Not ADA Disabled? Not So Fast…
~Employers who regard employees as disabled may have to
provide a reasonable accommodation~
Even if an employee is not technically disabled under the Americans
with Disabilities Act (ADA), an employer may still have to provide that employee
with a reasonable accommodation if the employer regards that employee
as disabled, so say the Third (D'Angelo v. Conagra Foods, Inc.), Tenth
(Kelly v. Metallics West, Inc.) and Eleventh (Williams v. Philadelphia
Housing Authority Police Department) Circuits.
In contrast, the Fifth (Newberry v. E. Tex. State Univ.), Sixth (Workman
v. Frito-Lay, Inc.), Eighth (Weber v. Strippit, Inc.), and Ninth
(Kaplan v. N. Las Vegas) Circuits hold that if an employer regards
an employee as disabled, that employee is only protected from an employer's
adverse employment action based on his perceived disability and not entitled
to a reasonable accommodation.
The most recent court to weigh in the fray was the Eleventh Circuit, in D'Angelo
v. ConAgra Foods, Inc. ConAgra hired the plaintiff in 1998 as a spreader,
which required her to stand at a moving conveyor belt and spread shrimp with
her fingers to prevent them from sticking together. The plaintiff suffered
from vertigo, symptoms of which included dizziness and sickness. Initially,
she did not tell her superiors of her ailment because she did not realize
it would be an issue. Several months later, however, she informed them that
she could not stare at the belt continuously without a break. With medications,
and only working on the belt for short periods, she was able to cope.
In September 2001, her vertigo condition resurfaced. Her doctor then wrote
a note stating that she should avoid working on the conveyor belt because it
could cause her to fall and sustain an injury. The very next day, ConAgra fired
the plaintiff, stating that: 1) there were no other positions that would not
require D'Angelo to look at conveyor belts, and 2) she posed a safety risk
to herself and her co-workers.
The plaintiff then filed suit alleging that ConAgra illegally fired her before
offering her a reasonable accommodation because she was disabled under the
ADA. In the alternative, the plaintiff argued that even if she was not technically
disabled, ConAgra regarded her as disabled and therefore she was entitled to
a reasonable accommodation. The district court and the appeals court easily
determined that the plaintiff did not suffer from an actual impairment under
the ADA, because her vertigo did not substantially limit one or more major
The plaintiff next argued that ConAgra regarded her as disabled, and
therefore the employer had to offer her a reasonable accommodation. Under this
theory, the plaintiff argued that although her vertigo condition did not qualify
as an impairment because it did not substantially limit her in any major life
activity, ConAgra nonetheless regarded her impairment as substantially
limiting the activity of working when it fired her so abruptly.
The Court was persuaded by the plain language of the ADA. The ADA prohibits
employment discrimination against a "qualified individual with a disability." A
disability is defined as either:
||"a physical or mental impairment that substantially
limits one or more of the major life activities of such individual,"
||"a record of such an impairment," or
||"being regarded as having such an impairment."
Under the ADA, barring an undue hardship defense, the employer must provide
a reasonable accommodation to a disabled employee. Since the plain language
of the ADA yielded no statutory basis for distinguishing among individuals
who are disabled, the Court held that regarded-as disabled individuals, just
like the other definitions of a disability, are entitled to reasonable accommodations
under the ADA.
By contrast, the Ninth Circuit, in Kaplan v. City of North Las Vegas,
analyzed this issue very differently. The plaintiff was a peace officer employed
by North Las Vegas. During a training exercise, the plaintiff injured his right
hand and was not able to hold or grasp objects, such as a firing arm. The plaintiff's
doctors misdiagnosed him with rheumatoid arthritis, which his employer thought
was permanent. The employer then admittedly fired him because he could not
perform the essential functions of the job. Shortly thereafter, the plaintiff
The plaintiff argued that he was entitled to a reasonable accommodation when
the city regarded him as having an actual disability. In response, the Court
first reviewed the plain language of the statute, and stated that if the language
is clear, "the sole function of the courts is to enforce it according to its
terms." The Court then found that on its face, the ADA's definition of a qualified
individual with a disability does not differentiate between the three alternative
prongs of the disability definition. Interestingly, the Court then argued that
the absence of a stated distinction is not tantamount to an explicit
instruction by Congress that the regarded as individuals are entitled to a
reasonable accommodation. The Court did not expand on this idea.
The Court believed that a formalistic reading of the ADA would lead to bizarre
results. For example, if regarded-as plaintiffs were entitled to a reasonable
accommodation, they would fare better under the ADA if their employers treated
them as disabled, even though they were not. The Court found this to be a perverse
and troubling result under a statute aimed at decreasing stereotypic assumptions
not truly indicative of the individual ability of people with disabilities.
Should this issue reach the Supreme Court and it adheres to the plain language
of the statute, the Supreme Court will likely hold that the regarded-as definition
should be treated identically to the actual impairment definition of a disability.
Steven E. Kaplan is a senior associate at the law
firm of Farber Rubin, LLC, and concentrates in labor and employment law matters.