two months was not an ADA disability).
Implications
As the above cases illustrate, the amendments to the ADA have altered the landscape in several significant ways.
First, and most fundamentally, most conditions now fall within the scope of the ADA. Under the liberalized “regarded as” prong, even those conditions that do not substantially limit a major life activity are now protected.
Second, because more cases are surviving motions to dismiss, the battleground has shifted to the motivation for an employer’s acts, and employers will now need to support and defend their actions. Previously, the courts frequently never reached that issue, instead dismissing claims at the outset where the alleged “disability” did not meet the exacting criteria of the pre-amendments ADA. Early dismissal will now apply only to those conditions falling within the “minor and transitory” exclusion.
Third, plaintiffs’ counsel will need to re-evaluate whether to allege ADA claims. While such claims may have been omitted in the past to avoid removal to federal court, the reduced standards of the ADA may now provide an easier path to proving a claim than under state law.
There have been no Massachusetts appellate court decisions construing the “regarded as” prong under Chapter 151B since the ADA amendments went into effect. The Supreme Judicial Court had previously weighed in, holding that the “regarded as” prong under 151B requires a showing that the employer perceived the plaintiff as having an impairment that “substantially limits” a “major life activity.” City of New Bedford v. Massachusetts Comm’n Against Discrimination, 440 Mass. 450, 462-63 (2003).
It remains to be seen whether the Massachusetts courts will follow the approach of the amended ADA and lower the bar for Massachusetts plaintiffs seeking relief under 151B’s “regarded as” prong.
Advice to employers
Under federal law, the “regarded as” prong has become the easiest way of establishing disability status when reasonable accommodation is not at issue. The cases emerging under the amended ADA reflect the new reality.
It is unclear whether Massachusetts courts will change the analysis of state law to match the new federal standard. Until and unless that change occurs, the ADA is likely to become a more prominent and powerful weapon in the arsenal of Massachusetts plaintiffs’ lawyers.
For employers fighting the new ADA “regarded as” claims, the availability of an early knock-out blow based on whether the plaintiff can prove disability status has been greatly diminished.
That means employers must be more prepared than ever to defend claims on the merits of the employer’s decision-making — and that means employers must make sure that the non-discriminatory rationale for the adverse action at issue (termination, failure to hire, etc.) is clear and consistent.
And, especially with respect to actions taken against existing employees, an employer should be prepared to show that the issues leading to the adverse action were adequately communicated to the employee.
An employer’s demonstrable history of communication and documentation of the issues will often prove the decisive element in a successful defense of a discrimination claim, including at the summary judgment stage.
Laurie F. Rubin is a partner in Prince, Lobel, Tye’s employment law and litigation practice groups, where her practice focuses on employment discrimination and wrongful termination issues. Daniel S. Tarlow is chairman of the Boston firm’s employment law practice group and serves on its management committee.
