This section provides a checklist for plaintiffs and their lawyers to *57 use to help take advantage of all that the ADAAA has to offer in pleading disability under the ADA, as amended.212 Consistent with the ADAAA’s purpose, which is “to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis,”213 this checklist is not intended to be a talismanic test for pleading disability. Rather, it is intended to point plaintiffs and their attorneys to the most important changes made by the ADAAA, as well as the statutory sections, regulatory provisions, and case law precedent that may be cited in pleadings to support those changes. Findings from our study are included where appropriate. Although plaintiffs and their lawyers would be wise to consult this checklist, they are not required to follow the checklist to the letter to make out a successful claim of disability under the ADA, as amended.
A. Reference that the ADA has been amended
1. State that the claim is brought under the “ADA as Amended” and cite the statute (not “under the ADAAA”; the ADA is the discrimination statute that supports the claim).
2. State that, because of the date of the actions complained of, the greatly expanded definition of the ADA Amendments Act of 2008 (and/or parallel state law changes) applies. Only two complaints (1.40% of complaints) stated that the expanded definitions of the ADAAA apply because of the date the action occurred.*58
B. Identify the Impairment
1. Expressly identify the diagnosis by name and refer to it as a physical or mental impairment; do not simply call it a “disability” or impairment or the like.
* Of the complaints that allege claims under prong 1 and/or prong 2, 15.33% fail to reference any impairment by name; 18.18% of all complaints failed to do so.
2. Review Appendix A. If the impairment is included in the list, include a reference to the EEOC regulation or case(s) that has already found the impairment to be a disability.
3. If the impairment is physical, use the term “physiological,” which is the term used by the EEOC to define a physical impairment.
* No complaint used the term “physiological” to identify a physical impairment.
4. Briefly explain how the impairment affects a body system if physical.
C. Allegations to Include in Non-Accommodation Claims
1. When alleging a non-accommodation claim, state that the employee has a disability under the newly expanded regarded as prong, as follows.
* Despite the breadth of the regarded as prong, a staggering 62.50% of complaints alleging a non-accommodation claim failed to raise it. Numerous courts share the apparent confusion regarding the newly expanded regarded as prong.*59 215
2. Expressly identify the prohibited action (e.g., failure to hire, termination, demotion, harassment, discrimination by association).
3. State that the prohibited action occurred because of an actual or perceived physical or mental impairment, and include causation facts (direct or pretext-type evidence).
4. State that the employee does not have to identify any major life activity or major bodily functions that are substantially limited, and cite the relevant ADAAA/EEOC regulations.216
5. In anticipation of “transitory and minor” defense:
(a) state that the duration--or expected duration--of the impairment (i.e., the diagnosis--not just the manifestations) is greater than 6 months (don’t use word “transitory” because that is a defense, not an element of the claim);
(b) if the duration is--or is expected to be--less than 6 months (i.e., the diagnosis--not just the manifestations), state facts to show that the impairment is more than minor (e.g., showing of pain) (29 C.F.R. § 1630.2(j)(4)(ii)) (don’t use word “minor” because it is a defense, not an element of the claim).217
6. The regarded as prong is the easiest way to prove coverage in a non-accommodation case. However, because some courts continue to misunderstand this prong, employees’ lawyers should, in an abundance of caution, also plead prong 1 (actual impairment) and/or prong 2 (past impairment) in a non-accommodation case. Subsection D discusses pleading “disability” under these two prongs.
D. Allegations to include in Accommodation Claims
2. State that “major life activity” and “substantial limitation” are to be construed as broadly as possible and cite to ADAAA/EEOC regulations.
3. State that, under the ADAAA, “major life activities” include “major bodily functions.”
4. List at least one major bodily function that is substantially limited by the identified impairment, and allege facts about how the major bodily function is substantially limited by the identified impairment.
5. If applicable, cross-reference the relevant major bodily function(s) in the ADA and/or EEOC regulations.
6. List at least one major life activity that is substantially limited by the identified impairment, cross-reference the relevant major life activity in the ADA and/or EEOC regulations; and allege facts about how the major life activity is substantially limited by the identified impairment.
7. Do not list the major life activity of “working” except as a last resort, and--even then--do not make it the sole major life activity alleged. (“Working” still requires evidence (albeit lesser now) regarding the impact on a “broad range or class of jobs.”)
* 17.52% of complaints that included prong 1 and/or 2 claims listed working as a major life activity that was substantially limited by the identified impairment.
* 7.30% of complaints that included prong 1 and/or 2 claims listed working as the only major life activity that was substantially limited.*61220
8. State “[i] the condition under which the individual performs the major life activity; [ii] the manner in which the individual performs the major life activity; [iii] and/or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity.”221
9. Specifically note that “condition,” “manner,” and “duration” are not “required “factors” that must be considered as a talismanic test.”222
10. If applicable, state that the impairment falls within the EEOC’s list of “predictable assessments,”223 and note that it is not necessary to include an analysis of “condition,” “manner,” or “duration” for an impairment included in the EEOC’s list of “predictable assessments.”224
* No complaint referenced the “predictable assessments” regulation, even when the impairment was included in the list.
11. State that the impairment must be assessed without regard to mitigating measures, and cite to the ADAAA and/or EEOC regulations.225
12. Identify the mitigating measure(s) used (e.g., medication, therapy), and describe what the condition would be like without the mitigating measure(s).
* Only 15.33% of cases identified a mitigating measure. Only seven complaints (or a third of the cases that identified one) described what the condition would be like without mitigating measures.
13. If the impairment is episodic or in remission, state as much, and (i) note that, under the ADAAA, the impairment must be assessed in its active state, with cites to the ADAAA and/or EEOC regulations,226 and (ii) describe the impacts of the impairment in that active state.
* At least 39.16% of complaints identified typically episodic *62 impairments (e.g., mental impairments, cancer, epilepsy), however, only 5.84% stated that the condition was in remission or episodic. None alleged that the impairment must be assessed in its active state, with citations, and a description of the active state.
All text for this checklist is taken from Pleading Disability After the ADAAA, 31 Hofstra Lab. & Emp. L.J. 1. (co-authored by Kevin Barry, Brian East, & Marcy Karin).