New ADA Amendments Change "Regarded As" Disabled Standard
October 10, 2008
The ADA Amendments Act resulted from a compromise between disability rights advocates, and employer groups. In return for the expanded definition of protected disabled persons discussed in last week’s EmployNews, the new law makes several changes to the ADA sought by employers. The most significant of these changes involves the “regarded as” disabled prong of the Act’s disability definition.
Under the ADA, a persons does not need to be disabled to claim the Act’s protections. The Act also covers those persons who are discriminated against due to an erroneous perception by the employer that they are disabled. First, the new law synchs the definition of a “regarded as” disability to the new one for actual disabilities. To be protected, the plaintiff must show that the employer regarded him or her as having an impairment of a major life activity, including a significant bodily function.
Next, the new law makes clear that perceived transitory conditions lasting less than six months will not constitute either disabilities or perceived disabilities. Also, several federal courts have taken the strange position that employers must provide reasonable accommodation to persons who claim that they were regarded as disabled. Employers contend that if the person really was not disabled, why would they need accommodation? The new law makes clear that the accommodation obligation only applies to persons who are actually disabled as defined under the ADA.
While the ADA will still prohibit discrimination against persons regarded as disabled due to myth, fear or stereotype, the scope of these claims will be better defined under the new law.