‘Regarded as’ Claims Under the ADA and TCHRA
Advantage and limitations.
Written by Holly B. Williams
Title I of the Americans with Disabilities Act of 1990, or ADA, prohibits discrimination on the basis of disability in hiring, firing, compensation, job training, and other terms and conditions of employment.1 The term “disability” has a three-prong definition under the ADA.2 As explained in more detail below, the third prong—being “regarded as” disabled—is a lesser standard of proof because there is no requirement to prove a limitation in a major life activity.3 However, there are two important limitations on “regarded as” claims: they cannot be transitory or minor,4 and there is no obligation for an employer to reasonably accommodate an employee who is “regarded as” disabled.5 This article examines some of the recent cases interpreting “regarding as” claims under the ADA and its counterpart under state law, the Texas Commission on Human Rights Act, or TCHRA.6
Definition of Disability
Under the ADA, the term “disability” is defined as:
(A) a physical or mental impairment that substantially limits one or more major life activities…;
(B) a record of such impairment; or
(C) being regarded as having such an impairment….7
The definition under the TCHRA is similar.8 Texas state
courts look to analogous federal statutes and cases when interpreting
TCHRA (Chapter 21).9 In fact, one of the stated purposes of
Chapter 21 is to “provide for the execution of the policies embodied in
Title I of the [ADA] and its subsequent amendments.”10
The Americans with Disabilities Act Amendments Act, or ADAAA, changed the third prong of the definition of disability: being “regarded as” disabled.11 The first prong requires a plaintiff to prove a physical or mental impairment that substantially limits a major life activity.12 Under the third prong, a plaintiff may allege discrimination on the basis that the employer regarded the plaintiff as disabled without having to show that the plaintiff was actually limited in a major life activity.13 This is a lesser showing that expands the number of potential claims. However, two important limitations apply to regarded as claims. First, the regarded as prong does not apply to impairments that are “transitory and minor.”14 Second, there is no duty of reasonable accommodation for individuals who meet the definition of disability solely on the basis of the “regarded as” prong.15
No Requirement to Prove Limitation of a Major Life
According to the ADA, as amended, an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been discriminated against “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.”16 “Major 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.17 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.”18 For a regarded as claim, a plaintiff does not have to prove that the employer perceived his or her impairment as limiting a major life activity.19
Burton v. Freescale Semiconductor, Inc. is the U.S. Court of Appeals for the 5th Circuit’s first examination of what it means to be “regarded as” impaired under the ADAAA.20 Nicole Burton was a temporary employee who inhaled chemical fumes while on assignment to a microchip manufacturer. She reported chest pains at work and visited the emergency room due to heart palpitations.21 The 5th Circuit held that there was sufficient evidence for a jury to conclude that Freescale regarded Burton as disabled because Freescale collected documentation in the form of multiple reports from her supervisors explicitly tying complaints about her conduct to her asserted medical needs.22 These emails extensively discussed Burton’s health condition and symptoms.23
In Cannon v. Jacob Field Servs. N. Am., Inc., the 5th Circuit acknowledged that the ADAAA overruled prior authority requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity.24 According to the court, “the amended ‘regarded as’ provision reflects the view that ‘unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are just as disabling as actual impairments.’”25
Michael Cannon applied for a job as a field engineer with Jacobs Field Services, a construction company. Cannon had a rotator cuff injury that prevented him from raising his right arm above his head. The district court granted summary judgment on the basis that Cannon’s rotator cuff injury was not a disability because it did not substantially impair his daily functioning.26
The 5th Circuit reversed, finding evidence that Cannon was either disabled or regarded as disabled. The court identified an email from the technical services manager stating that Cannon would not be able to meet the job duties even though the human resources representative had told Cannon that the employer had concerns about his ability to climb a ladder maintaining three-point contact with either arm, an OSHA requirement.27 Cannon submitted evidence from his doctor saying that he could meet that requirement. Nevertheless, the employer rescinded the job offer. The 5th Circuit held that the email from the technical services manager, as well as other evidence from the pre-employment physical, supported a finding that the employer perceived his shoulder injury to be an impairment.28
Mere knowledge of an employee’s medical condition does not by itself support an inference that the employer regarded her as disabled.29 In Ariza v. Loomis Armored US, L.L.C., the 5th Circuit upheld a jury verdict in favor of the employer. The plaintiff alleged that she had a history of seizures and epilepsy. The employer presented evidence that her medical records did not reflect those conditions. The employer also presented evidence that the plaintiff was a disgruntled employee who had been looking to change jobs for some time.30
Does Not Apply to Transitory and Minor
The ADA excludes impairments that are “transitory and minor” from the definition of being regarded as having an impairment.31 A transitory impairment is defined as one with an actual or expected duration of six months or less.32 Chapter 21 does not use the term “minor” and instead incorporates the six-month duration into the definition of “regarded as having  an impairment.”33
The 5th Circuit has not yet decided whether “transitory and minor” is an affirmative defense or an element that must be negated by the plaintiff in order to establish a prima facie case.34 In Lyons v. Katy Indep. Sch. Dist., the 5th Circuit held that the plaintiff’s lap band surgery was transitory and minor based on a text message from the plaintiff to her supervisors that she would be out of work for two weeks and on restrictions for six to eight weeks.35 The 5th Circuit held that it was unnecessary to decide whether the issue is an element of the plaintiff’s prima facie case or the defendant’s affirmative defense because the employer was entitled to summary judgment as a matter of law under both standards.
At least one Texas court of appeals has held that it is part of the plaintiff’s burden of proof to show that the disability is not transitory nor minor.36
Reasonable Accommodation Not Required
Generally, once an employee makes a request for reasonable accommodation, an employer has a duty to engage in an interactive process with an employee to determine whether reasonable accommodation is available.37 An important distinction between “regarded as” claims and other forms of disability discrimination is that an employer is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong. This limitation is contained in the Equal Employment Opportunity Commission’s regulations and was recognized by the 5th Circuit in Amedee v. Shell Chem., L.P.38 In that case, the plaintiff had only alleged that the employer regarded her as disabled; she did not allege that she had an actual disability. The 5th Circuit affirmed summary judgment on the plaintiff’s failure-to-accommodate claim.
In sum, while a “regarded as” claim may present a lesser standard of proof for a plaintiff seeking to establish disability discrimination, the plaintiff must have an actual disability in order to pursue a failure-to-accommodate claim.TBJ
HOLLY B. WILLIAMS
ounded Williams Law Firm in 2003 to provide “Legal Solutions at Work” in the Permian Basin. She is certified in labor and employment law by the Texas Board of Legal Specialization.