Substantial Limitation Not Required to be “Regarded As” Disabled

The U.S. Court of Appeals for the Tenth Circuit recently issued an opinion serving as a cautionary reminder to employers that the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) revised the definition of disability to no longer require a substantial limitation of a major life activity because of a physical or mental impairment to be “regarded as” disabled by an employer.

In Neri v. Board of Education for Albuquerque Public Schools, No. 20-2088, 2021 WL 2409988 (10th Cir. June 14, 2021), the plaintiff, a high school teacher, complained, among other things, that another teacher assaulted her in a meeting, triggering her Post-Traumatic Stress Disorder (PTSD). While the plaintiff’s claim against the teacher was not substantiated, she provided support to the employer of her PTSD from her therapist.

At the plaintiff’s year-end evaluation, her supervisor reassigned her to a teaching position that required a lesser degree of skill and responsibility. Despite the plaintiff’s objection to the reassignment, the supervisor informed the plaintiff that she was concerned about her health. Her reactions to stressful situations had become more apparent and frequent. She was exhibiting paranoia by claiming she was being isolated and targeted by the employer. The plaintiff subsequently resigned and filed suit alleging, among other claims, that her supervisor discriminated against her because of her disability—PTSD.

To proceed with a disability-discrimination claim under the ADA, an employee must establish that they have a disability. One way of proving this is by showing that they were “regarded as” having a physical or mental impairment by their employer.

For employees alleging disability discrimination to show that their employer regarded them as having an impairment, they must show that: (1) they have an actual or perceived impairment, (2) the impairment is neither transitory nor minor (i.e., has an actual or expected duration of 6 months or less), and (3) the employer was aware of and therefore perceived the impairment at the time of the alleged discriminatory action. Here, the Tenth Circuit found that the plaintiff met all three elements: she had been diagnosed with chronic PTSD, and her supervisor informed her she was reassigning her to avoid triggering her impairment.

Ultimately, the Tenth Circuit reversed the district court’s decision dismissing her claim. The Tenth Circuit determined that the district court relied on the wrong standard—using the pre-ADAAA definition—by stating that a “regarded-as” disability requires a showing that the employer mistakenly believes that a person has an impairment that substantially limits one or more life activities or that an actual, nonlimiting impairment substantially limits one or more major life activities. Rather, the ADAAA amended the requirements of a “regarded as” disability to move away from showing substantial limitation. By establishing that the supervisor regarded the plaintiff as disabled and took an adverse action against her, the Tenth Circuit determined that the plaintiff should have been able to move forward with her disability discrimination claim.

This opinion serves as a reminder that employees may be protected under the ADA if they are treated adversely because of an actual or perceived impairment, regardless of the impairment’s severity. In addition, employers must be cognizant that employees without an impairment may also be covered if the organization erroneously believes an impairment exists and takes adverse action on that basis.

Please reach out to Employers Council if you have additional questions regarding your organization’s responsibilities under the ADA.