In the waning days of George W. Bush’s presidency, he signed the Americans with Disabilities Act Amendments Act (“ADAAA”). The ADAAA implemented several changes to the Americans with Disabilities Act of 1990. The change that has been most problematic for my clients is the liberalization of claims for being “regarded as” disabled.
The ADA protects employees from employment actions which are taken because they: (1) suffer from a disability; (2) have record of a disability; or, (3) are “regarded as” disabled by the employer. The third prong protects employees who are not actually disabled, but whose employers treat like they are disabled. Under the 1990 version of the ADA, it was difficult for an employee to prevail on a “regarded as” claim, because the employer must have wrongly believed that the employee was “substantially limited” in a major life activity (like walking or working). The ADAAA made it much easier for employees to sue for a “regarded as” disability. Now, an employee “need demonstrate only that the employer regarded him as impaired, not that the employer believed the impairment prevented the [employee] from performing a major life activity.” Wolfe v. Postmaster General, 488 Fed. Ap’x. 465, 568 (11th Cir. 2012).
In December, the Eleventh Circuit Court of Appeals reviewed the liberalized standards of the ADAAA, and made it extremely easy for an employee to prove they are “regarded as” disabled: “an employer that takes an adverse action because it fears the consequences of an employee’s medical condition has regarded that employee as disabled.” Lewis v. City of Union City, 877 F.3d 1000, 1012 (11th Cir. 2017).
In the real world, employers frequently take action because they fear the consequences of an employee’s medical condition. As a result, the ADAAA and the Lewis decision make it much easier for employers to be sued based upon reasonable business decisions. Employers can still avoid liability by showing that the employee could not perform the “essential functions” of his or her job, or that the employee was a “direct threat” to themselves or others. Nevertheless, employers who are contemplating taking any action against an employee because of that employee’s impairment should proceed very cautiously.