* The text of this page is excerpted from Pleading Disability After the ADAAA, 31 Hofstra Lab. & Emp. L.J. 1. (co-authored by Kevin Barry, Brian East, & Marcy Karin).


 


The first step in proving disability under the ADA is showing that plaintiffs have, once had, or are perceived as having a "physical or mental impairment."

“Physical or mental impairment” was left undefined in the text of the ADA, and it remains so under the ADAAA. That said, the ADAAA maintains the regulatory definition of “physical and mental impairments” as promulgated by the EEOC and included in the regulations of the Department of Justice and Department of Education. Under these regulations, physical and mental impairments are defined as:

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or [a]ny mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

In contrast to the definition of substantially limits and major life activities, the EEOC’s definition of “physical or mental impairment” has always been broad--nearly any diagnosis will suffice. Recent changes to the EEOC regulations and guidance clarify this breadth. 

These administrative changes, together with case precedent, follow.

1. EEOC Regulations and Guidance

New body systems--the immune and circulatory systems--are added to the regulatory definition of “physical impairment.” Further, the regulation clarifies that the list of body systems is non-exhaustive.

Pregnancy, by itself, is not an impairment; however, pregnancy- related impairments may be covered.

2. Case Precedent

Third Circuit: Medvic v. Compass Sign Co., LLC, No. 10-5222, 2011 WL 3513499, at *5 (E.D. Penn. Aug. 10, 2011) (holding that stuttering was an impairment).

Fifth Circuit: Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1185 (E.D. Tex. 2011) (holding that renal cancer was “physical impairment” and citing the EEOC’s post-ADAAA regulations defining “physical impairment”); Lowe v. American Eurocopter, LLC, No. 1:10CV24-A-D, 2010 WL 5232523, at *6-8 (N.D. Miss. Dec. 16, 2010) (holding that employee stated claim that her obesity was impairment under the ADAAA).

Sixth Circuit: Kravits v. Shinseki, No. 10-861, 2012 WL 604169, at *5 (W.D. Pa. Feb. 24, 2012) (irritable bowel syndrome is impairment); Wells v. Cincinnati Children’s Hospital Medical Center., 860 F. Supp. 2d 469, 480 (S.D. Ohio 2012) (“[G]astrointestinal problems which caused Plaintiff nausea, vomiting, and diarrhea clearly qualify as a physiological disorder.”).

Seventh Circuit: Heatherly v. Portillo’s Hot Dogs, Inc., No. 11 C 8480, 2013 WL 3790909, at *6 (N.D. Ill. July 19, 2013) (“[Employee] presented sufficient evidence to create a triable issue of fact as to whether her high risk pregnancy rendered her disabled under the ADAAA”).

Eighth Circuit: Price v. UTI, U.S., Inc., No. 4:11-CV-1428 CAS, 2013 WL 798014, at *3 (E.D. Mo. Mar. 5, 2013) (““[P]hysical impairment” includes . . . an impairment or complication related to pregnancy.”).

B. “Disability” Showing for Claims that Do Not Involve a Request for Accommodation

The ADA has always recognized two distinct types of claims--non-accommodation claims, which encompass everything from disparate treatment to harassment, and accommodation claims, which involve the failure to accommodate. The ADAAA sharpens this distinction by proffering a different disability showing for each. This part addressed the disability showing for non-accommodation claims.

Under the ADA, as amended, employees alleging a non-accommodation claim--that is, discrimination that does not involve a failure to accommodate--should normally seek coverage under prong 3 of the ADA’s definition of disability, the “regarded as” prong. The reason for this is simple: the regarded as prong is now the broadest prong and therefore the easiest way to prove coverage under the ADA, but it only protects those alleging a non-accommodation claim. 

A brief description of the ADAAA's changes to the regarded as prong, and its implications for non-accommodation claims, follows.

1. New-and-Improved “Regarded As” Prong

In 1987, in School Board of Nassau County v. Arline, the Supreme Court broadly interpreted the Rehabilitation Act’s “regarded as” prong to cover anyone who is adversely treated based on an impairment. The Court did not dwell on the employer’s subjective beliefs about the employee’s functional limitations; it was enough that the employee was terminated because of a diagnosis (in that case, tuberculosis). In 1999, in Sutton v. United Airlines, the Supreme Court reversed course, interpreting the ADA’s “regarded as” prong very narrowly. To prove coverage under the “regarded as” prong, the Court said employees must show that their employers perceived them as having an impairment that substantially limited them in a major life activity. Proving the subjective mental state of an employer is, of course, a tall order because few employers “make[] the mistake of articulating the depths of [their] prejudices or the exact nature of [their] motivation.” Where the major life activity at issue was working, the order was taller still; employees had to show that their employers perceived them as having an impairment that limited them not in one job, but rather in a broad range of jobs.

The ADAAA redefines the “regarded as” prong (sometimes referred to as “prong 3”) in dramatic fashion, making it the broadest prong under which to prove coverage. An employee is no longer required to show that a covered entity perceived the employee as having an impairment that substantially limits him or her in a major life activity.Now, an employee need only show that he or she: (1) actually has, or is perceived by the employer as having, an impairment; and (2) was subjected to an adverse action (i.e., non-selection, demotion, termination, harassment, discrimination by association, or denial of any other term, condition or privilege of employment, but for defenses) because of the actual or perceived impairment. In non-accommodation cases, employee’s lawyers should plead the new-and-improved regarded as prong. The ADAAA’s textual changes, together with the EEOC’s new regulations and guidance as well as helpful case precedent, follow.

a. ADAAA Statutory Text

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 chapter 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. EEOC Regulations and Guidance

Prong 3 is the primary means of coverage in non-accommodation cases:

Where an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, . . . the evaluation of coverage can be made solely under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.

No showing of limitation is required. “Whether an individual’s impairment “substantially limits” a major life activity is not relevant to coverage under paragraph (g)(1)(iii) (the “regarded as” prong) of this section.”

To qualify for coverage under the “regarded as” prong, an individual is not subject to any functional test . . . . The concepts of “major life activities” and “substantial limitation” simply are not relevant in evaluating whether an individual is “regarded as having such an impairment” . . . . This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the “regarded as” prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment.

Prong 3 coverage requires a showing of causation. “[A]n individual is “regarded as having such an impairment” any time a covered entity takes a prohibited action against the individual because of an actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action.”

The fact that the “regarded as” prong requires proof of causation in order to show that a person is covered does not mean that proving a “regarded as” claim is complex. While a person must show, for both coverage under the “regarded as” prong and for ultimate liability, that he or she was subjected to a prohibited action because of an actual or perceived impairment, this showing need only be made once. Thus, evidence that a covered entity took a prohibited action because of an impairment will establish coverage and will be relevant in establishing liability, although liability may ultimately turn on whether the covered entity can establish a defense.

To illustrate how straightforward application of the “regarded as” prong is, if an employer refused to hire an applicant because of skin graft scars, the employer has regarded the applicant as an individual with a disability. Similarly, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability. . . . [ [And] an employer who terminates an employee with angina from a manufacturing job that requires the employee to work around machinery, believing that the employee will pose a safety risk to himself or others if he were suddenly to lose consciousness, has regarded the individual as disabled. Whether the employer has a defense (e.g., that the employee posed a direct threat to himself or coworkers) is a separate inquiry [that goes to ultimate liability].

Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.”

Establishing that an individual is covered under the “regarded as” prong “does not, by itself, establish liability. Liability is established under title I of the ADA only when an individual proves that a covered entity discriminated on the basis of disability. . . .” “Whether a covered entity can ultimately establish a defense to liability is an inquiry separate from, and follows after, a determination that an individual was regarded as having a disability.”

Showing an adverse action is sufficient to establish liability; under the regulations, a showing of myths, fears, or stereotypes is not required. “Where an employer bases a prohibited employment action on an actual or perceived impairment that is not “transitory and minor,” the employer regards the individual as disabled, whether or not myths, fears, or stereotypes about disability motivated the employer’s decision.”

The EEOC’s final regulations delete the proposed regulations’ prohibition of discrimination based on the symptoms of or mitigating measures used for an impairment.

The Commission believes that it requires a more comprehensive treatment than is possible in this regulation. Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the “regarded as” prong [discussed in the proposed regulations]. No negative inference concerning the merits of this issue should be drawn from the deletion.

c. Case Precedent

First Circuit: Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 24041 (D. Mass. 2010) (holding that employee stated claim that he was disabled under “regarded as” prong because employer terminated him based on his monocular vision).

Second Circuit: Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012) (“Although both parties thought that Hilton needed to demonstrate that the defendants regarded him as being substantially limited in a major life activity, it is clear that he was only required to raise a genuine issue of material fact about whether [defendants] regarded him as having a mental or physical impairment.”) (emphasis added); Davis v. NYC Department of Education, No. 10-cv-3812 (KAM)(LB), 2012 WL 139255, at *1-2, *6 (E.D.N.Y. Jan. 18, 2012) (holding that employee stated claim that she was disabled under the ADAAA’s “new, more lenient” prong 3 because employer evaluated employee’s performance as unsatisfactory and denied her full amount of bonus after employee took leave of absence to treat back and shoulder injury); Darcy v. City of New York, No. 06-CV-224 (RJD), 2011 WL 841375, at *4 (E.D.N.Y. Mar. 8, 2011) (holding that employee presented sufficient evidence that he was disabled under “regarded as” prong based on employer’s transfer of employee to new position five months after employer commented that employee was alcoholic).

Third Circuit: Estate of Murray v. UHS of Fairmount, Inc., No. 10-2561, 2011 WL 5449364, at *69 (E.D. Pa. Nov. 10, 2011) (holding that employee presented sufficient evidence that she was disabled under “regarded as” prong because she was terminated several days after informing her supervisor of her depression and explaining that [u]nder pre-ADAAA case law, [employee’s] evidence would almost certainly have failed to demonstrate substantial limitation. But post-ADAAA, the result is more uncertain given the statute’s command that “substantially limits” is not meant to be a demanding standard.”); Gaus v. Norfolk Southern Railway Co., No. 09-1698, 2011 WL 4527359, at *18-20 (W.D. Pa. Sept. 28, 2011) (denying employer’s motion for summary judgment for events occurring after the ADAAA’s effective date, and holding that employee was disabled under the “regarded as” prong when employer medically disqualified employee from returning to work after FMLA leave based on employee’s chronic pain in joints, hands, and hip); Cohen v. CHLN, Inc., No. 10-00514, 2011 WL 2713737, at *8 (E.D. Pa. July 13, 2011) (holding that employee had submitted sufficient evidence that he was disabled under the “regarded as” prong based on his termination one day after notifying his employer that he may need back surgery); Fleck v. WILMAC Corp., No. 10-05562, 2011 WL 1899198, at *6 (E.D. Pa. May 19, 2011) (holding that employee stated claim that she was disabled under “regarded as” prong because she was terminated based on chronic ankle injury, and noting “ADAAA’s de-emphasis on an employer’s beliefs as to the severity of a perceived impairment”).

Fourth Circuit: Chamberlain v. Valley Health Sys. Inc., 781 F. Supp. 2d 305, 312 (W.D. Va. 2011) (holding that employee submitted sufficient evidence that she was “regarded as” disabled when she was placed on involuntary leave and subsequently terminated shortly after being diagnosed with “visual field defect”).

Fifth Circuit: EEOC v. Res. for Human Dev. Inc., 827 F. Supp. 2d 688, 69597 (E.D. La. 2011) (holding that genuine issues of fact existed as to whether employee with severe obesity who was terminated from job was disabled under “regarded as” prong); Schmitz v. Louisiana, No. 07-891-SCR, 2009 WL 210497, at *2-3 (M.D. La. Jan. 27, 2009) (“Before the [ADAAA, the “regarded as” prong] of the definition was interpreted to mean that an employer had to regard or perceive an individual as substantially limited in a major life activity. The ADAAA eliminates this requirement. . . . The new provision states that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that the employer discriminated against him because of an actual or perceived impairment, “whether or not the impairment limits or is perceived to limit a major life activity.” . . . Clearly, the new ADAAA provisions related to the definition of disability create new legal consequences . . . and broaden the scope of an employer’s potential liability under the statute.”); Meinelt v. P.F. Chang’s China Bistro, Inc., 787 F. Supp. 2d 643, 651-52 (S.D. Tex. 2011) (holding that employee was disabled under the “regarded as” prong when he was fired three days after telling employer that he had a brain tumor and finding unavailing employer’s argument that denial of summary judgment would mean that “any time a plaintiff informs a manager of an alleged health condition . . . he or she would be automatically bestowed with a “regarded as” claim”); Lowe v. American Eurocopter, L.L.C., No. 1:10CV24-A-D, 2010 WL 5232523, at *7-8 (N.D. Miss. Dec. 16, 2010) (holding that employee stated claim that she was disabled under the “regarded as” prong because she was terminated based on obesity).

Sixth Circuit: Milholland v. Sumner County Board of Education, 569 F.3d 562, 566 (6th Cir. 2009) (stating that ADAAA’s change to “regarded as” prong “expands the coverage of the ADA to employer actions not previously covered”); Azzam v. Baptist Healthcare Affiliates, Inc., 855 F. Supp. 2d 653, 661-62 (W.D. Ky. 2012) (holding that employee who was terminated because of stroke with resulting fatigue was disabled under “regarded as” prong, but granting employer’s motion for summary judgment because employee was not qualified to perform job); Becker v. Elmwood, No. 3:10-CV-2487, 2012 WL 13569, at *9-10 (N.D. Ohio Jan. 4, 2012) (holding that employee with obsessive compulsive disorder presented sufficient evidence that he was disabled under the “regarded as” prong because his employer knew of his OCD prior to his resignation); Wells v. Cincinnati Children’s Hospital Medical Center, 860 F. Supp. 2d 469, 479-80 (S.D. Ohio 2012) (holding that employee presented sufficient evidence that she was disabled under “regarded as” prong because employer refused to reinstate employee to her former position as a result of concerns over employee’s use of prescription medication to treat her gastrointestinal problems); Rudolph v. U.S. Enrichment Corp., No. 5:08-CV-00046-TBR, 2009 WL 111737, at *6 (W.D. Ky. Jan. 15, 2009) (“[B]ecause the ADA[AA] broadens the definition of “disability” and who may have a cause of action under the “regarded as” prong[,] the amended Act would potentially increase [the employer’s] liability for past conduct.”).

Seventh Circuit: Horgan v. Simmons, 704 F. Supp. 2d 814, 820 n.4 (N.D. Ill. 2010) (holding that employee stated claim that he was disabled under “regarded as” prong because after employee told employer that he was HIV positive, employer questioned employee’s ability to work and lead others and fired employee next day).

Eighth Circuit: Brown v. City of Jacksonville, 711 F.3d 883, 889 (8th Cir. 2012) (stating that district court improperly focused exclusively on whether plaintiff had actual impairment and “failed to consider whether Brown made a submissible claim under the post-amendment ADA’s expanded definitions of perceived . . . impairment,” but affirming grant of summary judgment to employer on other grounds).

Ninth Circuit: Kagawa v. First Hawaiian Bank/Bancwest Corp., 819 F. Supp. 2d 1125, 1129 (D. Haw. 2011) (holding that employee stated claim that she was disabled under “regarded as” prong because employer required her to attend counseling and told her counselor that she heard voices in her head, and because counselor instructed employee to see a doctor); Walker v. Venetian Casino Resort, L.L.C., 02:10-CV-00195-LRH-VCF, 2012 WL 4794149, at *15 (D. Nev. Oct. 9, 2012) (“Thus, in passing the ADAAA, Congress eliminated the requirement that employees establish their employer’s beliefs concerning the severity of their impairment.”); Smith v. Valley Radiologists, Ltd., CV11-0599-PHX DGC, 2012 WL 3264504, at *5 (D. Ariz. Aug. 9, 2012) (holding that employee presented sufficient evidence that employer regarded her as disabled based on an email stating that employee would no longer perform mammograms because of her limited eyesight); McNamee v. Freeman Decorating Services, Inc., 2:10-CV-01294-GMN, 2012 WL 1142710, at *4 (D. Nev. Apr. 4, 2012) (holding that employee stated claim that he was disabled under “regarded as” prong because company executives made certain statements about his previous workplace injury).

Eleventh Circuit: Wolfe v. Postmaster General, 488 F.App’x 465, 468 (11th Cir. 2012) (stating that “a plaintiff need demonstrate only that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity,” and holding that termination of employee with ADHD was sufficient to establish disability under “regarded as” prong); Myers v. Winn-Dixie Stores, Inc., No. 8:10-CV-1987-T-17TGW, 2012 WL 529552, at *8 (M.D. Fla. Feb. 10, 2012) (“Under the ADAAA, whether or not an impairment substantially limits a major life activity is no longer relevant to the “regards as” test. An employer is deemed to have regarded the individual as having a disability if it makes an adverse decision based on an employer’s belief that the employee has an impairment.”); Beveridge v. HD Supply Waterworks, Ltd., No. 7:08-CV-52 (HL), 2009 WL 4755370, at *5 n.8 (M.D. Ga. Dec. 7, 2009) (stating that “under this broadened definition, [the plaintiff] would likely be successful in proving he was “regarded as” disabled” based on insomnia).

2. Broad Scope of Coverage Under Regarded-as Prong 

Through rules of construction, findings, and purposes, the ADAAA reflects Congress' intent that the "regarded as" prong be construed broadly, as it was in Arline. The ADAAA's textural changes discussing this broad scope of coverage, together with the EEOC's new regulations and guidance as well as helpful case precedent, follow.

a. ADAAA Statutory Text

ADAAA Rule of Construction No. 1: “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this chapter.”

ADAAA Finding No. 1: “[I]n enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage.”

ADAAA Finding No. 3: “[W]hile Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled.”

ADAAA Finding No. 4: “[T]he holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.”

ADAAA Purpose No. 1: “The purposes of this Act are (1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA.”

ADAAA Purpose No. 3:

The purposes of this Act are . . . to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973.

b. EEOC Regulations and Guidance

The regulations restate the ADAAA’s goal of broad coverage and intent to move beyond the definitional question.

The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the [ [ADAAA’s] purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.

“Coverage under the “regarded as” prong of the definition of disability should not be difficult to establish. . . . The ADAAA reiterates Congress’s reliance on the broad views enunciated in [ [Arline], and Congress “believe[s] that courts should continue to rely on this standard.” Accordingly, the ADA[AA] broadened the application of the “regarded as” prong. . . .”

"Congress did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage."

3. Transitory and Minor Defense

The regarded as prong, while broad, is not unlimited. It does not cover employees who are treated adversely based on a “transitory and minor” impairment. This is a narrow exception; only the most trivial impairments are transitory and minor. Although plaintiffs should anticipate this defense in the facts they allege, they need not disprove the elements of the defense as part of their prima facie case. It is the employer’s burden to assert that an impairment is “transitory and minor.” The ADAAA’s textual changes discussing this exception, together with the EEOC’s new regulations and guidance and judicial decisions interpreting this exception, follow.

a. ADAAA Statutory Text

Being regarded as having an impairment “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.”

b. EEOC Regulations and Guidance

The EEOC regulations confirm that both elements must be met-- essentially, “and” does not mean “or.” “To establish this defense, a covered entity must demonstrate that the impairment is both “transitory” and “minor.””

““[T]ransitory” is defined as lasting or expected to last six months or less.” “[An] individual who is denied a promotion because he has a minor back injury would be “regarded as” an individual with a disability if the back impairment lasted or was expected to last more than six months. Although minor, the impairment is not transitory.”

An objective test is used to apply this limitation on coverage.

Whether the impairment at issue is or would be “transitory and minor” is to be determined objectively. A covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.

The EEOC provides the following example,

an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor. At the same time, an employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor”.

“[A]s an exception to the general rule for broad coverage under the “regarded as” prong, this limitation on coverage should be construed narrowly.”

c. Case Precedent

Second Circuit: Davis v. N.Y.C. Department of Education, No. 10-cv-3812 (KAM)(LB), 2012 WL 139255, at *1-2, *6 (E.D.N.Y. Jan. 18, 2012) (holding that back and shoulder injuries requiring three month leave of absence, while transitory, were not minor).

Third Circuit: Gaus v. Norfolk Southern Railway Co., No. 09-1698, 2011 WL 4527359, at *17 (W.D. Pa. Sept. 28, 2011) (rejecting employer’s “transitory and minor” defense because employee’s chronic pain in joint, hands, and hip lasting in excess of one year was not “transitory”); see id. (“[Employer’s] subjective views regarding the temporary nature of [ [employee’s] impairment . . . are irrelevant.”); Cohen v. CHLN, Inc., No. 10-00514, 2011 WL 2713737, at *8 (E.D. Pa. July 13, 2011) (holding that employee submitted sufficient evidence that his back condition was not transitory and minor under “regarded as” prong because it began four months prior to termination and was not expected to “resolve[] permanently” (not transitory), and, in any event, his condition was perceived to be severe and ongoing (not minor); see id. (erroneously stating that impairments that are “transitory or minor” are excluded under “regarded as” prong) (emphasis added).

Fifth Circuit: Dube v. Tex. Health & Human Servs. Commission, No. SA-11-CV-354-XR, 2011 WL 3902762, at *4-5 (W.D. Tex. Sept. 6, 2011) (rejecting employer’s “transitory and minor” defense because “it is not apparent from the face of the complaint that [employee’s] impairment lasted less than six months or was otherwise “transitory” and “minor” as defined by the regulations.”).

Eleventh Circuit: Lewis v. Fla. Default Law Grp., No. 8:10-cv-1182-T-27EAJ, 2011 WL 4527456, at *5-7 (M.D. Fla. 2011) (holding that employee with flu was not disabled under “regarded as” prong because flu was “transitory and minor.”).

4. No Accommodations Under Regarded As Prong

As references above, only employees alleging non-accommodation can seek coverage under prong 3; those alleging a failure to accommodate must seek coverage under the first two prongs of the definition of disability", as discussed in subsection II.B.2 below.

The ADAAA’s textual changes discussing this limitation, together with the EEOC’s new regulations and guidance and judicial decisions interpreting it, follow.

a. ADAAA Statutory Text

A covered entity “need not provide a reasonable accommodation or a reasonable modification to policies, practices or procedures to an individual who meets the definition of disability” under the third prong.

b. EEOC Regulations and Guidance

“A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong . . . or “record of” prong . . . but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong. . . .”

c. Case Precedent

Third Circuit: Fleck v. WILMAC Corp., No. 10-05562, 2011 WL 1899198, at *6 n.3 (E.D. Pa. May 19, 2011) (holding that coverage under “regarded as” prong applied only to employee’s discrimination claims and “not her claims for failure to provide reasonable accommodation”).

Seventh Circuit: Powers v. USF Holland, Inc., 667 F.3d 815, 823 n.7 (7th Cir. 2011) (noting that employee was not entitled to reasonable accommodation under “regarded as” prong).

C. Disability Showing for Claims that Involve a Request for Accommodation

The ADA always has recognized two distinct types of claims--non-accommodation claims, which encompass everything from disparate treatment to harassment, and accommodation claims, which involve the failure to accommodate. The ADAAA sharpens this distinction by proffering a different disability showing for each. Part B addressed the disability showing for non-accommodation claims. This part addresses the showing for accommodation claims.

The ADA always has recognized two distinct types of claims--non-accommodation claims, which encompass everything from disparate treatment to harassment, and accommodation claims, which involve the failure to accommodate. The ADAAA sharpens this distinction by proffering a different disability showing for each.Part B addressed the disability showing for non-accommodation claims. This Part addresses the showing for accommodation claims.

As discussed above in Part B, the regarded-as prong is limited to non-accommodation claims. For accommodation claims, employees must seek coverage under one of the first two prongs of the ADA’s definition of disability. Specifically, employees must show that they have: (1) a physical or mental impairment that substantially limits one or more major life activities (hereinafter, “prong 1” or the “actual disability” prong); or (2) a record of such an impairment (hereinafter, “prong 2” or the “record of” prong).

As a result of the Supreme Court’s decisions in Sutton and Toyota, proving coverage under prongs 1 and 2 used to be a very difficult showing. It no longer is. While not as expansive as the regarded as prong, prongs 1 and 2 are far broader than ever before, thanks to a number of changes made by the ADAAA. 

This part explains the most prominent changes.

1. Broad Scope of Coverage Under Prongs 1 and 2

The ADAAA rejects the high level of limitation imposed by the Supreme Court and the EEOC in their interpretation of disability, specifically the terms “substantially limits” and “major life activities.”Through rules of construction, findings, and purposes, the ADAAA creates a less demanding standard for qualifying as disabled by requiring that the definition of disability be construed broadly.This section summarizes the ways in which the ADAAA broadens the scope of coverage under prongs 1 and 2, with references to the statutory text, regulations and guidance, and select case law.

a. ADAAA’s Statutory Text

ADAAA Rule of Construction No. 1: “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.”

ADAAA Rule of Construction No. 2: “The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.”

ADAAA Finding No. 1: “[I]n enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage.”

ADAAA Finding No. 4: “[T]he holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.”

ADAAA Finding No. 5: “[T]he holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA.”

ADAAA Finding No. 6: “[A]s a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.”

ADAAA Finding No. 7: “[I]n particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress.”

ADAAA Finding No. 8: “Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.”

ADAAA Purpose No. 1: “The purposes of this Act are (1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA.”

ADAAA Purpose No. 4:

The purposes of this Act are . . . (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”

ADAAA Purpose No. 5:

The purposes of this Act are . . . (5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits,” and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.

ADAAA Purpose No. 6: “The purposes of this Act are . . . (6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.”

The ADAAA removes the ADA’s “43 million Americans” finding (“some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older”) and replaces it with a new finding, “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination.”

The ADAAA removes the ADA’s “Discrete and Insular Minority” Finding (“Individuals with disabilities are a discrete and insular minority.”)

b. EEOC Regulations and Guidance

The law has “[b]road coverage.” The EEOC regulations confirm:

The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the Amendments Act’s purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.

“Congress did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage.”

c. Case Precedent

First Circuit: Brodsky v. New England School of Law, 617 F. Supp. 2d 1, 4 (D. Mass. 2009) (stating that “the ADA amendment is undoubtedly intended to ease the burden of plaintiffs bringing claims pursuant to that statute”).

Second Circuit: Cooke v. Berkshire Farm Center and Services For Youth, No. 11-CV-2970 (SJF) (GRB), 2012 WL 668612, at *5 n.3 (E.D.N.Y. Feb. 29, 2012) (“The [ADAAA] “expanded the class of individuals entitled to protection under the ADA.””) (citing Kantrowitz v. Uniondale Free School District, 822 F. Supp. 2d 196, 208 n.10 (E.D.N.Y. 2011)).

Third Circuit: Grosso v. University of Pittsburgh Medical Center, 857 F. Supp. 2d 517, 531 (W.D. Pa. 2012); Kravits v. Shinseki, No. 10-861, 2012 WL 604169, at *5 (W.D. Pa. Feb. 24, 2012)Gaus v. Norfolk Southern Railway Co., No. 09-1698, 2011 WL 4527359, at *16 (W.D. Pa. Sept. 28, 2011).

Fourth Circuit: Summers v. Altarum Institute, Corp., No. 13-1645, 2014 WL 243425, at 3-5 (4th Cir. Jan. 23, 2014); Cochran v. Holder, 436 F. App’x 227, 231 (4th Cir. 2011)

Fifth Circuit: Neely v. PSEG Texas, Ltd. Partnership, 735 F.3d 242, 245 & n.4(5th Cir. 2013); Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d. 1173, 1185 (E.D. Tex. 2011); Carbaugh v. Unisoft International, Inc., No. H-10-0670, 2011 WL 5553724, at *7-8 (S.D. Tex. Nov. 15, 2011).

Sixth Circuit: Jenkins v. National Board of Medical Examiners, No. 08-5371, 2009 WL 331638, at *3 (6th Cir. Feb. 11, 2009); Verhoff v. Time Warner Cable, Inc., 299 F. App’x 488, 494 (6th Cir. 2008).

Seventh Circuit: Fleishman v. Continental Casualty Co., 698 F.3d 598, 606 n.3 (7th Cir. 2012); Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp. 2d 976, 985 (N.D. Ind. 2010); Kingston v. Ford Meter Box Co., No. 3:07-CV-270 RM, 2009 WL 981333, at *4 n.4 (N.D. Ind. Apr. 10, 2009).

Eighth Circuit: Brown v. City of Jacksonville, 711 F.3d 883, 889 (8th Cir. 2012).

Ninth Circuit: Rohr v. Salt River Project Agricultural Improvement & Power District, 555 F.3d 850, 861 (9th Cir. 2009).

Tenth Circuit: Nasious v. Colorado, 495 F. App’x 899, 902 (10th Cir. 2012); Gibbs v. ADS Alliance Data Systems, Inc., 2011 WL 3205779, at *3 (D. Kan. July 28, 2011).

Eleventh Circuit: Barlow v. Walgreen Co., No. 8:11-cv-71-T-30EAJ, 2012 WL 868807, at *4 (M.D. Fla. Mar. 14, 2012).

2. Substantially Limits

The term "substantially limits" was not defined in the ADA, and it remains undefined under the ADAAA. The EEOC originally defined the term narrowly to meal "significantly restricts," and, in Toyota, the Supreme Court went further, defining the term to mean "prevents or severely restricts."

Through rules of construction, findings, and purposes, the ADAAA explicitly rejects these interpretations in favor of a less demanding, more inclusive standard. As a result, the EEOC’s prior regulations interpreting the term “substantially limits,” the Toyota Court’s definition of the term, and lower court cases relying on these definitions are no longer good law. The following is a summary of the relevant statutory and regulatory changes to “substantially limits,” together with correctly decided judicial interpretations.

a. ADAAA Statutory Text

ADAAA Rule of Construction No. 1: “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter."

ADAAA Rule of Construction No. 2: “The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.”

ADAAA Finding No. 7: “[T]he Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress."

ADAAA Finding No. 8: “Congress finds that the Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.”

ADAAA Purpose No. 4:

The purposes of this Act are . . . to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”

ADAAA Purpose No. 5: “The purposes of this Act are . . . to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits,” and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA.”

ADAAA Purpose No. 6: “The purposes of this Act are . . . to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.”

b. EEOC Regulations and Guidance

“Substantially limits” is not meant to be a demanding standard.” 

“The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”

“Substantially limits” does not mean prevents or severely restricts. “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

“[T]he threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.” The EEOC clarified that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”

Scientific, medical, or statistical evidence is not required to determine if a major life activity is limited.

The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

An individualized assessment is still required, but the required degree of functional limitation is lower.

The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.

The EEOC’s regulations state that the required degree of functional limitation “will make the disability determination an appropriate threshold issue but not an onerous burden for those seeking to prove discrimination under the ADA.” Nevertheless, the EEOC’s regulations observe that “not every impairment will constitute a disability within the meaning of this section.”

The EEOC’s regulations provide a list of predictable assessments:

[T]he individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of this section. Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.

The EEOC’s regulations contain these examples:

[I]t should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: Deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function. The types of impairments described in this section may substantially limit additional major life activities [i.e., walking, eating sleeping, thinking] not explicitly listed above.

Learning disabilities are typically covered.

Individuals diagnosed with dyslexia or other learning disabilities will typically be substantially limited in performing activities such as learning, reading, and thinking when compared to most people in the general population, particularly when the ameliorative effects of mitigating measures, including therapies, learned behavioral or adaptive neurological modifications, assistive devices (e.g., audio recordings, screen reading devices, voice activated software), studying longer, or receiving more time to take a test, are disregarded as required under the ADA Amendments Act.

The EEOC removed the proposed regulations’ list of impairments that “may be substantially limiting for some individuals but not for others” and those that are “usually not disabilities,” because of the confusion generated by such lists.

The three-part “Condition, Manner, Duration” standard may be relevant but is not required, thereby implicitly rejecting Toyota’s requirement that the impairment’s impact be “permanent or long-term.”

[I]t may be useful in appropriate cases to consider, as compared to most people in the general population, the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; 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.

[W]hile the Commission’s regulations retain the concept of “condition, manner, or duration,” they no longer include the additional list of “substantial limitation” factors contained in the previous version of the regulations (i.e., the nature and severity of the impairment, duration or expected duration of the impairment, and actual or expected permanent or long-term impact of or resulting from the impairment).

“[C]ondition, manner, or duration” are not intended to be used as a rigid three-part standard that must be met to establish a substantial limitation. “Condition, manner, or duration” are not required “factors” that must be considered as a talismanic test. Rather, in referring to “condition, manner, or duration,” the regulations make clear that these are merely the types of facts that may be considered in appropriate cases. To the extent such aspects of limitation may be useful or relevant to show a substantial limitation in a particular fact pattern, some or all of them (and related facts) may be considered, but evidence relating to each of these facts may not be necessary to establish coverage.

Analysis of “condition, manner, or duration” is often unnecessary.

Given the rules of construction set forth in paragraphs (j)(1)(i) through (ix) of this section, it may often be unnecessary to conduct an analysis involving most or all of these types of facts. This is particularly true with respect to impairments such as those described in paragraph (j)(3)(iii) of this section, which by their inherent nature should be easily found to impose a substantial limitation on a major life activity, and for which the individualized assessment should be particularly simple and straightforward.

Duration is not dispositive for prongs 1 and 2:

The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage . . . does not apply to the definition of disability under [prongs 1 or 2]. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.

The EEOC’s regulations continue,

[A]n impairment does not have to last for more than six months inorder to be considered substantially limiting under [prongs 1 or 2] of the definition of disability. For example . . . if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under [prong 1] of the definition of disability.

Impairments of short duration are typically not covered. “[T]he duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.”

c. Case Precedent

First Circuit: Gil v. Vortex, L.L.C., 697 F. Supp. 2d 234, 239-40 (D. Mass. 2010) (holding that employee stated claim that he was disabled under prong 1 because he alleged that his monocular vision “inhibits two major life activities, seeing and working”); Id. at 240 (“Although [employee] might have done a better job of providing details in his Complaint describing the precise nature of his “substantial limitations,” enough is pled to satisfy the relaxed disability standard under the Amendments Act.”); Franchi v. New Hampton School, 656 F. Supp. 2d 252, 258-59 (D.N.H. 2009) (holding that student stated claim that she was disabled under prong 1 of pre- and post-Amendment ADA because her eating disorder--which resulted in her spending six weeks in outpatient and inpatient clinics, and losing nearly five pounds-- substantially limited her eating).

Third Circuit: Cohen v. CHLN, Inc., No. 10-00514, 2011 WL 2713737, at *8 (E.D. Pa. July 13, 2011) (holding that employee presented sufficient evidence that he was disabled under prong 1 because his back condition, which limited his ability to walk more than ten to twenty yards at a time, substantially limited his ability to walk and “stands in distinct contrast to those cited by the EEOC as merely minor and temporary, such as the common cold or flu.”); Id. (noting that employee’s back injury “easily passes muster under the more inclusive standards of the ADAAA.”); Naber v. Dover Healthcare Associates, Inc., 765 F. Supp. 2d 622, 646-47 (D. Del. 2011) (erroneously conflating pre-ADAAA “unable” or “significantly restricted” and post-ADAAA construction of “substantially limits,” but holding that employee set forth prima facie case that she was disabled under prong 1 because her depression substantially limited her ability to sleep); Fleck v. WILMAC Corp., No. 10-05562, 2011 WL 1899198, at *5 (E.D. Pa. May 19, 2011) (holding that employee stated claim that she was disabled under prong 1 because her chronic ankle injury substantially limited major life activities of standing and walking).

Fourth Circuit: Summers v. Altarum Institute, Corp., No. 13-1645, 2014 WL 243425, at *3-5 (4th Cir. Jan. 23, 2014) (citing EEOC regulations regarding temporary impairments) (holding that employee stated clain that he was disabled under prong 1 because knee injury, although temporary, left him unable to walk normally for seven months (and would have left him unable to walk for more than a year without surgery, pain medication, and physical therapy) and therefore substantially limited his ability to walk); “If, as the EEOC has concluded, a person who cannot lift more than twenty pounds for “several months” is sufficiently impaired to be disabled within the meaning of the amended Act, . . . then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.” Id. at 4. Feldman v. Law Enforcement Associates, 779 F. Supp. 2d 472, 484-85 (E.D.N.C. 2011) (holding that employee stated claim that he was disabled under prong 1 because Transient Ischemic Attack (mini-strokes), although temporary, substantially limited multiple life activities); Pridgen v. Department of Public Works/Bureau of Highways, No. WDQ-08-2826, 2009 WL 4726619, at *4-5 n.17 (D. Md. Dec. 1, 2009) (“Under the ADA Amendments Act of 2008, a person who has lost sight in one eye but retains full use of his other eye is “disabled.” Disability is to be construed “in favor of broad coverage” . . . .”).

Fifth Circuit: Sechler v. Modular Space Corp., No. 4:10-CV-5177, 2012 WL 1355586, at *10-14 (S.D. Tex. Apr. 18, 2012) (holding that genuine issues of material fact existed as to whether employee’s alcoholism substantially limited his ability to think, concentrate, and communicate); Holland v. Shinseki, No. 3:10-CV-0908-B, 2012 WL 162333, at *6 (N.D. Tex. Jan. 18, 2012) (holding that genuine issues of material fact existed as to whether employee, whose depression, panic, anxiety, and acute stress prevented her from “sleep[ing] more than one hour a night,” was substantially limited in sleeping); Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 994-96 (W.D. Tex. Jan. 4, 2012) (holding that employee presented sufficient evidence that her “intermittent back pain, as well as pain, numbness and tingling in her right leg” substantially limited her ability to sleep, sit, stand, lift, and bend and limited the operation of her musculoskeletal functions); Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1185-86 (E.D. Tex. 2011) (citing cancer’s inclusion in the EEOC’s list of predictable assessments in support of holding that employee’s renal cancer was a disability under prong 1); Lowe v. American Eurocopter, L.L.C., No. 1:10CV24-A-D, 2010 WL 5232523, at *7-8 (N.D. Miss. Dec. 16, 2010) (holding that employee stated claim that she was disabled under prong 1 because her obesity substantially limited her ability to walk).

Sixth Circuit: Medlin v. Honeywell Analytics, Inc., No. 3-10-0654, 2012 WL 511997, at *5 (M.D. Tenn. Feb. 15, 2012) (holding that injuries sustained by employee in car accident, which “made it difficult for him to sit for long periods” and to climb stairs and ladders, carry heavy things, sleep, and engage in sexual activity, substantially limited major life activities); Thomas v. Werthan Packaging, Inc., No. 3:10-cv-00876, 2011 WL 4915776, at *5 (M.D. Tenn. Oct. 17, 2011) (holding that pro se employee who testified that he might be able to lift twenty pounds, but was not sure for how long, created a genuine dispute as to whether was substantially limited in lifting); See id. (finding pre-ADAAA cases “inapposite and their persuasive authority minimal”); Gesegnet v. J.B. Hunt Transport, Inc., No. 3:09-CV-828-H, 2011 WL 2119248, at *4 (W.D. Ky. May 26, 2011) (holding that employee’s bipolar and anxiety disorders were disabilities under prong 1); Jenkins v. National Board of Medical Examiners, No. 08-5371, 2009 WL 331638, at *2, *4 (6th Cir. Feb. 11, 2009) (vacating judgment of district court that test-taker who “read[] written language in a slow and labored fashion when compared to the general public” was not disabled under prong 1 and remanding case in light of ADAAA, noting that “the categorical threshold scope of the ADA’s coverage has been broadened.”).

Seventh Circuit: Walter v. Wal-Mart Stores, Inc., No. 4:09-CV-15 JD, 2011 WL 4537931, at *9 (N.D. Ind. Sept. 28, 2011) (holding that employee’s degenerative neurological condition, Friedreich’s Ataxia, substantially limited his ability to walk, stand, see, and speak).

Eighth Circuit: Brown v. City of Jacksonville, 711 F.3d 883, 889 & n.6 (8th Cir. 2012) (stating that district court “improperly analyzed Brown’s ADA claim under the more restrictive” pre-amendment definition of “substantially limits” as opposed to “the more generous post-amendment version of the ADA,” but affirming grant of summary judgment to employer on other grounds); Seim v. Three Eagles Communications, Inc., No. 09-CV-3071-DEO, 2011 WL 2149061, at *3 (N.D. Iowa June 1, 2011) (holding that employee presented sufficient evidence of a disability because his autoimmune disorder, Graves’ disease, substantially limited the major life activities of “sleeping; standing; speaking; concentrating; thinking; communicating; working; and the functions of his immune, circulatory, and endocrine systems.”).

Ninth Circuit: McNamee v. Freeman Decorating Services, Inc., No. 2:10-CV-01294-GMN-PAL2012 WL 1142710, at *4 (D. Nev. Apr. 04, 2012) (holding that injured employee with lifting restrictions had a disability under prongs 1 and 2).

Tenth Circuit: Allen v. SouthCrest Hospital, 455 F.App’x 827, 833-34 (10th Cir. 2011) (holding that employee’s allegations that migraine medication caused her to sleep after work did not demonstrate that she was substantially limited in caring for herself, but erroneously failing to consider employee’s migraines in their active state and without mitigation measures or migraines’ substantial limitation of neurological functions) (emphasis added); Gibbs v. ADS Alliance Data System, Inc., No. 10-2421-JWL, 2011 WL 3205779, at *3 (D. Kan. July 28, 2011) (holding that genuine issues of material fact existed as to whether employee’s carpel tunnel syndrome, which “affected [employee’s] ability to perform manual tasks,” constituted disability under ADA).

Eleventh Circuit: Barlow v. Walgreen Co., No. 8:11-cv-71-T-30EAJ, 2012 WL 868807, at *4 (M.D. Fla. Mar. 14, 2012) (holding that plaintiff’s back injuries “put her at a disadvantage as compared to “most people in the general population,” and certainly qualify as a significant restriction” in musculoskeletal functioning).

3. Mitigating Measures

In Sutton and its companion cases, the Supreme Court held that the ameliorative effects of mitigating measures, such as medication, therapy, or learned behavioral modifications, must be considered when determining whether a person was substantially limited in a major life activity.

This situation created a Catch-22: “the more successful a person [was] at coping with a disability, the more likely it [was] the Court [would] find that they [were] no longer disabled and therefore no longer covered under the ADA.”

The ADAAA explicitly rejects the Supreme Court’s holding in Sutton. The ADA, as amended, now requires exactly the opposite--courts must determine whether a person is disabled without reference to the ameliorative effects of mitigating measures. The exception to this rule is that courts are allowed to consider the ameliorative effects of ordinary eyeglasses or contact lenses when determining whether a disability “substantially limits a major life activity.”

a. ADAAA Statutory Text

“The purposes of this Act are . . . to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures.”

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as:

  1. (medication, medical supplies, equipment, or appliances, low-vision devices . . . prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

  2. use of assistive technology;

  3. reasonable accommodations or auxiliary aids or services;

  4. or learned behavioral or adaptive neurological modifications.

“The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.”

b. EEOC Regulations and Guidance

The ameliorative effects of mitigating measures, with the exception of ordinary eyeglasses and contact lenses, shall not be considered in determining whether an impairment substantially limits a major life activity.

Evidence showing that an impairment would be substantially limiting in the absence of the ameliorative effects of mitigating measures could include evidence of limitations that a person experienced prior to using a mitigating measure, evidence concerning the expected course of a particular disorder absent mitigating measures, or readily available and reliable information of other types. However, we expect that . . . covered entities and courts will in many instances be able to conclude that a substantial limitation has been shown without resort to such evidence.

The EEOC provides new examples of mitigating measures. “Mitigating measures include . . . (v) Psychotherapy, behavioral therapy, or physical therapy,” as well as “assistive devices (e.g., audio recordings, screen reading devices, voice activated software), studying longer, or receiving more time to take a test,” and a “regimen of medicine, exercise and diet.”

The EEOC’s final regulations remove the proposed regulations’ example of surgical intervention as a mitigating measure. “The Commission has eliminated “surgical interventions, except for those that permanently eliminate an impairment” as an example of a mitigating measure in the regulation, given the confusion evidenced in the comments . . . [These d]eterminations . . . are better assessed on a case-by-case basis.”

“The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.”

The non-use of mitigating measures is not relevant to the coverage determination, but may be applicable to defenses.

The determination of whether or not an individual’s impairment substantially limits a major life activity is unaffected by whether the individual chooses to forgo mitigating measures . . . . However, the use or non-use of mitigating measures, and any consequences thereof, including any ameliorative and non-ameliorative effects, may be relevant in determining whether the individual is qualified or poses a direct threat to safety.

c. Case Precedent

Second Circuit: Godfrey v. New York City Transit Authority, No. 02-cv-2101 (DLI)(RER), 2009 WL 3075207, at *6 n.4 (E.D.N.Y. Sept. 23, 2009) (hearing aids not considered); Geoghan v. Long Island Railroad, No. 06 CV 1435(CLP), 2009 WL 982451, at *17 n.28 (E.D.N.Y. Apr. 9, 2009) (ADHD must be considered without Adderall medication).

Third Circuit: Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 186 n.3 (3d Cir. 2010) (“The resulting statutory section only prohibits the consideration of ameliorative mitigatory measures, and does not address potentially negative side effects of medical treatment.”) (emphasis added); Rhodes v. Principal Financial Group, No. 3:10-CV-290, 2011 WL 6888684, at *5 n.9 (M.D. Pa. Dec. 30, 2011) (“This amendment [regarding mitigating measures] clearly impacts plaintiffs suffering from diabetes.”); Medvic v. Compass Sign Co., No. 10-5222, 2011 WL 3513499, at *7 & n.12 (E.D. Pa. Aug. 10, 2011) (finding stuttering substantially limiting without considering alleviating medication).

Fifth Circuit: Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 995 (W.D. Tex. 2012) (assessing back pain without regard to over-the-counter pain medication); Munoz v. Echosphere, L.L.C., No. 09-CV-0308-KC, 2010 WL 2838356, at *12 (W.D. Tex. July 15, 2010) (assuming diabetes would be substantially limiting without insulin).

Sixth Circuit: Verhoff v. Time Warner Cable, Inc., 299 F. App’x 488, 494 (6th Cir. 2008) (noting that, under the ADAAA, sleep problems would have to be assessed without regard to use of sleep medication); Eldredge v. City of St. Paul, 809 F. Supp. 2d 1011, 1029 (D. Minn. 2011) (holding that employee with progressive disease that negatively impacted vision was disabled under prong 1 notwithstanding employee’s use of mitigating measures such as “a magnifying glass and/or a pocket telescope. . . . [T]he use of such equipment is not part of the determination of whether a condition substantially limits a major life activity, nor is there any evidence to suggest here that the temporary use of such devices addresses [employee’s] overall visual impairment in the way in which corrective lenses might resolve nearsightedness.”); Handley v. General Security Services Corp., No. 1:07-cv-501, 2009 WL 2132626, at *4 n.5 (S.D. Ohio July 10, 2009) (noting that, under the ADAAA, hearing impairment would have to be assessed without regard to hearing aids); E.E.O.C. v. Burlington North & Santa Fe Railway Co., 621 F. Supp. 2d 587, 593 n.3 (W.D. Tenn. June 3, 2009) (prosthetics no longer considered).

Ninth Circuit: Rohr v. Salt River Project Agricultural Improvement & Power District, 555 F.3d 850, 861-62 (9th Cir. 2009) (“Impairments are to be evaluated in their unmitigated state, so that, for example, diabetes will be assessed in terms of its limitations on major life activities when the diabetic does not take insulin injections or medicine and does not require behavioral adaptations such as a strict diet.”).

Tenth Circuit: Markham v. Boeing Co., No. 10-1363-MLB, 2011 WL 6217117, at *4-5 & n.8 (D. Kan. Dec. 14, 2011) (finding blindness in one eye substantially limiting even though plaintiff could “turn his head 180 degrees in order to look to the right.”).

4. Episodic or in Remission

Before the ADAAA, many courts held that impairments like epilepsy were not substantially limiting because their impacts were episodic. Further, many courts discounted the impacts of impairments in remission, like cancer, as too short-lived to be substantially limiting. Similarly, in reliance on EEOC regulations that encouraged consideration of the "permanent or long term impact" of an impairment, the Supreme Court in Toyota concluded that "an impairment's impact must also be permanent or long term" to be substantially limiting. 

The ADAAA rejects these holdings by requiring that courts assess impairments whose impacts are episodic or in remission in their active state for purposes of determining substantial limitation. In addition, as discussed above, the EEOC has deleted from its regulations the “permanent or long-term impact” language upon which Toyota relied. Relevant excerpts from the text of the ADAAA, the EEOC’s regulations and guidance, and case law follows.

a. ADAAA Statutory Text

“An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

b. EEOC Regulations and Guidance

The EEOC implicitly rejects Toyota’s “permanent or long-term” requirement by deleting such language from the regulations.

The EEOC provides examples of impairments that are episodic or in remission. These impairments “include, but are not limited to, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder, and schizophrenia.” Other examples referenced in the regulations include epilepsy, multiple sclerosis, cancer, and PTSD.

The duration or frequency of an impairment’s active state is not relevant.

The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity. For example, a person with post-traumatic stress disorder who experiences intermittent flashbacks to traumatic events is substantially limited in brain function and thinking.

c. Case Precedent

Second Circuit: Katz v. Adecco USA, Inc., 845 F. Supp. 2d 539, 544-46 (S.D.N.Y. 2012) (holding that genuine issues of material fact existed as to whether employee with remissive breast cancer was disabled); Negron v. City of New York, No. 10 CV 2757(RRM)(LB), 2011 WL 4737068, at *11-12 (E.D.N.Y. Sept. 14, 2011) (holding that employee who was injured in firearm accident stated claim that she was disabled under prong 1 because pain and inflammation, when active, substantially limited her ability to perform manual tasks and work).

Third Circuit: Britting v. Secretary, Department of Veterans Affairs, 409 F. App’x 566, 568 (3d Cir. 2011) (acknowledging the ADAAA’s rule of construction requiring that episodic or remissive impairments be looked at in their active state); Estate of Murray v. UHS of Fairmount, Inc., No. 10-2561, 2011 WL 5449364, at *6-8 (E.D. Pa. Nov. 10, 2011) (holding that employee presented sufficient evidence that she was disabled under prong 1 because her depression, when active, substantially limited her ability to think, eat, and sleep); Medvic v. Compass Sign Co., No. 10-5222, 2011 WL 3513499, at *7 (E.D. Pa. Aug. 10, 2011) (holding that employee was disabled under prong 1 because his stutter, when active, substantially limited employee’s ability to communicate); Chalfont v. U.S. Electrodes, No. 10-2929, 2010 WL 5341846, at *9 (E.D. Pa. Dec. 28, 2010) (holding that employee with cancer in remission and heart disease stated claim that he was disabled under prong 1 because his impairments substantially limited normal cell growth and circulatory functions).

Fourth Circuit: Feldman v. Law Enforcement Association Corp., 779 F. Supp. 2d 472, 484-85 (E.D.N.C. 2011) (holding that employee stated claim that he was disabled under prong 1 because multiple sclerosis, when active, substantially limits normal neurological functions).

Fifth Circuit: Carmona v. Southwest Airlines Co., 604 F.3d 848, 855 (5th Cir. 2010) (stating that the amendments to the ADA “would be very favorable to [plaintiff’s] case if they are applicable, because they make it easier for a plaintiff with an episodic condition [in that case, psoriatic arthritis] . . . to establish that he is an “individual with a disability.””); Carbaugh v. Unisoft International, Inc., No. H-10-0670, 2011 WL 5553724, at *8, *18 (S.D. Tex. Nov. 15, 2011) (holding that employee was disabled under prong 1 because multiple sclerosis, when active, substantially limits major life activities and giving pre-ADAAA cases “no precedential weight”); Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d. 1173, 1185 (E.D. Tex. May 13, 2011) (holding that employee’s renal cancer was a disability under the prong 1 because “renal cancer, when active, “substantially limits” the “major life activity” of “normal cell growth . . . that [employee] may have been in remission when he returned to work . . . is of no consequence.”).

Seventh Circuit: Kinney v. Century Services. Corp. II, No. 1:10-cv-00787-JMS-DML, 2011 WL 3476569, at *10 (S.D. Ind. Aug. 9, 2011) (holding that employee’s depression, when active, substantially limited major life activities under prong 1); Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp. 2d 976, 985-86 (N.D. Ind. 2010) (holding that employee’s remissive renal cancer, when active, substantially limited major life activity under prong 1).

Tenth Circuit: Allen v. SouthCrest Hospital, 455 F. App’x 827, 833-34 (10th Cir. 2011) (holding that employee was not substantially limited in caring for herself, but erroneously failing to consider whether migraines, when active, substantially limited employee’s major life activities and neurological functions) (emphasis added).

5. Major Life Activities

Like "substantially limits," the term "major life activities" was not defined in the ADA. The EEOC originally defined the term to mean "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." The Supreme Court in Toyota subsequently narrowed the term to mean "activities that are of central importance to most people's daily lives."

Under the ADA, as amended, the term “major life activities” is now defined. The ADAAA expands the definition promulgated by the  EEOC in two significant ways: first, by including additional examples of major life activities, and second, by including “major bodily functions,” the latter of which is discussed immediately below in subsection II.B.g of this Article. The rest of this section contains the relevant statutory text, references to the EEOC’s regulations and guidance, and case law.

a. ADAAA Statutory Text

“The purposes of this Act are . . . (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”

“[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

Rule of Construction No. 3: “An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

b. EEOC Regulations and Guidance

The EEOC rejects Toyota’s “central importance” requirement. “In determining other examples of major life activities, the term “major” shall not be interpreted strictly to create a demanding standard for disability . . . . Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.””

The EEOC rejects its former definition of “major life activities” as “those basic activities that the average person in the general population can perform with little or no difficulty.” “[W]hile the ability of most people to perform the activity is relevant when evaluating whether an individual is substantially limited, it is not relevant to whether the activity in question is a major life activity.”

In addition to the ADAAA’s non-exhaustive examples, the EEOC regulations include “interacting with others,” “sitting,” and “reaching” as examples of major life activities.

c. Case Precedent

Third Circuit: Medvic v. Compass Sign Co., No. 10-5222, 2011 WL 3513499, at *7 (E.D. Penn. Aug. 10, 2011) (holding that stuttering substantially limited major life activity of communicating).

Fourth Circuit: Feldman v. Law Enforcement Associate Corp., 779 F. Supp. 2d 472, 484 (E.D.N.C. 2011) (holding that multiple sclerosis substantially limited major life activities of walking, performing manual tasks, seeing, speaking, or thinking).

Fifth Circuit: Lowe v. American Eurocopter, No. 1:10CV24-A-D, 2010 WL 5232523, at *7 (N.D. Miss. Dec. 16, 2010) (holding that obesity substantially limited ability to walk).

Seventh Circuit: Kinney v. Century Services Corp. II, No. 1:10-cv-00787-JMS-DML, 2011 WL 3476569, at *10 (S.D. Ind. Aug. 9, 2011) (holding that inpatient treatment for depression substantially limited major life activities).

Tenth Circuit: Gibbs v. ADS Alliance Data Systems, Inc., No. 10-2421-JWL, 2011 WL 3205779, at *3 (D. Kan. July 28, 2011) (holding that carpal tunnel syndrome substantially limited “ability to perform manual tasks”).

6. Major Life Activity of Working

The EEOC’s original regulations implementing the ADA contained several provisions that, read together, placed undue focus on the major life activity of working. Most notably, the regulations required that, in order to be considered substantially limited in “working,” a plaintiff must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes,” and that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. As a result of these regulations and the judicial interpretation of them, “working” became one of the most difficult major life activities in which to prove substantial limitation.

Under the ADA, as amended, “working” is listed as one of many examples of major life activities. However, because the EEOC retains the “class of jobs” or “broad range of jobs” standard, “working” should be a major life activity of last resort for plaintiffs and their lawyers. Whenever possible, plaintiffs and their lawyers should show substantial limitation in at least one major life activity other than working. The relevant statutory text, together with the EEOC’s new regulations and guidance and judicial decisions, follow.

a. ADAAA’s Statutory Text

“[M]ajor life activities include . . . working.”

b. EEOC Regulations and Guidance

The EEOC streamlined its discussion of the major life activity of working and moved it from the text of the regulations to the appendix. “This is consistent with the fact that no other major life activity receives special attention in the regulation, and with the fact that, in light of the expanded definition of disability established by the Amendments Act, this major life activity will be used in only very targeted situations.”

It is unnecessary to demonstrate a substantial limitation in working in most cases.

In the rare cases where an individual has a need to demonstrate that an impairment substantially limits him or her in working, the individual can do so by showing that the impairment substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities . . . . In most instances, an individual with a disability will be able to establish coverage by showing substantial limitation of a major life activity other than working; impairments that substantially limit a person’s ability to work usually substantially limit one or more other major life activities.

The EEOC has lowered the standard for showing substantial limitation in working. “[T]he determination of coverage under the law should not require extensive and elaborate assessment, and the  EEOC and the courts are to apply a lower standard in determining when an impairment substantially limits a major life activity, including the major life activity of working, than they applied prior to the Amendments Act.” The appendix retains the terms “class of jobs” and “broad range of jobs in various classes” language, but these terms “will be applied in a more straightforward and simple manner than they were applied by the courts prior to the Amendments Act.”

The EEOC retains the concept of a single specific job. “Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.”

c. Case Precedent

Feldman v. Law Enforcement Associate, 779 F. Supp. 2d 472, 48485 (E.D.N.C. 2011) (holding that both Transient Ischemic Attack (“TIA” or mini-strokes), although temporary, and multiple sclerosis, substantially limited multiple life activities including working); see id. at 485 (“[E]ven if [ [employee’s] TIA “only temporarily limited [his] ability to work, the stringent requirements of Toyota Motor may be rejected by the amended statute in favor of a more inclusive standard.”); Kinney v. Century Services Corp. II, No. 1:10-cv-00787-JMS-DML, 2011 WL 3476569, at *10 (S.D. Ind. Aug. 9, 2011) (holding that depression requiring inpatient treatment substantially limited ability to work). But see Allen v. SouthCrest Hospital, 455 F. App’x 827, 835 (10th Cir. 2011) (holding that employee’s migraines did not substantially limit her ability to work); Zurenda v. Cardiology Associates, P.C., No. 3:10-CV-0882, 2012 WL 1801740, at *89 (N.D.N.Y. May 16, 2012) (holding that employee’s knee injury did not substantially limit her ability to work).

7. Major Bodily Functions

Under the original ADA, many courts held that substantial limitation in a major bodily function, such as liver function, did not qualify as a disability. The ADAAA expands the term “major life activity” to include the operation of “major bodily functions.” Under the ADAAA, these individuals no longer need to show how their disability limits them in specific activities; the substantial limitation of a major bodily function is sufficient to qualify them for protection.  Because the major bodily functions analysis makes it easier for an individual to qualify as disabled, employees’ lawyers should always consider the client’s limitations in major bodily functions. This will often be the clearest path to coverage, and in many cases should be the employee’s primary argument for coverage. The ADAAA’s textual changes discussing this path, together with the EEOC’s new regulations and guidance and judicial decisions interpreting “major bodily functions,” follow.

a. ADAAA Statutory Text

“[A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 

b. EEOC Regulations and Guidance

The inclusion of “major bodily functions” is an important change to the definition. “The ADA as amended also explicitly defines “major life activities” to include the operation of “major bodily functions.” This was an important addition to the statute. This clarification was needed to ensure that the impact of an impairment on the operation of a major bodily function would not be overlooked or wrongly dismissed as falling outside the definition of “major life activities” under the ADA.” 

The EEOC provides additional examples of major bodily functions than found in the statute. “Major life activities include, but are not limited to . . . [t]he operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.” 

“The operation of a major bodily function includes the operation of an individual organ within a body system.”  Organs include “the kidney, liver, pancreas, or other organs.” 

c. Case Precedent

Second Circuit: McElwee v. County of Orange, 700 F.3d 635, 643 (2d Cir. 2012) (implying that the district court erred in not considering autism’s substantial limitation of brain function, but affirming grant of summary judgment to employer on other grounds); Katz v. Adecco USA, Inc., 845 F. Supp. 2d 539, 548 (S.D.N.Y. 2012) (holding that cancer, when active, substantially limits normal cell growth).

Third Circuit: Myles v. University of Pennsylvania Health Systems, No. 10-4118, 2011 WL 6150638, at *7-8 (E.D. Pa. Dec. 12, 2011) (holding that employee presented sufficient evidence that irritable bowel syndrome substantially limited bowel functions); Chalfont v. U.S. Electrodes, No. 10-2929, 2010 WL 5341846, at *9 (E.D. Pa. Dec. 28, 2010) (holding that employee stated claim that he was disabled under prong 1 because employee’s leukemia, although in remission, substantially limited major life activity of normal cell growth when active, and because employee’s heart disease substantially limited major life activity of circulatory function).

Fourth Circuit:   Feldman v. Law Enforcement Associates Corp., 779 F. Supp. 2d 472, 48485 (E.D.N.C. 2011) (holding that employee stated claim that he was disabled under prong 1 because episodic flare ups of multiple sclerosis, when active, substantially limit normal neurological functions).

Fifth Circuit: Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 99496 (W.D. Tex. 2012) (holding that employee was disabled under prong 1 because “intermittent back pain, as well as pain, numbness and tingling in her right leg” substantially limited musculoskeletal functions); Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d. 1173, 1185 (E.D. Tex. 2011) (holding that employee’s renal cancer was disability under prong 1 because “renal cancer, when active, “substantially limits” the “major life activity” of “normal cell growth””); Meinelt v. P.F. Chang’s China Bistro, Inc., 787 F. Supp. 2d 643, 65152 (S.D. Tex. 2011) (holding that employee was disabled under prong 1 because brain tumor substantially limited major bodily function of “normal cell growth” and “brain functions”).

Seventh Circuit: Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp. 2d 976, 985 (N.D. Ind. 2010) (holding that employee was disabled under prong 1 because remissive renal cancer, when active, substantially limited major life activity of normal cell growth); Horgan v. Simmons, 704 F. Supp. 2d 814, 819 (N.D. Ill. 2010) (holding that employee stated claim that he was disabled under prong 1 because HIV substantially limited “the function of [the] immune system”).

Eighth Circuit: Seim v. Three Eagles Communications Inc., No. 09-CV-3071-DEO, 2011 WL 2149061, at *3 (N.D. Iowa June 1, 2011) (autoimmune disorder (Graves’ disease) substantially limited immune, circulatory, and endocrine functions).

 8. Reasonable Accommodation Under “Record of” Prong

Prong 2, or the “record of” prong, retains its original structure under the ADA, as amended. This prong is most important in cases in which a person is seeking an accommodation for an impairment that has completely resolved--for example, a broken hip that has healed. A person seeking an accommodation for an impairment that has not completely resolved--i.e., it may return--should claim coverage under the “record of” prong as well as the “actual disability” prong. “This is a consequence of the rule of construction in the ADAAA and the regulations providing that an individual with an impairment that is episodic or in remission can be protected under the first prong if the impairment would be substantially limiting when active.”

Of course, a person not seeking an accommodation should claim coverage under the “regarded as” prong, which provides coverage to a person treated adversely based on a perceived impairment. The relevant EEOC regulations and case precedent follow.

a. EEOC Regulations and Guidance

“An individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to the past disability. For example, an employee with an impairment that previously limited, but no longer substantially limits, a major life activity may need leave or a schedule change to permit him or her to attend follow-up or “monitoring” appointments with a health care provider.”

b. Case Precedent

Davis v. Vermont, Department of Corrections, 868 F. Supp. 2d 313, 326-27 (D. Vt. 2012) (holding that employee who returned to work after medical absence for hernia surgery stated claim that he was disabled under prong 2).