A Decade after the ADA Was Amended, Courts Are Still Getting It Wrong on Temporary Disabilities

Fourteen years after Congress amended the ADA (through the ADA Amendments Act of 2008 (“ADAAA”)), and eleven years after the EEOC updated its corresponding implementing regulations, courts continue to apply to disability discrimination claims legal standards that have been out of date for over a decade.

Under the ADA, a disability is a condition which “substantially limits” a “major life activity.”  42 U.S.C. § 12102(1).  In 2008, Congress amended the ADA, with the express purpose, in part, of overturning two Supreme Court decisions, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), that created a narrower definition of disability than Congress intended. Specifically, the decisions held that “substantially limits” a “major life activity” meant “prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The decisions also held that in order to be protected under the ADA, a disability had to be permanent or long-term and could not be corrected, for example with medication. In the ADAAA, Congress rejected that interpretation and, instead, mandated that the definition of a disability should be “construed in favor of broad coverage.”  Then, in 2011, the EEOC issued updated regulations reflecting the ADAAA’s changes to the ADA, which included a provision that explicitly rejected any notion that a condition had to be permanent or even long-term in order to be disabling. The updated regulations made clear that “the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ix).

Despite these changes in favor of broadly construing the definition of disability and eliminating a bright line rule about the duration of a disabling condition, federal district courts hearing disability discrimination claims continue to wrongly apply the pre-ADAAA standards.  A recent court of appeals decision, Gage v. Midwestern Univ., No. 22-15227, 2022 WL 9904311 (9th Cir. Oct. 17, 2022), illustrates the problem.  Ian Gage was a Pathology Case Coordinator in the University’s College of Veterinary Medicine who became sick from overexposure to formaldehyde.  He brought a disability discrimination claim against his employer when it denied his requested accommodations, such as PPE, to help prevent him from getting sick when working with formaldehyde.  The district court, relying on cases that predated the ADAAA, dismissed the claim, finding that Mr. Gage could not meet the definition of a person with a disability because his condition was “temporary” and not “permanent.”  Because the ADAAA makes clear, however, that there is no bright line rule requiring that a medical condition be permanent or even last for a specified duration, the Ninth Circuit remanded the case so that the district court below could apply the correct standard. In its decision, the Ninth Circuit cited heavily to a case it had decided earlier, Shields v. Credit One Bank, N.A., 32 F.4th 1218 (9th Cir. 2022), which addressed the exact same problem (a lower court dismissing a disability discrimination claim because the plaintiff’s condition was not permanent).

The Ninth Circuit is not alone in having to remind lower courts that the 2008 amendments to the ADA significantly relaxed the standard to meet the definition of a person with a disability. The Tenth Circuit similarly remanded a case where the lower court, relying on pre-ADAAA standards, failed to evaluate whether the employee’s elbow injury qualified as a disability because it was temporary and not permanent.  Skerce v. Torgeson Elec. Co., 852 F. App’x 357 (10th Cir. 2021).  In a Title II (government services) ADA case, the Second Circuit likewise reversed a dismissal based on the temporary (i.e., non-permanent) nature of the plaintiff’s injury. Hamilton v. Westchester Cnty., 3 F.4th 86, 88 (2d Cir. 2021).  And the Eleventh Circuit recently overturned a lower court decision that relied on pre-2008 cases to find that an employee who was visually impaired (but not blind) did not have a disability because his medical condition did not “substantially” impair a major life activity. Felix v. Key Largo Mgmt. Corp., No. 21-10381, 2021 WL 5037570 (11th Cir.).  The Court noted that the lower court seemed to have “overlooked” the ADAAA.

Although courts may get it wrong the first time around, Congress has provided that employees with temporarily or partially disabling conditions are entitled to reasonable accommodations in the workplace. Employees in need of and legally entitled to accommodations are (oftentimes) not lawyers, and they may not even consider themselves as having a disability. However, if they are dealing with a medical condition that impairs a major bodily function—like their immune, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, or reproductive system—or the routine activities of daily life like seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, and communicating—they are protected by the ADA.

KCNF represents employees who may need accommodation under the ADAAA. If you or someone you know requires legal assistance, contact a KCNF attorney here.