Employers are well aware that someone does not have to actually be disabled to be protected under the Americans with Disabilities Act.  Persons with a record of a past disability, or those who are mistakenly regarded as having a disability are also protected.  The ADA Amendments Act of 2008 contained a substantial expansion of the “regarded as” disabled prong of this definition, and these changes are reflected in the EEOC’s proposed ADAAA regulations.

Prior to ADAAA, in order to prove that they were regarded as disabled, plaintiffs had to demonstrate that employers discriminated against them because of a mistaken belief that the employee or applicant had a significant impairment of a major life activity.   ADAAA expanded this definition by defining regarded as disabled as any discrimination based on an impairment.  The significance of the impairment and its relation to a major life activity are no longer required.

The proposed EEOC rules provide an example that explains this difference.  Under pre-ADAAA law, an applicant for a job who had a facial tic could not claim that he was regarded as disabled unless he could demonstrate that the employer thought that the tic was related to some serious underlying medical condition such as Tourette’s Syndrome.  Under the new law, the tic itself is an impairment, and provides the basis for a regarded as disabled claim, even though the employer never suspected that the condition impacted any major life activity.

In other words, employers cannot make employment decisions solely based upon any mental or physical condition, irregularity, or behavior, other than those that are clearly minor and transitory such as a sprained wrist.  Employers will be required to demonstrate that the employment decision was made based on factors other than the applicant’s impairment.  The ADAAA does confirm that employers do not have to accommodate regarded as disabilities, but cannot make employment decisions based on their reaction to these conditions, absent legitimate, non-discriminatory business reasons for the decision.