The are two classes of plaintiffs who may assert claims under the Americans with Disabilities Act:
- Those who have a “disability”; and
- Those who not have a disability but who, nonetheless, are “regarded as” disabled by their employer.
We know that a disability is an actual impairment that substantially
limits one or more major life activities. But “regarded as” disabled?
What’s up with that?!?
An employee in Pennsylvania, New Jersey, or Delaware is regarded as disabled if she establishes that she has been discriminated against “because of an actual or perceived impairment whether or not the impairment limits or is perceived to limit a major life activity.” The question then is not the employee’s actual condition, but her perceived condition.
Still, an employee cannot be regarded as disabled if the actual or perceived impairment is “transitory and minor.” A “transitory” impairment is defined as one “with an actual or expected duration of 6 months or less.” In addition, the recent amendments to the ADA provide a safe haven for employers by stating that an employer is not required to provide a reasonable accommodation to an individual who is covered only under the “regarded as” prong of the Act. Further, just because an employer offers an accommodation to an employee does not mean that the employer regards the employee as disabled.