Saturday, February 10, 2007

Ninth Circuit Explains “Regarded As” Claims under ADA and Rehab. Act

An employer’s acknowledgement that an employee has an “impairment” is not enough to support a claim that the employee is “regarded as” having a disability.
Walton v. U.S. Marshall Service involves a former security guard at a federal courthouse. The essential functions of the job include the ability to “localize” sound. Walton had only one functioning ear, which affected her ability to localize sound. After a required medical exam, the security services contractor terminated Walton’s employment because she could not perform essential functions of her job. She claimed the contractor “regarded” her as having a disability.
The Ninth Circuit held:

to state a “regarded as” claim a plaintiff must establish that the employer
believes that the plaintiff has some impairment, and provide evidence that the
employer subjectively believes that the plaintiff is substantially limited in a
major life activity. If the plaintiff does not have direct evidence of the
employer’s subjective belief that the plaintiff is substantially limited in a
major life activity, the plaintiff must further provide evidence that the
impairment imputed to the plaintiff is, objectively, a substantially limiting
impairment.

Applying this rule, the Court of Appeals decided that the employer’s actions demonstrated only that the employer regarded the employee as having an “impairment,” but there was no evidence the employer considered the impairment to be “substantially limiting” in one or more major life activities.

Employers often ask whether exploring the possibility of accommodation, asking an employee to have a fitness for duty examination, or otherwise acknowledging medical impairments will create “regarded as” liability. This decision makes it harder for plaintiffs to make that argument under the ADA and federal Rehabilitation Act.