Ninth Circuit Reminds Us of the Breadth of the “Regarded As ” Prong of the ADA

By Lehr Middlebrooks Vreeland & Thompson, P.C.

September 27, 2018

To bring a claim of disability discrimination under the ADA, a plaintiff must establish that he or she is entitled to coverage under the act because he or she is actually disabled, is regarded as disabled, or has a record of being disabled. As most of our readers know, the ADA Amendments Act of 2008 (ADAAA) greatly expanded the definition of disability under the ADA. Most of the caselaw since the ADAAA took effect has focused on this broadened definition in the context of individuals claiming they had an actual disability. However, the ADAAA also made some modifications to the ADA’s regarded as eligibility test. Under the pre-ADAAA ADA, a plaintiff needed to prove that the employer subjectively believed that the plaintiff was substantially limited in performing a major life activity (i.e., an employer needed to believe the employee was actually disabled). However, the ADAAA eliminated the requirement that the employer subjectively believe that the employee is substantially limited in a major life activity. Rather, the plaintiff need only prove that he or she was subjected to an adverse action due to an actual or perceived impairment, whether or not the perceived impairment was limiting enough to constitute a disability. An employer may affirmatively show that the actual or perceived impairment was transitory (lasting less than six months) and minor as an affirmative defense, but, otherwise the plaintiff is not required to prove the employer regarded his impairment as substantially limiting.

In the case of Nunies v. HIE Holdings, Inc., Nunies was a delivery driver for HIE Holdings, delivering five-gallon water bottles. (9th Cir. Sept. 17, 2018). According to Nunies, he requested to transfer to a part-time, less physically demanding warehouse job due to a shoulder injury. The transfer was set to go through, but, when HIE learned that Nunies wanted the transfer due to an injury, it rejected the request and told him it no longer had funding for his position, forcing him to resign. The day before Nunies was terminated, HIE ran an ad for the part-time warehouse job Nunies had wanted. The trial court concluded that Nunies was neither regarded as nor actually disabled, because HIE had not considered his shoulder injury to be serious and because Nunies had  largely been able to work through the shoulder injury: he had a lifting restriction of 25  pounds and experienced shooting pain when lifting even less than that amount above his shoulder.  The Ninth Circuit Court of Appeals (which covers Alaska,  Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) found that the district court had erred in putting the burden on Nunies to prove that HIE  regarded him as having an impairment that was not transitory or minor and also in deciding that Nunies was not actually significantly impaired: “In our view, a stabbing pain when raising one’s arm above chest height substantially limits the major life  activity of lifting and possibly working.”