To answer that question, I’ll first introduce you to “Jane.”
Jane isn’t her real name, but we’ll go with it for this post. Jane claimed that her employer discriminated against her in violation of the Americans with Disabilities Act when it fired her because she had asthma.
Her asthma, according to Jane, is an ADA disability because it makes it difficult for her to breathe.
That’s not to say that Jane can’t perform activities that you and I can. Indeed, with an inhaler, Jane can do lots of stuff that you and I would be like, “How the heck does Jane do that?”
Back in the day, she cheered competitively, sang and danced in a professional musical production in New York City, and coached cheerleading. Since 2014, she has competed in exhibition cheerleading, attended 100-200-minute “heavy exertion” CrossFit classes two or three times weekly, cruised to Alaska and the Caribbean, traveled to Spain and Orlando, and participated in gymnastics twice a week.
But I digress.
The issue in Jane’s lawsuit against her former employer was whether Jane had an actual ADA disability such that her asthma “substantially limited” her ability to breathe. Much to my surprise, two judges on a three-judge panel in the Sixth Circuit Court of Appeals concluded that Jane’s asthma was not an actual disability.
Why wasn’t Jane’s asthma an actual disability? According to the majority, Jane did not describe the impact of her asthma as severe enough to qualify as a “substantial limitation” on her breathing. For example, she testified, “I don’t like to think that there’s things I can’t do,” but would opt out of an Alaskan polar plunge and ridge hike or being in the cold for prolonged periods. So, Jane’s asthma can limit her breathing—but only in transient, isolated, or extra strenuous circumstances — limitations that are not “substantial” when compared to the average person. Therefore, she does not have an actual disability.
Or does she?
According to the dissenting judge, just because Jane could cope with her asthma does not bar her from being considered disabled within the purview of the ADA. Indeed, as amended in 2009, the ADA does not consider mitigating measures, such as an inhaler for someone with asthma.
“We would not hold that a plaintiff with a prosthetic leg who claims he is substantially limited in his ability to walk could not be considered disabled if he attended workout classes,” noted the dissent. “That would be a nonsensical interpretation of the ADA.”
Jane’s asthma, when active, substantially limited her ability to breathe compared to most people in the general population.
If you are thinking about relying on this decision to deny an accommodation to an employee with asthma, think again.