“Regarded As” Or “Perceived Disability” Claims Under The Americans With Disabilities Act

Throughout the last decade, Congress became increasingly concerned that federal courts were making it nearly impossible to sue for disability discrimination.  Basically, under the federal courts’ strict reading of the ADA almost no one was considered “disabled” and thus protected by the ADA.  Federal courts were consistently dismissing disability discrimination claims before trial based on plaintiffs’ failure to prove that they were “disabled.”

The concerns regarding the courts’ increasingly narrow definition of “disabled” led Congress to pass the Americans With Disabilities Act Amendments Act (“ADAAA”) in 2008.  The ADAAA went into effect on January 1, 2009.  It governs all disability/employment situations that have arisen since that date.  Congress intended the ADAAA to reinstate the broader definition of “disabled” under federal law that had existed when the original ADA was passed in 1990.

Because of the prolonged nature of disability discrimination claims, claims under the ADAAA (which only applies to events occurring after December 31, 2008) have just begun appearing in court decisions within the last two years or so.  That’s enough time to begin discerning some of the ADAAA’s effects.  One type of claim, “regarded as” or “perceived disability,” will very clearly have a tremendous impact on the employee side of disability discrimination.

“Regarded as” or “perceived disability” claims permit employees to prove that they are disabled by demonstrating that their employer regarded them as having a mental or physical impairment, even if the employee has no physical or mental impairment at all.  Employees arguing a “perceived disability” claim  do not need to show that their physical or mental impairment substantially limits a major life activity.  But, to avoid turning every minor or temporary physical or mental condition into a disability discrimination  case, the ADAAA excludes from “regarded as” or “perceived disability” coverage impairments that are transitory and minor.  A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Disability discrimination cases require legal analysis of federal and state statutes, agency regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.


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