Principles Of Management Unit I Article Review

Nearly a decade ago, Congress enacted the ADA Amendments Act of 2008 (ADAA)1 with the express goal of easing the eligibility requirements for the protections afforded by the Americans with Disabilities Act (ADA).2 With the ADAA, Congress reaffirmed its intent that the ADA "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities^]"3 In the employment context, the ADA prohibits employers from discriminating against qualified individuals with regard to hiring, termination, promotion, compensation, and training procedures as well as other conditions or privileges of employment.4

Under the ADA, an individual is considered to have a disability if he or she has "a physical or mental impairment5 that substantially limits one or more major life activities," has "a record of such an impairment," or is "regarded as having such an impairment."6 The ADAA retained this three-pronged definitional framework, but signifi cantly broadened the scope of the third prong, commonly known as the "regarded as" disability definition. While the ADA required that an employer regard an individual as having an impairment that substantially limits a major life activity, the ADAA provides:

An individual meets the requirement of being "regarded as having such an impairment" of the individual establishes that he or she has been subjected to an action prohibited under this Act 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.7

According to the U.S. Equal Employment Opportunity Commission (EEOC), between 2008 and 2015, charges related to the ADA rose 39 percent.8 By 2015, charges related to disability discrimination comprised 30.2 percent of all charges filed with the EEOC under the numerous statutory schemes it enforces, up from approximately 20 percent of the total from 1997 until 2008.9 Regarded as disabled charges represented 10 percent of all ADA charges filed between 2012 and 2014 and are the third leading reason plaintiffs file an ADA charge.10

The ADAA changes generally have been thoroughly documented in the literature, and several articles have examined the regarded as prong specifically.11 However, there has been comparatively little research attention given to the practical implications for employers of the new regarded as disabled definition. And, while much can be gleaned from reviewing the courts' analyses of regarded as claims, it is essential that the literature be continually updated: cases as late as 2011 applied preADAA standards because the underlying events occurred prior to the ADAA's effective date.12

The second section of this article briefly reviews how courts analyze regarded as claims. Along with establishing a disability, a plaintiff must also demonstrate that he or she is a qualified individual who was subjected to discrimination on the basis of the disability. The ADAA affected aspects of the plaintiff's burden of proof beyond merely the regarded as definition of disability; it also summarizes these changes. In the third section, the case law interpreting the ADAA revisions to regarded as discrimination claims is presented, again with an eye toward gleaning useful insights for employers. The fourth section of this article considers separately the issue of medical evaluations, which may be the basis of separate claims but are often closely related to the question whether an employee is regarded as disabled. The final section of the article offers practical recommendations for employers and concludes.

REGARDED AS DISABLED CLAIMS UNDER THE ADAA: A BRIEF OVERVIEW

In order to establish discrimination under the ADAA's regarded as prong, a plaintiff must establish "(1) she is a 'qualified individual' under the ADA, (2) she suffered 'discrimination]' as the term is defined by the ADA, and (3) the 'discrimination]' was 'bas[ed]' on 'disability' as defined by the ADA."13 A plaintiff may satisfy this burden by introducing either direct or indirect evidence.14 Direct evidence may include discriminatory statements or other "smoking gun" evidence, or circumstantial evidence15 such as "suspicious timing" or "ambiguous statements or behavior" toward employees in the protected group.16

The commonly utilized indirect method of proof for disability discrimination claims generally follows the McDonnell Douglas burden-shifting framework used in a variety of employment discrimination contexts.17 Using this framework, several circuits explain that a plaintiff must show that he or she has a disability, was a qualified individual, and was subjected to an adverse employment action on the basis of the disability.18 Without direct evidence of discriminatory intent, many of these cases turn on whether a plaintiff can establish that an employer knew or had reason to know of the plaintiff's disability, or perceived the plaintiff as having a disability, prior to taking adverse employment action.19 From there, the burden shifts to the employer to produce a legitimate, nondiscriminatory explanation for the adverse employment action.20 The plaintiff must then introduce evidence that the employer's proffered reason is pretextual.21

Notably, discrimination claims may include allegations that an employer failed to provide reasonable accommodations to a qualified individual,22 although some circuits treat these claims as distinct.23 In any case, the ADAA clarified that plaintiffs who meet the definition of disability solely under the regarded as prong are not entitled to accommodation on that basis alone; only those with actual disabilities are so entitled.24 Additionally, some courts treat claims that an employee was improperly subjected to medical evaluations as related but distinct forms of discrimination claims.25

These types of discrimination claims may be distinguished from retaliation claims, which allege that an individual suffered an adverse employment action as a result of asserting his or her rights under the ADA or ADAA.26 While discrimination claims under the regarded as prong may be brought in tandem with retaliation claims, the bulk of this article is devoted to examining discrimination-based claims, including regarded as and medical evaluation claims.

The next section of this article analyzes the ADAA's impact on each element of regarded as discrimination claims as construed by the federal courts. The requirement that discrimination be shown in the form of an adverse employment action is briefly addressed. Next, the qualified individual element is considered. The section concludes with a discussion of causation and the definition of disability, respectively. The fourth section of the article considers separately issues involving claims based on improper medical evaluation requirements, which are closely related but distinct from regarded as discrimination claims.

For issues involving elements of discrimination claims that were not substantially affected by the ADAA, brief summaries are included using a sampling of recent case law. Where the ADAA had more significant impact, the cases are examined more comprehensively and in greater depth. Because the goal is to derive practical recommendations for employers using illustrations from the case law, outlier circuits or circuit splits on particular issues are noted specifically. Even where not noted, however, with limited ADAA guidance from the U.S. Supreme Court, affected employers are advised to consult counsel before relying on lower court precedent in reaching employment decisions, especially from other circuits.

ADAA CHANGES TO REGARDED AS DISABLED CLAIMS: THE CASE LAW

Discrimination: The Requirement of Adverse Action

The ADAA did not directly alter the requirement that an employee alleging discrimination must establish it resulted in an adverse employment action. "As before, 'discrimination]' under the ADA means an 'adverse employment action.'"27 However, the ADAA's clarification that plaintiffs who allege discrimination solely under the regarded as prong are not entitled to accommodation indirectly impacted this element in circuits that analyze failure to accommodate claims under the same framework as discrimination claims in general28: such plaintiffs may not establish adverse action through an employer's failure to accommodate.29 While some courts (including the U.S. Court of Appeals for the Seventh Circuit) had not addressed the issue prior to the ADAA,30 this clarification is consistent with pre-ADAA holdings of several circuits, including the U.S. Court of Appeals for the Eighth Circuit.31

Aside from this change, the nature and scope of the requirement that a plaintiff demonstrate adverse employment action remains the same. Briefly, in both discrimination and retaliation claims, courts generally require that an alleged adverse employment action be a material change in the terms or conditions of employment, such as "termination, reduction in pay or benefi ts, and changes in employment that significantly affect an employee's future career prospects," while "minor changes in working conditions that merely inconvenience an employee or alter an employee's work responsibilities" do not qualify.32 Increasing an employee's workload with material changes to the employee's duties may constitute adverse action, but not all changes to job responsibilities qualify.

For instance, in a 2016 case, Kelleher v. Wal-Mart Stores, Inc, the plaintiff began working at Walmart as a stocker during an overnight shift, but was later transferred to an overnight cashier position.33 The new position included mostly similar duties (i.e, overnight stocking), but was less strenuous and did not require the use of ladders (which the plaintiff was unable to do).34 Additionally, the overnight cashier position included limited customer interaction, although only when the cash registers became busy. The plaintiff alleged that she felt pressured into accepting the transfer although she hadn't wanted it because she was concerned she would have difficulty due to her speech and vision problems. However, she acknowledged that the cashier positon was less physically demanding and paid more than the stocker position. The court ruled that the changes to the plaintiff's job duties were minor and not adverse because minor changes, even those that are inconvenient or make a plaintiff unhappy, do not suffice.35 Finally, although the court noted that an adverse action finding could have resulted had the plaintiff been unable to perform the new job duties or had she actually been harassed by customers, the plaintiff produced no evidence that either was the case.36

In a 2014 Seventh Circuit case, the court ruled similarly where a manager responded to a disabled plaintiff's request to work in a different department and work more hours by saying, "I will place you wherever I want," and scheduled the plaintiff in a position that required minimal accommodation.37 The court emphasized that scheduling was a primary job duty of the manager and that he was simply exercising legitimate control over the employee's position and hours. And, although the plaintiff's hours were reduced, there was evidence in the record that at some point he had requested time off, making the cause of the reduction unclear.38

Of course, in order to be protected under the ADA, an employee must demonstrate that he or she is a qualified individual as part of his or her discrimination case. The following section considers the ADAA's impact on that element.

Qualified Individuals

The U.S. Court of Appeals for the Tenth Circuit has remarked that "[a]lthough the ADAA expanded the scope of 'regarded as' claims, 'Congress's 2008 amendments to the ADA did not fundamentally change the qualification requirement.' "39 A qualified individual is one who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."40 As noted in the previous section, the ADAA clarified that accommodation is not required for employees without an actual disability. Thus, in cases where plaintiffs allege discrimination based solely on the regarded as disabled prong, they must be able to demonstrate that they were capable of performing the essential job functions without accommodation.

The text of the ADA provides that "consideration shall be given" to the employer's view of what job functions are essential, and implementing regulations offer further guidance on the factors to be considered.41 In practice, courts continue to defer considerably to the employer's description of the essential job functions. The Tenth Circuit has explicitly held that it will defer to the employer's description of the job and has refused to "second guess the employer or require the employer to lower company standards," at least where the description is "job-related, uniformly enforced, and consistent with business necessity."42 While the employer's description is not "conclusive evidence," it is weighed "heavily,"43 And, as noted, the burden is on the plaintiff to prove he or she could perform the essential job functions.44

Courts have consistently held that poor attendance is an indicator that an employee cannot perform the essential job functions. In a 2015 case, the Seventh Circuit found that a teacher whose contract was not renewed after he was absent 23 times during a school year was not a qualifi ed individual under the ADA, citing a number of cases regarding erratic job attendance as controlling precedent.45 In an unreported U.S. Court of Appeals for the Fourth Circuit case, the court found that a nurse who was discharged by her employer could not demonstrate she was a qualified individual where she repeatedly missed work, had to be sent home after appearing impaired and incoherent at work after taking multiple medications, and made mistakes in administering medication to patients.46

Significantly, in both of the previous cases, the courts ruled on the plaintiff's qualifi ed individual status before turning to the question of whether the plaintiff was disabled. The U.S. Court of Appeals for the Third Circuit has similarly evaded analysis of the ADAA's impact on regarded as claims by considering the qualified individual element first and disposing of the case on that basis.47 This is consistent with the findings of a 2013 empirical investigation of the impact of the ADAA in the courts. Professor Stephen F. Befort found that courts applying the ADAA routinely bypass the disability question by addressing the qualified individual status first.48 In fact, he found that the percentage of summary judgment rulings based on this issue jumped from 28.2 percent pre-ADAA to 47.1 percent post-ADAA.49 At the same time, in summary judgment decisions where the focus is the plaintiff's disability status, post-ADAA courts are signifi cantly less likely to rule in favor of the employer (employers won in 74.4 percent of these decisions pre-ADAA, and only 45.9 percent post).50 However, the percentage of summary judgment decisions resolved on the basis of disability status declined from 71.8 percent to 52.9 percent.51

These findings suggest that the ADAA has had a far more substantial impact on the qualified individual element than the statute's text alone would suggest. While the ADAA broadened the definition of disability in an effort to expand the ADA's protections, the inquiry in the courts has now shifted toward qualified individual status. In light of this, additional comments on the implications for employers are offered in the recommendations section, below. First, however, is a consideration of the ADAA's impact on the remaining elements of regarded as discrimination claims under the ADA.

Causation: Discrimination On the Basis of a Disability

The Appropriate Causation Standard

The ADAA prohibits discrimination "on the basis of" a disability.52 This altered the original language of the ADA, which prohibited discrimination "because of" a disability.53 The courts continue to grapple with the question of whether Congress intended this as a substantive change to the nature of the causal connection between an employer's adverse action and a plaintiff's disability. Further complicating the issue, there was disagreement among the circuits over the appropriate causation standard even before the ADAA was enacted.54

For a time, a majority of circuits applied a "mixed-motive" standard to ADA discrimination claims, which required only that a plaintiff demonstrate that his or her disability played some role in an employer's decision to take adverse employment action.55 Under the mixed-motive framework, an employer may be liable if the impermissible consideration of a plaintiff's disability was a factor in its decision, even if other permissible factors also played a role.56 This is the causation standard applicable in Title VII claims alleging discrimination based on race, color, religion, sex, or national origin; courts found it applicable in the ADA context, in part, because the ADA cross-references Title VII in order to provide for remedies.57

However, several circuits reversed course after the 2009 decision of the Supreme Court in Gross v. FBL Financial Services, Inc. There, the Court ruled that the mixed-motive framework did not apply in discrimination claims brought under the Age Discrimination in Employment Act, which prohibits an employer from taking adverse employment action "because of" an employee's age.58 Instead, the "because of" language requires the application of a "but-for" standard of causation.59 This more stringent standard requires that the plaintiff demonstrate his or her disability was a determinative factor in the employer's adverse employment decision-i.e., the decision would not have been made in the absence of the disability.60

This led multiple circuits to question whether Gross would also preclude mixed-motive causation in ADA claims given the ADA's "because of" causation standard. For instance, the Seventh Circuit ruled in 2010 that Gross required the but-for causation standard in ADA discrimination claims, overruling precedent applying the mixed-motive standard.61 However, in that opinion and in two subsequent cases, the court has questioned whether the ADAA altered the applicable causation standard, but has thus far declined to rule on the issue.62 The Eighth Circuit applied the mixed-motive causation standard prior to the ADAA and has continued to do so after the ADAA; however, the court has repeatedly expressed doubt as to whether the standard continues to be viable under either the pre- or post-ADAA language in light of the Supreme Court's decision in Gross.63

In Gentry v. East West Partners Club Management Co., the Fourth Circuit took the view that the ADAA's language was not intended to alter the ADA's causation standard, which it previously ruled was governed by the but-for causation test.64 The court found that the legislative history suggested the change was intended to shift the emphasis on whether a person was disabled to an analysis of whether discrimination against a qualified individual occurred. Therefore, the Fourth Circuit continues to apply the more stringent but-for causation test rather than the motivating factor test.65 The U.S. Court of Appeals for the Sixth Circuit has also ruled that the but-for test is applicable in cases under the ADA, and that the ADAA's language did not change this.66 The Third Circuit also applied the but-for causation test to an ADAA claim, although the opinion was unreported.67 Finally, the U.S. Court of Appeals for the Fifth Circuit has continued to apply the mixed-motive standard in post-ADAA cases.68

The Nature of the Required Causal Connection

Plaintiffs in ADA claims commonly proceed under the McDonnell Douglas indirect method of proof in large part because it is rare that plaintiffs obtain the type of smoking gun evidence that would clearly establish causation. Thus, in most cases, plaintiffs seek to establish a circumstantial connection between an adverse employment action and any evidence that a plaintiff was regarded as disabled. Perhaps because of the lack of direct evidence in these cases, courts seem to require plaintiffs to establish a fairly strong inferential connection in order to proceed to trial with their claims. Note that some of the following cases involve allegations of discrimination based on actual (rather than perceived) disability. Because the issues involved in these cases, such as discriminatory remarks, would be applicable in regarded as cases, they are discussed here for the purpose of the causation element only.

For instance, in Melin v. Verizon, an unpublished Tenth Circuit decision in 2014, an employee with ulcerative colitis alleged his supervisor had discriminated against him by assigning him particularly troublesome sales accounts that decreased his commissions.69 After the employee complained internally about the supervisor, a Verizon investigation determined that the supervisor had sent "rude and inappropriate emails," made "crude comments in front of direct reports and peers," and had discussed the plaintiff's "physical ailments with others."70 One specific allegation was that the supervisor had made remarks to other Verizon employees about the plaintiff "shitting himself."71 While the court found the supervisor's comments "unprofessional ... offensive and derogatory," it upheld summary judgment in favor of Verizon because the plaintiff had not established a nexus between the alleged adverse employment action and the supervisor's stray remarks.72 The court found that isolated comments in and of themselves cannot establish causation; they must be tied in some way to adverse action. The plaintiff alleged only that both the comments and the account assignment occurred in 2009, but failed otherwise to connect them.

A few cautionary words are in order, however. First, the court noted the plaintiff's brief failed to provide adequate citation to the record as evidence. Second, although the holding primarily rested on causation, the court was also extremely skeptical of the plaintiff's alleged adverse employment action. The court found evidence of only one problematic account, and the plaintiff failed to produce evidence showing that even that account had any impact on his commissions for the year. Overall, though, this case does suggest that even strong evidence of highly inappropriate remarks cannot alone establish causation. In addition, there must be a sufficient causal nexus, such as through close temporal proximity, and clear evidence of adverse employment action.

The Tenth Circuit's unwillingness in Melin v. Verison to infer causation simply because the alleged adverse action took place during the same year as the supervisor's derogatory remarks is consistent with the holdings of other circuits regarding timing issues in causation. A 2013 Eighth Circuit case, Brown v. City of Jacksonville, also involved allegations of numerous offensive comments by a supervisor. The plaintiff, who walked with a cane due to chronic hip problems, alleged that her supervisor repeatedly made remarks about her being old, slow, "unable to straighten up," and once said "Hey, Crip."73 The remarks, however, occurred between 2006 and 2007; the plaintiff was terminated from her position in 2009. The Eighth Circuit found that not only was the twoyear gap too long to permit an inference of causation under the indirect method of proof, evidence of the comments was too stale even to qualify as direct evidence of discrimination.74

In a 2012 U.S. Court of Appeals for the Eleventh Circuit case, a firefi ghter alleged that he was terminated because of his supervisor's erroneous belief that he was using drugs.75 However, the termination decision was made nearly a year after the supervisor initially heard rumors of the plaintiff's drug use.76 In upholding the summary judgment for the defense, the Eleventh Circuit stated that waiting a year to terminate does not support the inference that a perceived drug addiction had anything to do with the termination decision, citing circuit precedent fi nding even a three and a half month gap insuffi cient on its own to establish causation. The court also noted that there was no evidence to rebut the supervisor's testimony that while she had heard the drug use rumors, they played no role in her later decision to terminate the plaintiff. In a recent unpublished Third Circuit decision, the court noted it had "never held that a temporal gap of one month alone sufficiently demonstrates a causal connection" and cited precedent finding three weeks insufficient.77 However, the Third Circuit has found one week sufficient to raise the inference of causation.78

Finally, in an interesting Sixth Circuit case from 2013, an employee who was terminated after he failed a drug screening claimed that because his drug test result was a false positive due to his HIV medication, his termination on that basis constituted disability discrimination under the ADAA.79 In Bailey v. Real Time Staffing Services, Inc, the plaintiff framed his claim using a line of U.S. Court of Appeals for the Second Circuit cases holding that employees cannot be fired on the basis of conduct resulting from a disability. So, for instance, an employee with epilepsy may not be terminated for sleeping (so long as the employee has established she is a "qualified individual" under the ADA/ADAA). The plaintiff in Bailey argued that his positive drug result was a similar "manifestation of a disability." Thus, he contended he could proceed under the direct method of proof to establish causation.

The Sixth Circuit concluded that the positive drug test could not be categorized as conduct resulting from a disability and noted that the ADA and ADAA permit drug testing of employees. Further, because there was no evidence in the record that the drug test was actually a false positive-let alone that the employer knew it was false-the employee would have to proceed under McDonnell Douglas. Under that framework, the plaintiff was unable to offer evidence that the drug test result was merely a pretext for firing him. Although the plaintiff's doctor did send the employer a note stating that the positive drug test could be the result of a medication the plaintiff was taking, it did not specify what medicine the plaintiff was taking or for what condition. The court ruled that the note gave the employer "no information that could motivate a discriminatory firing," pointing out that without specification, the medication at issue could have been Tylenol. With no other evidence that the employer viewed the plaintiff as having any type of impairment, there was nothing to suggest any motive behind the termination other than the failed drug test.

As Bailey suggests, an employee seeking to establish discrimination on the basis of a disability generally must point to evidence that the supervisor or other decision-maker perceived the employee as disabled. In regarded as cases, this generally requires more than a showing that management knew the plaintiff was, for example, obtaining treatment or taking medication.

Establishing Disability under the Regarded As Disabled Prong

As noted, the ADA's three prong definition of disability includes individuals who (1) have "a physical or mental impairment that substantially limits one or more major life activities," (2) "a record of such an impairment," or (3) are "regarded as having such an impairment."80 The ADAA modified the definition to clarify that plaintiffs proceeding under the regarded as prong need only show they were 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."81 However, an individual cannot be regarded as disabled based on an impairment that is "transitory and minor," with transitory defined as having "an actual or expected duration of 6 months or less."82

As noted above, courts applying the ADAA often bypass the expanded regarded as definition by ruling instead on the qualified individual element. Nonetheless, a number of cases do examine and apply the ADAA's new regarded as defi nition. Several key issues are highlighted below. Note, however, that the ADAA's modifi cation incorporates both causation and discrimination into the regarded as disabled definition, making it difficult to fully divorce these elements for the purposes of analysis:

An individual meets the requirement of being "regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this Act 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.83

Thus, by necessity, some of the cases discussed below incorporate discrimination and causation issues previously outlined in this article.

Awareness or Perception of an Impairment

Even under the relaxed regarded as prong, the ADAA requires a plaintiff to produce evidence suggesting the employer perceived the plaintiff as impaired in some way, and that this perception was a basis for a discriminatory action. Generally, an employer's awareness that an employee has had or is scheduled to have surgery or suffers from some condition is insufficient in and of itself: again, because being subjected to discrimination is a part of the definition of disability under the regarded as prong, bare facts relating to an employee's impairment or potential impairment do not establish an employee was perceived as disabled.

For instance, in Tramp v. Associated Underwriters, Inc, an Eighth Circuit decision, an employee who was discharged one day before a scheduled knee surgery claimed she was terminated because the employer regarded her as disabled.84 The plaintiff had requested three days off of work for her surgery and pointed to the timing of the termination decision as evidence that the employer viewed her impairment as significant. However, other than alleging that other employees were therefore "generally aware" of her upcoming surgery, she offered no evidence that she was viewed as having an impairment or that the surgery played any role in the decision to terminate her. The court concluded, "At a minimum, [the plaintiff] must show that the decisionmakers knew about her alleged disability.... And in the end, even awareness of the scheduled surgery, without more, is not enough to maintain this claim."85

Likewise, in Cunningham v. Novo Nordisk, a Third Circuit decision, management was cognizant that a registered nurse suffered a heart attack and underwent quadruple bypass surgery and was gradually returning to work full-time.86 While the plaintiff's supervisor and some coworkers were aware of her condition, the court ruled this was insufficient to establish that any of them regarded her as disabled. In fact, the court noted that the plaintiff's performance reviews after the plaintiff returned to work from her surgery continued to be satisfactory, she received a raise and a bonus, and was never disciplined or penalized in any way. This case is particularly noteworthy because the plaintiff did allege that her supervisor and other coworkers made a variety of remarks related to her condition and that the supervisor expressed irritation and even disgust in response to requests for time off or to work from home. Nonetheless, the lack of adverse employment action,87 combined with her continuing positive reviews and salary increases, prevented the plaintiff from establishing she was regarded as disabled.

A 2015 Third Circuit case involved a claim by a truck driver who filed a worker's compensation claim after experiencing frostbite during a delivery in Canada while performing job duties such as unloading and conducting safety checks.88 After his return, he refused to deliver another load to Canada and was discharged. He later argued in court that his receipt of worker's compensation benefits and his related leave of absence were evidence the firm regarded him as disabled. The court disagreed, applying precedent in the circuit holding that a worker's compensation claim, standing alone, does not mandate the finding that an employer regarded an employee as disabled. Notably, the court went out of its way to point out that other employees routinely took steps to prevent frostbite during their work that were encouraged or even required by the employer, such as wearing gloves, taking breaks to rest or eat, and taking extra time in their duties as needed to stay warm. Further, the employer reassured the plaintiff numerous times that he would be able to take as much time as he needed to ensure he stayed warm during the delivery he refused to undertake.

In a Fifth Circuit case against Chase Investment Services involving termination of a financial advisor who had heart surgery, the court found that the employer's awareness of the heart surgery could not on its own establish that the plaintiff was regarded as disabled.89 The court noted that "a plaintiff's subjective belief and conclusory allegations" are insufficient; further evidence must be offered in support.

In contrast, a 2016 Fifth Circuit decision offers an example of a case where the plaintiff produced strong evidence on the regarded as element. In Cannon v. Jacobs Field Services, the plaintiff applied for a position as a field engineer and was offered the job.90 At his required pre-employment physical, he informed the physician of a prior shoulder injury and was cleared for work with some specified accommodations. However, upon viewing the physician's report, the employer determined that the plaintiff could not meet the job requirements: in an email to human resources regarding the suggested accommodations, a manager stated explicitly that the plaintiff would be unable to perform the job duties. In several follow-up communications, HR personnel relayed some specific concerns to the plaintiff, including the question whether he was able to climb a ladder; the plaintiff provided additional requested medical documentation to confi rm he was able to perform that task. However, the job offer was later rescinded because the employer nevertheless determined the plaintiff would be unable to climb a ladder.

The Fifth Circuit found that the plaintiff could certainly establish he was regarded as disabled under the ADAA-his evidence "easily passe[d] muster," particularly given the manager's email and other evidence surrounding the medical report.91 Moreover, the court largely disregarded the plaintiff's own testimony that he was able to climb ladders by compensating for his injury using his other arm, which the district court relied on as evidence that the plaintiff's injury did not substantially limit his abilities. The Fifth Circuit noted that the regarded as prong under the ADAA no longer requires that an actual or perceived impairment substantially limit a major life activity. Whether mistaken or not, the employer clearly perceived him as unable to perform the task-the plaintiff's insistence that he could perform the task did not preclude the employer from disbelieving him.92

On the other hand, not every limitation constitutes an impairment, either actual or perceived. A 2015 Eighth Circuit case involved a janitor, Danny Fischer, who was laid off from his position with Minneapolis Public Schools (MPS) for financial reasons, but was eligible for recall and reinstatement if a position later became available.93 MPS contacted him about a new job opening with a letter explaining that he would need to pass a strength test in order to be eligible and describing the test requirements. Fischer took the test, at which point he read and signed forms indicating he understood the requirements and test process. However, his score was not high enough to meet the medium-heavy strength designation required for the janitor position, and MPS declined to rehire him. MPS told Fischer that he failed the test because of the test's measurements of his back strength and that he could not be hired with his scores because he would be at a higher risk for injury and potentially incapable of performing some of the job requirements.94 Fischer filed suit against MPS alleging that the employer regarded him as disabled because of his back.

On review, the Eighth Circuit found that the statements of MPS employees did not demonstrate that Fischer was regarded as disabled.95 Instead, "they merely show[ed] that MPS believed that [the strength test] designated Fischer as medium strength and that a strength level of medium heavy was necessary" for the janitor position.96 The court found that MPS employees' observations were reasonable and did not raise an inference that they regarded Fischer as having any impairment: "Simply put, MPS's belief that Fischer was capable of performing the physical labor of a medium strength worker is not equivalent to a belief that Fischer suffered a physical impairment^]"97 The court also pointed out that MPS was willing to consider Fischer for other positions and would allow him to reapply for the janitorial position at a later date. Further, Fischer read and signed forms indicating he understood the strength test and requirements for the position.98

The Eighth Circuit has also addressed other physical conditions in the context of the ADAA. In Morriss v. BMSF Railway Company, a 2016 decision, the court considered the case of a plaintiff whose conditional job offer was revoked after a physical exam concluded that his obesity disqualified him for the position due to safety risks that the condition could present in the future.99 The court turned to the EEOC's regulations implementing the ADA and emphasized their definition of physical impairment as a physiological disorder or condition.100 Specifically, the EEOC has offered interpretive guidance that distinguishes impairments from physical characteristics that are "within normal range" and "are not the result of a physiological disorder."101 The court held that while obesity indicates a weight outside the normal range, it is an impairment (either actual or perceived) only if it results from a physiological disorder. Further, the ADAA's expansion of the regarded as disability prong did not alter the defi nition of "physical impairment," meaning that "as a threshold matter" a plaintiff must establish an employer perceived his condition as a physical impairment. "The ADA does not prohibit discrimination based on a perception that a physical characteristic-as opposed to a physical impairment-may eventually lead to a physical impairment as defined under the Act."102

The Sixth Circuit has issued at least three post-ADAA decisions that warrant a cautionary note. Each involved claims arising after the ADAA's effective date, but the court appeared to apply pre-ADAA standards and case law. The most recent case examined, Ferrari v. Ford Motor Company, involved a plaintiff's claim that he was regarded as disabled and denied an apprenticeship program opportunity because of his prior use of prescribed opiods over a period of his employment. The court ruled in favor of the employer on the basis that the evidence showed only that the employer regarded the employee as incapable of doing particular jobs and not of working in general. The rationale was based on the pre-ADAA requirement that an employee be regarded as having an impairment substantially limiting a major life activity, which is no longer applicable under the ADAA.103 Two other previous cases similarly cite the "substantially limiting" language in analyzing the ADAA regarded as prong.104 On the other hand, in a 2013 unpublished opinion, the Sixth Circuit noted the ADAA change.105

In sum, once an employer is aware that an employee may have an impairment, management's response makes all the difference in whether or not the employee is regarded as disabled. In general, a few stray or isolated remarks over time are not enough alone to prove that an employer regards an employee as disabled. However, a close proximity in time between questionable comments by management and an adverse employment action serve as evidence of discrimination. Further, the more pervasive comments become, the more likely it is that an employer will be found to regard the employee as disabled. Finally, courts seem to take the context and intention of any comments into consideration. Comments and inquiries made out of a genuine concern for an employee's health, wellbeing, and job effectiveness are less likely to be found evidence that an employer regards the employee as disabled than comments without any apparent purpose (or, obviously, those made to embarrass or harass an employee).

Transitory and Minor Impairments

While the ADAA did expand the definition of disability based on the regarded as prong, the statute excludes impairments that are "transitory and minor," with a transitory impairment defined as one "with an actual or expected duration of 6 months or less."106 Because this provision is presented in the statute as an exception, at least some courts have ruled that it functions as a defense; thus, an employer bears the burden of establishing that an impairment is transitory and minor.107 Moreover, EEOC regulations limit the exception to those impairments that are objectively transitory and minor; an employer's subjective belief is insufficient.108

In Neely v. Benchmark Services, a Sixth Circuit case, a new support administrator for family services was struggling with the technical aspects of the job as well as was experiencing sleeping problems. While he claimed to have sleep apnea, he had never been diagnosed with that condition; a physician instead indicated that he had very poor sleep habits such as going to bed too late. In denying his claim that the company regarded him as disabled, the court pointed out that by his own admission, sleep issues did not affect his ability to work, suggesting that the condition was minor.109 The court also disregarded several comments made by supervisors expressing impatience and criticism over the employee falling asleep at work, fi nding that the employer's awareness of an employee's "sleep problems" did not constitute perception of an impairment. Further, the employee never sought treatment while employed.

In a 2014 Third Circuit case, the court quickly dispensed with the plaintiff's argument that she was regarded as disabled because her employer was aware she had broken a finger.110 The court easily found the injury "objectively transitory and minor."111

In a Seventh Circuit case, an employer attempted to invoke the exception to claim that an employee's impairment was a temporary result of needing bypass surgery.112 The court rejected this argument, making a distinction between the surgery, which it called a treatment, and the underlying condition which required the surgery. The court found that the underlying heart condition-one serious enough to require a triple bypass surgery-was the appropriate measure of the employee's impairment. Thus, there was no evidence suggesting the impairment was "minor," and the employer also offered no evidence with regard to the length of time the condition was expected to persist.113 Finally, the adverse employment action was clear.

MEDICAL EVALUATIONS

In general, company-ordered medical evaluations for job-related reasons may be appropriate and are not necessarily evidence that management regards an employee as disabled.114 In fact, as evidenced by cases discussed in this section, it is one of the best practices to prevent an adverse regarded as disabled ruling if done properly. A request for a medical evaluation alone "does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee's major life activities."115 While employers generally are prohibited from requiring employees to undergo medical evaluations, an exception to this rule exists when an employer can show that the evaluation is "job-related and consistent with the business necessity."116 The business necessity test, as it is called, requires the employer to demonstrate that: (1) the employee requests an accommodation; (2) the employee's ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others."117

It should be noted that medical evaluations can be no broader or intrusive than is necessary,118 and that "the business-necessity standard cannot be satisfied by an employer's bare assertion that a medical examination was merely convenient or expedient."119 However, employers may use medical evaluation requests to determine "the cause of troubling behavior without exposing themselves to ADA claims."120 Employers should be aware, though, that a requirement of general medical evaluations as a blanket policy for all or a class of employees may be troublesome in some situations, especially if a company cannot show how the policy meets the business necessity standard specific to an individual or a class of employees.121

The most recent case law as it relates to medical evaluations in regarded as disabled claims focuses on issues involving essential functions and direct threats to safety. This section is, therefore, divided accordingly.

When the Employee's Ability to Perform the Essential Job Functions Is Impaired

Essential functions are "the fundamental job duties of the employment position the individual with a disability holds or desires."122 Essential functions are determined on a case-by-case basis by considering several factors which include employer's judgment, the written job description, time spent performing the function, consequences of not performing the function, and past and current work experiences of people in the position experience.123 Several recent cases provide guidance in this area based on various situations in the workplace.

Knowledge of the Essential Functions and Individualized Evaluations

When determining whether an employee or potential employee can perform the essential functions of the job, it is imperative that the supervising physician or those conducting the exam are informed what the functions of the job are. Additionally, the determination must be one that is individualized. Courts have interpreted "individualized" to mean that the assessment is not one that is broad, but rather assesses whether the employee can perform the essential functions for the position for which he or she is being hired or performs.

For example, in the 2014 district court case EEOC v. American Tool &Mold, an applicant for a process engineering position revealed that he had back problems in the past during a pre-employment screening.124 Tool &Mold requested a copy of his medical records, which were provided but found to be insuffi cient. Further examination was requested, which the applicant obtained but at a different hospital than the company preferred. The company did not feel the second assessment provided sufficient information to make a decision and terminated him from his probationary status. At no time did the screening company perform an individualized assessment of the applicant's ability to perform the essential functions of the position. In fact, the company did not provide job descriptions to the medical professionals that performed the pre-employment screenings and blanket standards were applied to every applicant regardless of position. The court also noted that once the employer was made aware of the surgery it did not complete the examination to verify any residual problems from prior medical intervention, and so the determination was not individualized. Moreover, his supervisor testified that he could perform the functions of the job. The court found that the company regarded the applicant as disabled and that the applicant was qualified for the position.

It should be noted that employers are permitted to ask for additional clarifications concerning a medical evaluation provided by the employee's physician and not be found to regard the employee as disabled if the original evaluation does not contain sufficient information for employers to make the essential functions determination.125 Additionally, organizations are also allowed to call doctors and talk to them for clarifi cation, with the employee's permission.126 However, as evidenced by the ruling in EEOC v. American Tool &Mold, employers should request additional clarifications with caution, especially when the employer did not fully conduct an individualized assessment.

Odd Behavior at Work

When employees exhibit odd behavior at work, it may make employers question the employees' ability to perform the essential functions of the job. For example, in the 2016 case, Barnum v. The Ohio State, a supervising doctor became worried over one of his nurses with a troubled personal life who couldn't perform a simple, routine task and expressed suicidal thoughts on one occasion.127 In addition, there were numerous reports by others made to the supervising physician concerning the nurse's ability to concentrate. She was required to undergo a psychological evaluation and was "placed on unpaid sick leave pending compliance with certain requirements," including the psychiatric evaluation.128 The nurse claimed management regarded her as disabled because it required her to undergo a medical examination that was not job-related and consistent with business necessity. The Sixth Circuit reasoned that, under existing precedent, employers may request a mental examination of an employee "after the employee exhibits unusual behavior"129 and that the facts presented constituted "significant evidence" which would cause a reasonable person to question whether the employee was fit to perform his or her duties.130 Therefore, the court concluded that the request for examination was "job-related and consistent with the business necessity," and the case was dismissed.

In another Sixth Circuit case, Johnson v. University Hospitals Physician Services, an enrollment specialist kept falling asleep at her desk.131 Management directed the specialist to be medically evaluated due to these episodes and to take some time off from work. Later, in court, the sole evidence presented by the specialist to support her regarded as disabled claim was that she was referred for a fitness-for-duty evaluation. The doctor who examined her reported that she was referred for evaluation due to "falling asleep at work," and generally having a "difficult" relationship with her manager.132 The employer took no action to prevent employee from returning to work. The court found that an "employer's perception that health problems are adversely affecting an employee's job performance is not tantamount to regarding that employee as disabled."133 The reasons for referral were directly related to her ability to perform the essential functions of the job, and as such, the specialist's regarded as disabled claim failed.

Limited Information and Non-Job-Related Conduct

When management has limited information upon which to make a decision about whether to request a medical evaluation or the information management has is not related to the essential functions of the job, justifying a medical evaluation becomes problematic. For example, in Kroll v. White Lake Ambulance, a female EMT was sent for medical evaluation/counseling for a troubled affair she was having with a co-worker, which was marked by frequent arguments. There was ample evidence of her aberrant emotional behavior such as crying in a grocery parking lot, calling the office manager after a shift in tears, crying and arguing with her boyfriend in a hallway, and texting on her cell phone while operating an ambulance, a violation of official policies.134 Yet, the director who made the decision regarding the medical evaluation only had knowledge of one incident where she provided substandard patient care. In fact, he testifi ed that he never had a problem with her work performance related to patient care outside of one incident. He was also aware of only one incident where she violated safety rules by talking on her cell phone while operating an ambulance. The director stated that he recommended counseling because the EMT's life "was a mess and he could help her."135 In making its decision, the Sixth Circuit only considered what the director had knowledge of, as he was the one that made the determination regarding the medical evaluation, and noted that in the context of an EMT's duties, employers would normally be concerned with transportation and care, not what happens outside of work. The court held that a reasonable jury may conclude that, based on just two incidents presented, she could perform the essential functions of her position and ordered the case to trial.136

Repeated Medical Updates

Employers may request updates on a medical condition if the requested update is related to the essential functions of the position and not unduly broad. While no ADA cases were found related to an employee's medical updates, an incident involving regarded as disabled claim under the Minnesota Human Rights Act is instructive. In Watt v. City of Crystal, two work-related incidents involving a police officer resulted in a fitness for duty evaluation. The medical report found him able to perform his duties but recommended that he remain in therapy so he could continue "to process anger, frustrations, and suspicions."137 The city required periodic medical updates on his condition, to which he objected. The court determined that these requests were "specifically tailored to gather information concerning his progress with relation to anger and distrust of his superiors."138 Therefore, the court determined that the updates were a business necessity and not "unduly broad or intrusive."139

Failing to Follow a Medical Evaluation

Further, failing to follow medical recommendations which show that the employee can perform essential functions of the job can result in an adverse legal ruling for employers. Cannon v. Jacobs Field Services140 is one such case. The court's holding primarily rested on its analysis of whether the plaintiff was a qualified individual, but the discussion is also pertinent regarding essential functions under the business necessity test. In Cannon (discussed in further detail above), management concluded that a job applicant could not climb ladders and claimed that its policy prohibited employees who were taking narcotics from operating company vehicles. This policy was unwritten and its enforcement unclear. Further, while the applicant had a prescription for pain medication, it was to be taken as needed and his pre-employment drug test did not reveal the presence of any drugs. Because there was evidence that the applicant could perform the essential job functions (including evidence from the employer's own pre-employment medical evaluations), the Fifth Circuit ruled the case could proceed to trial.

When the Employee Poses a Direct Threat to Himself or Others

Whether or not an "individual poses a direct threat shall be based on an individualized assessment of the individual's present ability to perform the essential functions of the job"141 that is determined after considering the "risk of substantial harm to the health or safety to the individual or others."142 A direct threat defense is one that must be "based on reasonable medical judgment that relies on the most current medical knowledge," relies on the best available objective evidence, or is commonly known.143 Duration, nature, severity, likelihood, and imminence are all considered in making the assessment.144 Additionally, the courts have recognized that less or "slighter" medical evidence may be justified to prove a direct threat when the employer is one involved in public safety.145 However, even a small number of isolated incidents may not be sufficient to meet the components of the business necessity standard in those employers involved in public safety. Further, what is considered "reasonable medical judgment" is not sufficiently clear, but it must be based on common medical knowledge and more than a hunch or intuition.146

Medical Knowledge

One recent case decided in 2016, EEOC v. BNSF Railway, is informative regarding what type of medical information is sufficient for establishing a direct threat defense and when a request for additional information after a positive medical report is appropriate. In this case, a job applicant received a conditional job offer contingent on passing a medical examination and background check. The applicant participated in the medical examination, provided a 2007 MRI that showed his back problems, and admitted to a back injury in a questionnaire. The examining doctor cleared him to work. Upon reviewing the doctor's report, BNSF representatives required the applicant to pay for and pass an MRI, which is more sensitive for back problems than an x-ray, before they would honor the offer. However, the applicant could not afford to pay the $2,000 cost for the MRI. BNSF treated the applicant's inability to complete the MRI exam as refusing the job offer and essentially claimed it could not perform an essential functions or direct threat analysis without the MRI. The applicable law states that direct threat analyses should be based on the most current medical knowledge and/or the best available objective evidence. While BNSF may not have received the most current medical knowledge through the requested MRI, the district court deciding the case stated that it could have conducted the analysis on the medical information it did have from the positive medical report.147 The court noted that if the BSNF was so adamant that a current MRI was necessary for a direct threat analysis, it could have paid for the test, especially if they wanted to avoid liability. On this specifi c claim, the court granted summary judgment in favor of the EEOC.

When the Essential Functions Implicate the Safety of Others

In some cases, the essential functions and direct threat analyses "go hand-in-hand."148 In other words, the direct threat analysis is dependent upon what the essential functions of the job are. This underscores the importance of including essential functions in the job description and ensuring that they are functions actually performed by the employees. For example, in a more complex district court case decided in 2016, Fortkamp v. City of Celina, an electric lineman who previously had serious back problems was released to work by his physician and several other specialists.149 However, the city hired an independent medical expert who restricted his ability to lift more than 50 pounds. Consequently, the city refused to reinstate him to his former position. Evidence was introduced showing that supervision had made comments both orally and in writing regarding the impact of his back problems on his ability to work safely in spite of the multiple experts who had cleared him to work. City officials claimed that lineman could not perform some of the essential functions of the job, namely climbing utility poles and lifting heavy weights, and that, as a result, he posed a direct threat to the safety of others. The city's written job description for lineman did not contain lifting heavy weights or climbing utility poles. Several linemen testified that "the City used bucket trucks almost exclusively" and there was a 2004 job analysis of the lineman in the city that showed that lifting 100 pounds was rare and lifting 60 pounds was infrequent.150

The court determined that the evidence supported a finding that those are not essential functions and that the lineman could perform the actual functions. As for the city's direct threat defense, the city's medical expert based his report upon the essential functions of climbing poles and lifting heavy weights, which a jury may likely determine are not essential functions based on the evidence. In this case, then, what a jury would determine the essential functions to be would implicate the employer's direct threat defense. Additionally, the court recognized that it rested upon the city's independent medical expert, which, the court concluded may be suffi cient evidence for a jury to find that it was a "pretext for unlawful discrimination."151 In sum, there was ample evidence for a jury to decide that the city regarded him as disabled and refused to reinstate him for that reason.

RECOMMENDATIONS AND CONCLUSION

While the regarded as disabled prong of the disability definition has been expanded, there are still important protections for management:

1. perceived impairments that are transitory or minor cannot support a regarded as claim;

2. management must at least be aware of an impairment, but that alone is not sufficient to establish a claim;

3. isolated comments generally are not enough alone to establish discrimination;

4. showing concern for an employee having problems and suggesting they visit a doctor is not evidence of regarding an employee as disabled;

5. even if a person is regarded as disabled, the person must still be a qualified individual, that is, demonstrate that he or she can perform the essential functions of the job without an accommodation;

6. ordering medical evaluations consistent with business necessity and when there is significant evidence that the person may not be capable of performing the job is the best protection against regarded as disabled charges; and

7. there must be an adverse employment action taken for a case to be made.

However, discriminatory remarks coupled with adverse actions will cause negative results for management. The best practice is not to act on managerial judgment alone but to require medical evaluations to determine fitness for duty and limit emails and other written references that could be construed as discriminatory. Medical evaluations are not without their pitfalls. This is particularly true when a medical evaluation has been returned that absolves the employee/applicant and the employer chooses to ignore it or the employer demands further evaluation but refuses to pay for it. The best practice is to follow the first evaluation; nevertheless, if an employer has a medical reason to justify a further evaluation, it should pay the cost and take no adverse action until it is completed and results indicate action is warranted.

Should multiple doctors clear an employee for duty, employers should not choose to follow a single negative medical opinion. Importantly, when sending fitness for duty checklists to physicians, as part of a medical evaluation, management must be sure that the list of essential duties are up-to-date and accurate. Related to essential functions, the circuits are in disagreement about who bears the burden to prove that an employee is regarded as disabled when the essential functions of the job implicate the safety of others. This disagreement makes it even more imperative that employers consider all factors in the essential functions test when making the determination and be prepared to show sufficient evidence.

If an employer claims business necessity on direct threat grounds, the employer must ensure that the decision to terminate is based on medical judgment and research, not one based on a hunch or a dislike of an employee. Employers should remember that what is meant by "reasonable medical judgment" is not entirely clear about what it requires an employer to have or do; however, employers certainly cannot rely on intuition alone. Further, systems should be established to ensure that the individual with decision-making authority regarding whether a person can perform essential functions or is a direct threat has actual knowledge of all incidents. If other employees provide later testify to provide information regarding incidents and medical information that would have supported a manager's decision in making a determination, but the manager was not aware of that information at the time he or she made the decision, the courts may not consider it as evidence backing the manager's decision.

Moreover, managers and workers alike should undergo periodic sensitivity training with respect to the use of potentially discriminatory or offensive comments. Even when they are not illegal, they still undermine morale and motivation and have no place at work.

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