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9 PJI 2.1 | ADA | DISABILITY

Under the ADA, the term “disability” [means]²⁴ [includes]²⁵ a physical or mental impairment that “substantially limits” a “major life activity.”

[[Option One:]

I will now define some of these terms in more detail.]²⁶

[[Option Two:]

Thus, a person has a disability if they actually have a physical or mental impairment that substantially limits a major life activity. But a person also has a disability if they have a “record of” disability, or if they are “regarded as” having a disability. I am about to tell you more about [each of] [both of] these ways of showing a disability.]²⁷ I remind you to consider the specific definitions I give you. You are not to use your own opinions as to what these terms mean.

[“Physical/Mental Impairment”]

[The term “physical impairment” means any condition that prevents the body from functioning normally. The term “mental impairment” means any condition that prevents the mind from functioning normally. [Note that this simplified definition may be under-inclusive compared with the definition supplied by the relevant regulation; see the Comment for suggestions on tailoring this paragraph in a given case.]]

[Major Life Activities]

Under the ADA, the term “disability” includes a [physical/mental] impairment that substantially limits a major life activity. [Major life activities include the operation of major bodily functions.]²⁸ I instruct you that [describe activity] is a major life activity within the meaning of the ADA.]

[“Substantially Limiting”]

As I mentioned, to be a disability, a physical or mental impairment must substantially limit [plaintiff’s] ability to perform a major life activity as compared to most people in the general population.

[[For use when there is no jury question as to whether the impairment substantially limits a major life activity:] I instruct you that [plaintiff’s] [name of condition – e.g., cancer] is a disability because it limits the major life activity of [name of major life activity – e.g., normal cell growth].]

[[For use when there is a jury question as to whether the impairment substantially limits a major life activity:] So long as an impairment substantially limits one major life activity of [plaintiff], it is a disability even if it does not substantially limit any other of [plaintiff’s] major life activities. An impairment need not prevent, or significantly or severely restrict, [plaintiff] from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment is a disability; you should compare [plaintiff’s] performance of the major life activity to the performance of the same major life activity by most people in the general population.

[You should make this comparison without regard to the ameliorative effects of mitigating measures such as [list relevant mitigating measures; see Comment for discussion]. [But you must consider the ameliorative effects of ordinary eyeglasses or contact lenses. In other words, if [plaintiff’s] visual impairment does not substantially limit any major life activity once you consider [plaintiff’s] use of ordinary eyeglasses or contact lenses, then [plaintiff’s] visual impairment is not a disability.]]

[If an impairment is episodic or in remission, it can still be a disability; the question is whether that impairment would substantially limit a major life activity of [plaintiff] when the impairment is active.]

In determining whether [plaintiff] is substantially limited in a major life activity, you may find it helpful to consider, as compared to most people in the general population, the condition under which [plaintiff] performs the major life activity; the manner in which [plaintiff] performs the major life activity; and/or the duration of time it takes [plaintiff] to perform the major life activity, or for which [plaintiff] can perform the major life activity. In thinking about these factors, you might consider, among other things [list any of the following that are warranted by the evidence:]

• the difficulty, effort, or time required to perform a major life activity;

• pain experienced when performing a major life activity;

• the length of time a major life activity can be performed;

• the way an impairment affects the operation of a major bodily function

• negative effects of measures that [plaintiff] takes to mitigate the impairment – such as side effects of medication or burdens associated with following a particular treatment regimen.²⁹

[You should focus on whether the impairment substantially limits a major life activity, rather than on what outcomes [plaintiff] can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.]

[For use when there is a jury question on whether plaintiff has a record of disability:

The ADA definition of “disability” includes not only those persons who actually have a disability, but also those who have a “record of” disability. [Plaintiff] has a “record of” disability if [he/she] [has a history of] [has been misclassified as having] [has a history of, or has been misclassified as having,] a “physical or mental impairment” that “substantially limits” a major life activity, as I have defined those terms for you. [This means that if [plaintiff] had a physical or mental impairment that substantially limited a major life activity [but has now recovered] [but that condition is in remission], [he/she] still fits within the statutory definition because [he/she] has a record of disability.] [This means that if [plaintiff] was misclassified as having a physical or mental impairment that substantially limits a major life activity, [he/she] still fits within the statutory definition even if [he/she] did not actually have such an impairment.]]

[[For use when the claim is not one for reasonable accommodation and when there is a jury question on whether plaintiff is “regarded as” having a disability. Note that “regarded as” disability is not a basis for a reasonable-accommodation claim:]

The ADA’s definition of “disability” includes not only those persons who actually have a disability, but also those who are “regarded as” having a disability by their employer.

To prove that [he/she] was regarded as having a disability, [plaintiff] must prove³⁰ that [defendant] [describe prohibited conduct] [plaintiff] because [defendant] believed [plaintiff] had a physical or mental impairment. [Plaintiff] need not prove that the impairment limited a major life activity or that [defendant] thought the impairment limited a major life activity.]

[For use when there is an issue in a “regarded as” claim that the impairment was transitory and minor:]

As I mentioned, [plaintiff] claims that [defendant] regarded him/her as having a disability. [Plaintiff] must prove that the impairment [plaintiff] was regarded as having [is not [use this alternative in the case of an actual impairment]] [would not be [use this alternative in the case of a perceived impairment]] “transitory and minor.” An impairment is transitory if it [lasts] [would be expected to last] six months or less. In deciding whether an impairment is “minor,” you should look to factors such as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary — as well as the nature and scope of any post-operative care.]

Concluding Instruction:

Please keep in mind that the definition of “disability” is to be construed in favor of broad coverage of individuals. The primary question for you to decide is whether [defendant] has complied with its obligations under the ADA.
COMMENT This instruction is derived from 42 U.S.C. § 12102; id. § 12201; Section 2 of the ADA Amendments Act of 2008; 29 C.F.R. § 1630.2 (2019); id. § 1630.15; Seventh Circuit Pattern Jury Instructions (Civil Cases) § 4.04 (rev. 2017); and Eleventh Circuit Pattern Jury Instructions (Civil Cases) §§ 4.11-4.12 (rev. 2019).

The ADA’s definition of “disability” (codified at 42 U.S.C. § 12102(1)) is complex for a number of reasons: 1) there are three separate types of disability: “actual”, “regarded as”, and “record of” disability; 2) “regarded as” disability is unavailable as the basis for a reasonable-accommodation claim, 3) the basic definition of “disability” encompasses three separate subdefinitions, for “impairment”, “substantially limited” and “major life activity”; 4) perhaps most important, the technical definition of “disability” is likely to be different from the term as it is used in the vernacular by most jurors. In most cases, however, the instruction can be streamlined because not every aspect of the definition will be disputed in the case. For example, ordinarily there will be no jury question on whether what the plaintiff suffers from is an impairment.

ADA Amendments Act of 2008

The ADA Amendments Act of 2008 (Pub. L. No. 110-325, 122 Stat. 3553) (the “ADAAA”) made a number of changes to the ADA’s definition of disability, and statutorily overruled some Supreme Court cases that Congress determined had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” The basic thrust of the ADAAA is to make it easier for plaintiffs to prove that they have a “disability” within the meaning of the ADA. For example, Section 2(b)(5) of the ADAAA provides that “it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations,” and that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Along the same lines, Section 4(a) of the ADAAA provides that the definition of “disability” under the ADA “shall be construed in favor of broad coverage of individuals.” The concluding text of the Instruction implements these general provisions of the ADAAA. In addition, the ADAAA makes specific changes to the statutory definition of “disability” that are discussed below in this Comment. As discussed below, one such change narrowed the definition of “disability” for a particular type of claim. See 42 U.S.C. § 12201(h) (providing that “regarded as” disability cannot provide a basis for a reasonable-accommodation claim). The ADAAA also authorized the relevant regulators to promulgate regulations “implementing the definitions of” key terms, including “disability.”³¹

“Impairment”

Instruction 9.2.1’s definitions of “mental impairment” and “physical impairment” are streamlined definitions that parallel those in some other sets of model instructions. See Seventh Circuit Pattern Jury Instructions (Civil Cases) § 4.04 nn. 3 & 8 (rev. 2017) (“The term ‘physical impairment’ means any conditions that prevents the body from functioning normally. The term ‘mental impairment’ means any condition that prevents the mind from functioning normally.”); Eleventh Circuit Pattern Jury Instructions (Civil Cases) §§ 4.11-4.12 (rev. 2019) (“A ‘physical impairment’ is a condition that prevents the body from functioning normally. A ‘mental impairment’ is a condition that prevents the mind from functioning normally.”). There is no statutory definition of those terms that applies to the ADA. Applicable regulations, however, provide a different definition. Under those regulations:

Physical or mental impairment means —

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h) (2019).

The instruction’s definition can be modified as appropriate in a particular case. In a case where the plaintiff’s physical or mental impairment is not in dispute, the instruction might say, for instance, “The parties agree that [plaintiff’s] [describe condition] is a physical impairment.” In a case where the classification of a particular condition as a physical or mental impairment is established by the court as a matter of law, the instruction might say, for instance, “The term ‘physical impairment’ includes neurological disorders such as Parkinson’s disease,” or “I instruct you that [plaintiff’s] Parkinson’s disease is a physical impairment.”

In Bragdon v. Abbott, 524 U.S. 624, 632-33 (1998), the Court determined that an employee with HIV had a physical “impairment” within the meaning of the ADA. In reaching this determination, the Court relied upon the then-applicable version of the regulation quoted above. See id. at 632 (quoting 45 CFR § 84.3(j)(2)(i) (1997)).

Applying the pre-ADAAA version of the ADA, the Court of Appeals held that “side effects from medical treatment may themselves constitute an impairment under the ADA.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 n.2, 187 (3d Cir. 2010). But the court ruled that in order for such side effects to constitute an impairment, “it is not enough to show just that the potentially disabling medication or course of treatment was prescribed or recommended by a licensed medical professional. Instead... the medication or course of treatment must be required in the ‘prudent judgment of the medical profession,’ and there must not be an available alternative that is equally efficacious that lacks similarly disabling side effects.” Id. (quoting Christian v. St. Anthony Med. Ctr., 117 F.3d 1051, 1052 (7th Cir. 1997)). The current regulations (which postdate Sulima and implement the ADAAA) take a somewhat different approach; they appear to consider the side effects of treatment as a factor that can affect whether the condition that is being treated substantially limits a major life activity. See 29 C.F.R. § 1630.2(j)(4)(ii) (2019) (“[T]he non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.”). The Committee has not determined whether the regulation alters or supersedes the test adopted in Sulima for cases where the substantial limitation arises from treatment side effects.

“Major Life Activity”

As amended by the ADAAA, the statute explains the term “major life activity” as follows:

(2) Major life activities

(A) In general

For purposes of paragraph (1) [i.e., the definition of “disability”], major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

42 U.S.C. § 12102(2).³²

As of 2020, the implementing regulation largely echoes these illustrative lists, and adds a few other examples to each list (“sitting, reaching, [and] interacting with others,” and “functions of the... special sense organs and skin;... and... genitourinary... cardiovascular... hemic, lymphatic, [and] musculoskeletal... functions”). See 29 C.F.R. § 1630.2(i)(1) (2019). The regulation also specifies that “[t]he operation of a major bodily function includes the operation of an individual organ within a body system.” Id.

Any of the activities or bodily functions in the statutory list (or, presumably, the regulatory list) quoted above constitutes a major life activity as a matter of law. The lists are explicitly non-exhaustive; in a case where the activity or bodily function is not listed, the Committee expects that the question whether the activity or function constitutes a major life activity will likely be decided by the court as a matter of statutory interpretation.³³

The approach to that interpretive question will be guided both by the statute and by the regulation. As noted above, the ADAAA sought to overturn a number of judicial interpretations of the ADA that Congress regarded as unduly narrow. One such case was Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), in which the Supreme Court had ruled that “‘[m]ajor life activities’... refers to those activities that are of central importance to daily life.” The ADAAA specifically mentioned that aspect of Toyota with disapproval – listing as one of the Act’s purposes
to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”.... ADAAA § 2(b)(4), 122 Stat. at 3554. As noted above, the ADAAA added a definition of “major life activities” and this definition eschews any use of the term “central importance.” The implementing regulation, after listing examples of major life activities, continues: “[i]n determining other examples of major life activities, the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability. ADAAA section 2(b)(4) (Findings and Purposes). Whether an activity is a ‘major life activity’ is not determined by reference to whether it is of ‘central importance to daily life.’” 29 C.F.R. § 1630.2(i)(2) (2019).

Work as a Major Life Activity

Prior to the ADAAA’s enactment, the Supreme Court had expressed unease with the concept of working as a major life activity under the ADA. In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Court noted that “there may be some conceptual difficulty in defining ‘major life activities’ to include work, for it seems to argue in a circle to say that if one is excluded, for instance, by reason of an impairment, from working with others then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap." Sutton, 527 U.S. at 492 (internal quotation marks and alterations omitted). The Sutton Court “[a]ssum[ed] without deciding that working [wa]s a major life activity.” Id. It declared, however, that “[w]hen the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs” rather than just “one type of job, a specialized job, or a particular job of choice.” Id. at 491.

The ADAAA specifically lists “working” as a major life activity, and imposes no special showing on “working” as distinct from other life activities. See ADAAA § 4(a), codified in relevant part at 42 U.S.C. § 12102(2)(A). Nothing in the statute expressly requires the plaintiff to prove an inability to perform a broad range of jobs. Moreover, one of the major purposes of the ADAAA was to reject the “holdings” of Sutton on the ground that the case “narrowed the broad scope of protection intended to be afforded by the ADA.” ADAAA § 2(a)(4). Accordingly, the Instruction contains no special provision or limitation on working as a major life activity.

However, it should be noted that the EEOC’s interpretive guidance endorses the requirement that a person seeking to rely on work as the major life activity must show that his or her impairment “substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities,” and states that “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.” U.S. Equal Emp. Opportunity Comm’n, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, App. 1630.2 (2019) (“EEOC Interpretive Guidance”). The interpretive guidance also suggests that few people will need to rely on the idea of work as a major life activity, because “impairments that substantially limit a person's ability to work usually substantially limit one or more other major life activities.” Id.

“Substantially Limits”

The statute, as amended by the ADAAA, both provides some specific directives on whether an impairment “substantially limits” a major life activity and also sets an overall interpretive approach. The implementing regulations provide additional guidance.

As to specific directives, the statute provides in part:

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E)

(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures....

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

42 U.S.C. § 12102(4).³⁴

The statute’s overall interpretive approach implements the ADAAA’s goal (noted above) of reversing a number of judicial interpretations that Congress regarded as overly restrictive. 42 U.S.C. § 12102(4)(B) directs that “[t]he term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.” The ADAAA’s findings state in part:

(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;

(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;

(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA;

(6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities;

(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress; and

(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.

ADAAA § 2(a). The ADAAA’s purposes, in turn, include the following:

...(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;

...

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”;

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis; and

(6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.

Id. § 2(b).

Accordingly, the text of the Instruction does not include any restrictions on the term “substantially limits” such as “severe” or “significant”; nor does it require that the impairment be permanent or long-term.³⁵ The conclusion to the Instruction provides, consistently with Congressional intent, that the statutory definition of “disability” is to be construed broadly.³⁶

In some cases, the substantial-limitation issue may not present a jury question. Cf., e.g., 29 C.F.R. § 1630.2(j)(3)(ii)-(iii) (2019) (discussing application of the substantial-limitation test to various scenarios). The Instruction includes a bracketed alternative for use in cases where substantial limitation is conceded or established as a matter of law. For cases where the substantial-limitation issue instead presents a jury question, the Instruction draws heavily upon the implementing regulation’s language in outlining matters for the jury to consider. See id. § 1630.2(j)(1), (4)-(5).

Record of Disability

As noted above, the statute’s definition of “disability” includes instances when there is “a record of” an individual’s having “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1). The applicable regulation explains that “[a]n individual has a record of a disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k)(1) (2019). The regulation stresses that the “record of” provision “shall be construed broadly,” and it directs that the substantial-limitation analysis should follow the same principles as those that apply when a claim of disability relies on the first statutory alternative (i.e., the substantial-limitation alternative discussed in the preceding paragraphs of this Comment). Id. § 1630.2(k)(2). The regulation also notes that, under the statute, reasonable-accommodation claims are available for “record of” disability claims.³⁷

The EEOC’s interpretive guidance notes that the same set of facts might ground both an actual-disability claim and a record-of disability claim:
[A]n individual with an impairment that is episodic or in remission can be protected under the first prong if the impairment would be substantially limiting when active. See 42 U.S.C. 12102(4)(D); § 1630.2(j)(1)(vii). Thus, an individual who has cancer that is currently in remission is an individual with a disability under the “actual disability” prong because he has an impairment that would substantially limit normal cell growth when active. He is also covered by the “record of” prong based on his history of having had an impairment that substantially limited normal cell growth. 29 C.F.R. pt. 1630, App. 1630.2(k) (2019).

For a discussion of “record of” disability claims under the pre-ADAAA version of the statute, see Eshelman v. Agere Systems, Inc., 554 F.3d 426, 436-39 (3d Cir. 2009).³⁸

“Regarded as” Having a Disability (for Purposes of Claims other than Reasonable Accommodation)

As noted above, the statute’s definition of “disability” includes instances when an individual is “regarded as having” “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1). The statute’s focus is on whether prohibited action was taken because the individual was regarded as having the impairment, not on whether the individual actually had that impairment or on whether that impairment actually does substantially limit a major life activity: “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. § 12102(3)(A). In that sense, “regarded as” disability can be easier to establish than the other two prongs of the disability definition.

But Congress imposed two limits on “regarded as” disability. First, “regarded as” disability cannot be founded on “impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Id. § 12102(3)(B). Second, as discussed below, “regarded as” disability cannot provide a basis for a reasonable-accommodation claim. See id. § 12201(h).

The statute does not explicitly couch the “transitory and minor” exception as a defense. But the implementing regulations do so:
It may be a defense to a charge of discrimination by an individual claiming coverage under the “regarded as” prong of the definition of disability that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) “transitory and minor.” To establish this defense, a covered entity must demonstrate that the impairment is both “transitory” and “minor.” Whether the impairment at issue is or would be “transitory and minor” is to be determined objectively. A covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a While the statute does not explicitly couch the “transitory and minor” exception as a defense, the implementing regulations do so, 29 C.F.R. § 1630.15(f) (2019), as did earlier circuit precedent. Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014) (noting that “[t]he ADA regulations list being ‘transitory and minor’ as a defense to an ADA claim,” and treating the transitory-and-minor issue as an “affirmative defense[]”).

Nevertheless, Eshleman v. Patrick Indus., 961 F.3d 242 (3d Cir. 2020), addressed both the question of whether the issue is an affirmative defense and the factors to be examined in determining whether a given condition is minor, although it did so in the context of a motion to dismiss for failure to state a claim. As to the former, the Court wrote that "affirmative defense" was an “imperfect shorthand, since the statutory text demands a non-transitory or non-minor perceived impairment for regarded-as claims. Put differently, a regarded-as plaintiff alleging a transitory and minor impairment has failed to state a legally sufficient claim, even if the employer does not include a transitory and minor defense in its Answer.” 961 F.3d at 246 n.25. Presumably, then, plaintiff bears the burden of persuasion that the impairment is either not transitory or not minor to establish a regarded as disability.

As to the meaning of minor, the Court did not provide a definition but did list factors that should be considered in making the determination. Eshleman, 961 F.3d at 249 (“Here, the District Court should have considered such factors as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary — as well as the nature and scope of any post-operative care.”). Since Eshleman was decided on the pleadings, the Court did not decide whether plaintiff’s condition (lung surgery to remove a nodule and test it for cancer), was actually within the statutory limitation but only that he had plausibly plead it was not.

29 C.F.R. § 1630.15(f) (2019).³⁹ By saying that the defendant “must demonstrate” the transitory and minor nature of the impairment, the regulation appears to assign the burden of proof on this issue to the defendant. Because Congress granted the EEOC (among others) the authority to issue regulations implementing Section 12102’s definitions of “disability,” see 42 U.S.C. § 12205a, Section 1630.15(f) is entitled to deference so long as Section 12102(3)(B) is ambiguous on the question of who has the burden of proof (on the “transitory and minor” issue) and so long as the regulation’s assignment of that burden to the defendant is a reasonable interpretation of the statute. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014) (noting that “[t]he ADA regulations list being ‘transitory and minor’ as a defense to an ADA claim,” and treating the transitory-and-minor issue as an “affirmative defense[]”). Instruction 9.2.1 presents the “transitory and minor” exception as a defense on which the defendant has the burden of proof.

Reasonable Accommodation Requirement Inapplicable to “Regarded as” Disability

As noted above, in contexts other than reasonable-accommodation claims, the ADA’s definition of “disability” includes “being regarded as having” a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(C). Prior to 2009, this “regarded as” part of the definition of disability also applied to reasonable-accommodation claims. See Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 776 (3d Cir. 2004). But in the ADAAA, Congress provided that “regarded as” disability cannot provide a basis for a reasonable-accommodation claim. See 42 U.S.C. § 12201(h); see also Robinson v. First State Cmty. Action Agency, 920 F.3d 182, 186 (3d Cir. 2019). Accordingly, Instruction 9.2.1’s definition of disability has been revised to reflect that the “regarded as” option is unavailable for reasonable-accommodation claims.

Pregnancy-related disability

The Supreme Court has noted in dictum the possibility that pregnancy-related impairments come within the ambit of the ADA. See Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1348 (2015). Enforcement guidance provided by the EEOC states that
conditions, such as pregnancy, that are not the result of a physiological disorder are... not impairments [for purposes of the definition of “disability”]. However, a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definition. Alternatively, a pregnancy-related impairment may constitute a “record of” a substantially limiting impairment,” or may be covered under the “regarded as” prong if it is the basis for a prohibited employment action and is not “transitory and minor.” 29 C.F.R. § Pt. 1630, App (2019).

As of spring 2020, the Court of Appeals had not addressed (in a precedential opinion) the status of pregnancy-related impairments under the ADA as amended in 2008.
(Last Updated July 2019)

Footnotes

²⁴ Use this alternative with Option One.
²⁵ Use this alternative with Option Two.
²⁶ Use Option One if the plaintiff is relying only on the “actual disability” prong of the definition of disability.
²⁷ Use Option Two, adjusted as necessary, if the plaintiff is relying on the “record of” and/or “regarded as” prongs in addition to or instead of the “actual” disability prong.
²⁸ This bracketed sentence should be omitted if the major life activity at issue is not a major bodily function. See the Comment for discussion of the statutory definition of “major life activities.”
²⁹ See the Comment for discussion of this factor and possible tension between Third Circuit caselaw and the applicable regulation.
³⁰ See Comment for a discussion of the burden of proof as to “transitory and minor.”
³¹ 42 U.S.C. § 12205a provides: “The authority to issue regulations granted to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of Transportation under this chapter includes the authority to issue regulations implementing the definitions of disability in section 12102 of this title (including rules of construction) and the definitions in section 12103 of this title, consistent with the ADA Amendments Act of 2008.” By enacting Section 12205a, Congress rendered moot the doubts the Supreme Court had previously expressed concerning the authoritativeness of such regulations. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 479-80 (1999) (stating that the EEOC had not been granted authority to promulgate its regulations interpreting the term “disability” and that the Court had “no occasion to consider what deference [those regulations] are due, if any”).
³² As these lists illustrate, an activity or bodily function need not be employment-related to count as a “major life activity.” Cf. Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (interpreting pre-ADAAA version of the ADA to encompass reproduction as a major life activity and observing that “[n]othing in the [then-applicable statutory] definition suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word ‘major’”).
³³ Prior to the ADAAA’s enactment, courts had ruled as a matter of law on whether a number of activities counted as major life activities. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 639 (1998) (holding that “reproduction is a major life activity for the purposes of the ADA”); Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 569 (3d Cir. 2002) (same, as to “concentrating and remembering”); Taylor v. Phoenixville School Dist., 184 F.3d 296, 307 (3d Cir. 1999) (same, as to “thinking”). Though the ADAAA alters the criteria for determining what counts as a major life activity, that legislation does not seem to make the task any less suitable for the court. Accordingly, the Instruction treats this as a question of law for the court.
³⁴ The statute lists, as examples of mitigating measures that are not to be considered, the following:

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

42 U.S.C. § 12102(4)(E)(i). To explain the difference between “low-vision devices” (which must not be considered when assessing substantial limitation) and “ordinary eyeglasses or contact lenses” (which must be considered when assessing substantial limitation) the statute provides:

(I) the term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

Id. § 12102(4)(E)(iii).
³⁵ Prior to the enactment of the ADAAA, the Supreme Court had ruled that impairments had to be long-term in order to count as disabilities under the ADA. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002) (“We... hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term.”). As noted in the text, the ADAAA’s stated goals included overturning Toyota’s “inappropriately high level of limitation necessary to obtain coverage under the ADA”; and the implementing regulations make clear that “[t]he 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) (2019). On the other hand, the EEOC’s interpretive guidance states that an impairment’s duration is a factor that can be considered when determining whether the impairment substantially limits a major life activity. See EEOC Interpretive Guidance, 29 C.F.R. pt. 1630, App. 1630.2(j)(1) (2019).
³⁶ In a case involving events that occurred prior to the enactment of the ADAAA, the Court of Appeals held that inability to drive at night is relevant to the question whether monocular vision substantially limits the major life activity of seeing. See Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010).
³⁷ The regulation explains: “An individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to the past disability. For example, an employee with an impairment that previously limited, but no longer substantially limits, a major life activity may need leave or a schedule change to permit him or her to attend follow-up or ‘monitoring’ appointments with a health care provider.” 29 C.F.R. § 1630.2(k)(3) (2019).
³⁸ As discussed elsewhere in this Comment, the ADAAA made significant changes, a number of which affect the treatment of “record of” disability claims. See, e.g., 42 U.S.C. § 12102(4)(A) (setting rule of construction that “[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter”). Care should be taken, in applying Eshelman’s teaching on “record of” disability claims, to assess the extent to which given aspects of the court’s reasoning survive the changes wrought by the ADAAA.
³⁹ On the objective nature of the transitory-and-minor inquiry, see, e.g., Budhun v. Reading Hospital & Medical Center, 765 F.3d 245, 260 (3d Cir. 2014) (broken fifth metacarpal, which “resulted in the ‘lost use of three fingers for approximately two months,’” was “objectively transitory and minor”).