IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _____________________ No. 02-2361 _____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. DAIMLERCHRYSLER CORP., Defendant-Appellee. ______________________________________________________ Appeal from the United States District Court for the Eastern District of Michigan ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _____________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 TABLE CONTENTS TITLE VII FACT SHEET iii TABLE OF AUTHORITIES iv STATEMENT OF JURISDICTION 1 STATEMENT IN SUPPORT OF ORAL ARGUMENT 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings 3 2. Statement of Facts 3 3. The District Court’s Decisions a. Order Granting Summary Judgment 8 b. Order Denying Reconsideration 10 STANDARD OF REVIEW 11 SUMMARY OF ARGUMENT 12 ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THOMAS DIEM WAS COVERED BY THE ADA BECAUSE DAIMLER REGARDED HIM AS HAVING AN IMPAIRMENT THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY. 14 A. The Evidence Would Support A Finding That Daimler Mistakenly Believed That Diem Was Substantially Limited In The Major Life Activities of Moving And/Or Working. 14 B. Diem Was Covered By The ADA Whether Or Not Daimler’s Misperception Was Based On Myths, Fears and Stereotypes. 21 C. In Any Event, The Evidence Would Support A Finding That Dr. Ray’s Evaluation Of Diem Was Tainted By Presumptions and Generalizations About Disabilities. 29 II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT DIEM IS COVERED BY THE ADA BECAUSE HE HAS A RECORD OF A SUBSTANTIALLY LIMITING IMPAIRMENT. 33 CONCLUSION 41 CERTIFICATE OF COMPLIANCE 42 CERTIFICATE OF SERVICE ADDENDUM Designation of Appendix Contents UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT FACT SHEET FOR TITLE VII APPEALS 6th Cir. R. 20 requires that counsel for the appellant and for the appellee file a one-page fact sheet in all Title VII appeals. The fact sheet should be the same size as the pages in the brief. It should be placed in the briefs of the parties immediately following the table of contents and preceding the statement of issues presented for review. Use this form, 6CA-56. Case name and number EEOC v. DaimlerChrysler Corp., No. 02-2361 (6th Cir.) Person reporting Barbara L. Sloan 1. Date EEOC complaint was filed August 8, 1996 2. Was any compromise reached by the state civil rights agency? no by EEOC? no 3. Date EEOC right to sue letter issued N/A 4. Date present action filed June 6, 2001 5. Have all filings been timely? yes If not, are any “tolling” arguments available? N/A If so, describe: 6. Nature of claims of discrimination and dates of occurrence: Refusal to hire July 1996 7. Disposition below: Grant of summary judgment to defendant in EEOC’s enforcement action alleging that defendant refused to hire the charging party because of a disability 6CA-56 3/90 TABLE OF AUTHORITIES CASES Auer v. Robbins, 519 U.S. 452 (1997) 38 Cline v. General Dynamics Land System, 296 F.3d 466 (6th Cir. 2002) 25 Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102 (1980) 21 Davidson v. Midelfort Clinic, 133 F.3d 499 (7th Cir. 1998) 34, 37-38 Duda v. Board of Educ. of Franklin Park Public Sch. Dist.No. 84, 133 F.3d 1054 (7th Cir. 1998) 37 Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998) 10, 26 Dupre v. Charter Behavioral Health System, 242 F.3d 610 (5th Cir. 2001) 38 EEOC v. Kinney Shoe Co., 104 F.3d 683 (4th Cir. 1997) 40 EEOC v. R.J. Gallagher, 181 F.3d 645 (5th Cir. 1999) 39 Henderson v. Ardco, 247 F.3d 645 (6th Cir. 2001) 16 Hilburn v. Murata Electronics, 181 F.3d 1220 (11th Cir. 1999) 38 Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) 11-12, 17, 20, 24-26, 28, 31-33 Hoskins v. Oakland County Sheriff’s Department, 227 F.3d 719 (6th Cir. 2000) 16 Johnson v. American Chamber of Commerce Publishing, 108 F.3d 818 (7th Cir. 1997) 22 Keith v. Ashland, 2000 WL 178389 (6th Cir. Feb. 8, 2000) 38 MX Group v. City of Covington, 293 F.3d 326 (6th Cir. 2002) 15, 36 McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001) 33 Murphy v. UPS, 527 U.S. 516 (1999) 18, 19-20 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) 25 Pace v. Paris Maintenance Co., 107 F. Supp. 2d 251 (S.D.N.Y. 2000), aff’d, 2001 WL 327102 (2d Cir. Apr. 3, 2001) 35, 36 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) 12 Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) 15-16 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) 33-34, 37 Sullivan v. River Valley School District, 197 F.3d 804 (6th Cir. 1999) 21-22, 26 Taylor v. Nimock’s Oil Co., 214 F.3d 957 (8th Cir. 2000) 38 Taylor v. Pathmark Stores, 177 F.3d 180 (3d Cir. 1999) 10-11, 26-28, 39-40 Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999) 28-29 United Airlines v. Sutton, 527 U.S. 471 (1999) 16, 24 United States v. Turkette, 452 U.S. 576 (1981) 28 STATUTES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 28 U.S.C. § 1345 1 Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. passim 42 U.S.C. § 12102(2)(A) 15 42 U.S.C. § 12102(2)(B) passim 42 U.S.C. § 12102(2)(C) passim 42 U.S.C. § 12111(8) 21 42 U.S.C. § 12112(a) 14, 21 42 U.S.C. § 12117 1 REGULATIONS and RELATED MATERIALS 29 C.F.R. § 1630.2(j) 15 29 C.F.R. § 1630.2(k) 33, 36 29 C.F.R. § 1630.14 & App. 28 29 C.F.R. 1630 App., § 1630.2(k) 35, 36, 38-39 29 C.F.R. 1630 App., § 1630.2(l) 16 OTHER AUTHORITY H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess., reprinted at 1991 U.S.C.C.A.N. 303, 315 24, 39 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _____________________ No. 02-2361 _____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. DAIMLERCHRYSLER CORP., Defendant-Appellee. _____________________________________________________ Appeal from the United States District Court for the Eastern District of Michigan _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _____________________________________________________ STATEMENT OF JURISDICTION This case was brought under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 12117. The suit was dismissed on September 12, 2002. Docket entry number (“R.”) 30, Appendix (“Apx”) 4. The Equal Employment Opportunity Commission (“Commission” or “EEOC”) filed a timely notice of appeal on November 8, 2002. R.31, Apx4. This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT IN SUPPORT OF ORAL ARGUMENT The Commission believes that oral argument would be helpful to the Court. The Commission is appealing from an order granting summary judgment in an ADA enforcement action challenging defendant’s refusal to hire an individual because of a disability. The district court held that the ADA’s protections do not extend to adverse employment decisions based on mistaken medical assessments of an applicant’s physical condition unless the mistake is based on myths, fears or stereotypes about the particular disability; the court then found that no such mistake occurred here. The ADA itself does not limit coverage for perceived disabilities to perceptions based on myths, fears, and stereotypes. The court’s ruling, if upheld, would sharply restrict the ADA’s protections for persons mistakenly believed to be substantially limited in a major life activity. STATEMENT OF THE ISSUES 1. Whether there is sufficient evidence to support a finding that Thomas Diem is covered by the ADA because DaimlerChrysler regarded him as being substantially limited in the major life activity of moving or working. 2. Whether the ADA protects persons who are misperceived as being substantially limited in a major life activity even where the mistaken perception is not based on myths, fears or stereotypes. 3. Whether there is sufficient evidence to support a finding that Thomas Diem is covered by the ADA because he has a record of a substantially limiting impairment. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from the dismissal of an EEOC enforcement action alleging that defendant violated Title I of the ADA by refusing to hire Thomas Diem as a jitney repair mechanic because of a disability. The Commission filed suit on June 6, 2001, in the Eastern District of Michigan. R.1, Apx2. On March 15, 2002, defendant moved for summary judgment. R.14, Apx2. The Commission opposed the motion. R.18-19, Apx3. On May 20, 2002, the district court entered an order, granting defendant’s motion and dismissing the Commission’s suit. R.25, Apx3. The Commission then moved for reconsideration (R.27); on order of the court, defendant filed a response to the motion. R.29, Apx3. The court denied the motion on September 12, 2002. R.30, Apx4. The Commission filed a timely appeal on November 8, 2002. R.31, Apx4. 2. Statement of Facts Thomas Diem is a mechanic. From 1972 to 1996, he worked for McLouth Steel repairing and maintaining mobile equipment – bulldozers, gasoline tankers, trucks, and jitneys (also known as “hi-low’s”). EEOC’s Response to Summary Judgment (“SJ Response”), Ex.1 (job application), Apx37-38; Reconsideration Motion, Ex.2 (Diem Dep. 21), Apx116. This work required substantial bending, stooping, twisting, and squatting. Ex.8 (Mullins Aff. ¶¶ 3-4), Apx86. In the mid-1970s, Diem began experiencing pain in his left hip. The pain grew progressively worse, and by the early 1980s he could no longer walk for more than 100 yards, sit for more than 20 minutes or assist with household chores. Ex.10 (T. Diem Aff. ¶¶ 2-14), Apx92-93; Ex.11 (N. Diem Aff. ¶¶ 2-13), Apx97-98; cf Ex.16 (average person Diem’s age can stand or sit for 8 hours, walk 5 miles in 8-hour period), Apx105. In March 1982 Diem took medical leave from his job. The following month, he was diagnosed with severe aseptic necrosis of the left hip – a noninfectious breakdown and degeneration of the bone – and underwent a hip replacement. Ex.9 (medical records) (noting approximately 50% of femoral head of hip joint destroyed and large necrotic loose bone fragment), Apx87-90. After a lengthy recovery, although he continued to walk with a limp, Diem was able to return to work without restriction in July 1983. In March 1996, McLouth Steel closed. Reconsideration Motion, Ex.2 (Diem Dep. 18), Apx115. Diem took a job as an auto mechanic for Friendly Ford, a job requiring bending, stooping and other similar movement (id. at 50-51, Apx136-37), and applied to work as a jitney repair mechanic for Daimler. In July 1996, Diem was interviewed by Stephen Venglarcik and the other maintenance supervisor responsible for supervising jitney repair mechanics at Daimler’s Detroit Axle Plant. See id. at 33, Apx123; SJ Response, Ex.3 (Venglarcik Aff. ¶ 1), Apx40. What he learned at the interview confirmed his belief that the job was essentially “the same thing [he] had been doing for the last 20 years” – though more high-tech, with smaller, lighter equipment, and perhaps a little cleaner. Reconsideration Motion, Ex.2 (Diem Dep. 41-43), Apx131-33. After the interview, he was offered the job, contingent upon passing a physical examination. Id. at 34, Apx124. Before the physical, Diem filled out a form disclosing, inter alia, that he had a history of swollen joints and had had a hip replacement. SJ Response, Ex.13 (Self-Administered Medical History), Apx101. He was then examined by Dr. Ajit Ray, the plant physician. Ex.5 (Ray Dep. 6), Apx43; Ex.7 (Soukup Dep. 10), Apx58. Although Dr. Ray does not remember Diem or the examination (Ray Dep. 9, Apx45), he testified that he likely saw the medical history form Diem filled out; he also completed a company-generated insert stating that Diem had a “left hip replacement due to arthritis in 1982" and, as a result, walked with a limp. Ex.14 (Insert (retyped version)), Apx102; Ex.5 (Ray Dep. 12-17), Apx47-52; Ex.7 (Soukup Dep. 12-13), Apx60-61. At the time of the examination, Dr. Ray did not know Diem’s work history or what job he was being considered for. Ex. 5 (Ray Dep. 11-12, 31-32), Apx46-47, 53-54. He stated that he would have based his assessment on Diem’s “physical status,” his medical history, and the examination. Id. at 11-12, 46-47. Diem remembers that during the physical, Dr. Ray questioned him about the scar on his hip and asked him to twist his body, which he did. Reconsideration Motion, Ex.2 (Diem Dep. 35-41, 44-45), Apx125-31, 134-35. He does not recall being asked to stoop, squat, lift his knee or sit in a chair and bend over although, he testified, he could have done these movements without difficulty if asked. Id. Diem testified that he had serious trouble understanding Dr. Ray, who speaks with an accent, and on several occasions asked him to repeat or clarify a request – which Dr. Ray did not do. Id. at 37, Apx127; Ex.3 (2d Diem Aff. ¶¶ 1-3), Apx152. Nevertheless, as he was under no medical restrictions at the time and Dr. Ray seemed “satisfied” with the examination, Diem left the examination assuming he had passed. Ex.2 (Diem Dep. 36), Apx126; Ex.3 (2d Diem Aff. ¶ 3), Apx152. He had not. After the examination, Dr. Ray completed an assessment form, stating that Diem should do no more than “minimal stooping, squatting, bending or twisting of body,” should not flex his left hip more than 90E, and should not climb at all. See SJ Response, Exs. 6, 12, 13, 14; Apx55, 99-100, 101, 102. Dr. Ray conveyed this assessment to Christine Soukup, the plant’s employment supervisor, and discussed his conclusions with her. Ex.7 (Soukup Dep. 6, 20), Apx57, 68. Soukup’s understanding was that, because of his hip, Diem could not bend or move easily without a significant risk of physical injury. Id. at 21-22, Apx68-69; see also Order at 4 (Diem “could not sit in a chair and bend over”), Apx13. She stated that she then had several in-depth discussions with one of the maintenance supervisors about Diem’s physical limitations and possible work. See Ex.7, Soukup Dep. 23-25, Apx71-73. Venglarcik recalls no such discussions but does recall hearing that Diem “had job restrictions that prevented him from performing the normal duties of a jitney repair mechanic” because “his hip might ‘pop out.’” Ex.3 (Venglarcik Aff. ¶ 4), Apx40; see also Ex.4 (9/11/96 Memo) (Diem could not do movements such as regular squatting or bending “without risk of physical injury”), Apx41. Based on her discussions with the doctor and supervisor, Soukup testified, she determined that Diem could not do jitney repair work, and the plant had no “bench work” available. Ex.7, Soukup Dep. 20-31, Apx68-79; compare Ex.17, HR Manager Kelley Dep. 29-30 (noting “there’s not too many jobs . . . in an industrial environment that don’t require some type of stooping, squatting, twisting, bending”), Apx108-09. Although she was aware of Diem’s employment history, Soukup stated that she most likely did not ask him to explain how he was physically capable of doing jitney repair work at McLouth, given the restrictions Dr. Ray determined that he had. Ex.7, Soukup Dep. 30-32, Apx78-80. She simply informed Diem that his application was rejected. Id. at 31 (assumes she must have told him about the physical qualifications), Apx79; compare Reconsideration Motion, Ex.2, Diem Dep. 43-44 (10-15 minutes after completing physical, he was shown “some numbers” and told he “failed”), Apx133-34. The next month, Diem filed a charge. Ex.15. Approximately one year later (summer 1997), Daimler offered him a job at a different plant. See Reconsideration Order at 7, Apx32. Diem declined the offer based on the location and the fact that he was planning to undergo surgery to replace his hip replacement. SJ Response, Ex.10 (T. Diem Aff. ¶ 17) (explaining that he was not working full-time, advances in medical technology had improved hip replacements, and his first hip replacement had already lasted much longer than the expected five to ten years), Apx94; Reconsideration Motion, Ex.2 (Diem Dep. 89-90), Apx148-49. Some months later, he began working as a jitney repair mechanic at a third Daimler plant where he is still employed. SJ Response, Ex.10 (T. Diem Aff. ¶ 18), Apx94-95. Daimler moved for summary judgment, arguing that Diem’s hip impairment did not substantially limit him in any major life activity. In response, the Commission did not dispute that Diem was not actually substantially limited, but argued that he had a “disability” within the meaning of the ADA because Daimler regarded his hip impairment as substantially limiting his ability to bend, twist, stoop and squat, as well as work. The Commission also argued that Diem has a record of a substantially limiting impairment. 3. The District Court’s Decisions a. Order Granting Summary Judgment The district court acknowledged that EEOC had shown, for summary judgment purposes, that Diem “was physically capable of performing the job requirements of the jitney mechanic position,” adding that it was undisputed that “Daimler decided not to hire Diem for that position because of his ‘disability.’” Order at 10-11, Apx19-20. The court nevertheless granted Daimler’s motion, rejecting both of EEOC’s coverage arguments. Order at 1 (“EEOC fails to establish that Diem was disabled under the statute”), Apx10. The district court held that bending, stooping, twisting, squatting and working are major life activities. Order at 11, Apx20. However, the court opined that “Dr. Ray only determined . . . that Diem was not physically qualified to perform a job that required more than minimal bending, stooping, squatting or twisting of the body or climbing.” Id. (emphasis added). The court therefore considered only whether Diem was regarded as substantially limited in working and held that he was not. The court found sufficient evidence to support a finding that Daimler “perceived [Diem’s] impairment as rendering him incapable of performing a substantial class of jobs.” Order at 12 & n.7, Apx21. The court concluded, however, that Daimler did not regard Diem as disabled within the meaning of the ADA because the company “did not mistakenly believe that Diem’s physical impairment substantially limited his ability to work.” Id. (original emphasis). The court distinguished this case from cases where employers’ decisions were based on myths, fears and stereotypes because Dr. Ray “made an individualized evaluation of Diem and determined that he could not bend, squat, twist, or stoop without risk of physical injury.” In the court’s view, this evaluation was “accurate” based on “Diem’s failure to perform maneuvers Dr. Ray requested (albeit Diem did not respond to the doctor’s requests because he did not understand him), adding that the failure “was neither Dr. Ray’s nor Diem’s fault.” Id. at 13 & n.8, Apx22-23. Furthermore, the court noted, Daimler’s refusal to hire Diem was based on its “good faith” reliance on that evaluation, rather than on an intent to discriminate. Id. at 14, Apx23. The court also rejected the argument that Diem has a record of a substantially limiting impairment. The court stated, “Although the EEOC establishes that Diem has a record of a disability, it fails to present evidence to show that Daimler was aware of anything in the record aside from the information contained in Diem’s Self-Administered Medical History and Preplacement Examination Insert (which alone do not indicate that Diem was substantially limiting of [sic] major life activities).” Order at 15, Apx24. Moreover, the court added, “it was not Diem’s record that led Daimler to revoke its job offer but rather Diem’s failure to perform the physical maneuvers Dr. Ray asked him to do during the examination.” Id. b. Order Denying Reconsideration The EEOC moved for reconsideration, arguing that liability may be based on an employer’s good faith mistake about an individual’s physical condition, citing two Third Circuit cases, Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998), and Taylor v. Pathmark Stores, 177 F.3d 180 (3d Cir. 1999). The court rejected that argument. The court stated that EEOC had produced no evidence that Dr. Ray’s assessment of Diem’s condition was inaccurate given limitations the court found he had exhibited during the examination. Reconsideration Order at 3, Apx28. The court also stated that, under Deane and Taylor, an employer may be liable for mistakes or miscommunications for which it alone is responsible, but not for miscommunications between the employer and employee. Id. at 4-5 (quoting passage from Taylor stating that employer will have a “defense” for mistakes only where “employee unreasonably failed to inform the employer of the actual situation”), Apx29-30. In any event, the court held, contrary to its conclusion on summary judgment, that the EEOC in fact failed to show that Daimler regarded Diem as significantly restricted in the ability to perform a class or broad range of jobs. For such a finding, the court opined, there must be evidence that “Daimler treated Diem’s impairment as constituting such a limitation.” Id. at 6 (original emphasis), Apx31. The court determined that here, the “evidence indicates that Daimler only believed that Diem was incapable of performing a particular job at a particular plant.” Id. at 7, Apx32. As proof, the court noted that Daimler later contacted Diem about jitney repair work at other plants, and he is currently employed as a jitney repair mechanic for Daimler. STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo. Holiday v. City of Chattanooga, 206 F.3d 637, 642 (6th Cir. 2000). Summary judgment is improper unless there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. In reviewing a grant of summary judgment, this Court applies the same standard the district court should have applied, construing all facts and inferences in the light most favorable to the party opposing the motion. Id. If the non-moving party “presents evidence from which a jury might return a verdict in [its] favor, summary judgment may not be granted.” Id. See also Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). SUMMARY OF ARGUMENT The district court erred in granting summary judgment dismissing EEOC’s enforcement action alleging that Daimler violated the ADA by refusing to hire Thomas Diem, a “qualified individual with a disability,” because of his disability. The court acknowledged that there is sufficient evidence that Diem was “qualified” to be a jitney repair mechanic; the life activities the Commission identified were “major”; and Diem was denied a job as a jitney repair mechanic because of his “disability.” The court concluded, however, that the Commission failed to establish that Diem is covered by the ADA under either a regarded-as or record-of theory of disability. On the regarded-as theory, the Commission presented ample evidence that Daimler mistakenly believed that, because of a hip impairment, Diem could not safely do more than minimal bending, stooping, twisting or squatting -- movements encompassed under the major life activity of “moving.” Although it is undisputed that Diem, in fact, has no such restrictions, Daimler’s doctor concluded that such movements might cause Diem’s hip to “pop out.” Despite this evidence, the court concluded that, to effectuate Congress’s intent, coverage under a regarded-as theory should be limited to situations where the employer based its decision on “myths, fears, and stereotypes.” Because Daimler’s doctor based the restrictions on what the court found was an “individualized assessment” of Diem’s capabilities, the court concluded that coverage and liability were improper. This decision is flawed in at least two critical ways. First, although decisions based on stereotypes and generalizations about disabilities may have been the principal evil Congress was addressing in enacting the ADA, the statute, as enacted, plainly contains no exception for “individualized” – but erroneous – assessments of an individual’s physical capabilities. Accordingly, rather than rewrite the statute, the court should have enforced the statute as it is written: to protect individuals like Diem who lose employment opportunities because the employer mistakenly believes that they are disabled. Furthermore, even under the district court’s view of the statute, summary judgment was improper because the evidence would support a finding that Daimler’s doctor’s evaluation was tainted by presumptions and stereotyped views of persons with hip replacements. The Commission also argued coverage under the record-of provision, which protects individuals like Diem, who have a history of a substantially limiting impairment, from discrimination based on that history. The district court agreed that EEOC “establish[ed] that Diem has a record of disability,” based on his physical limitations before and immediately after his 1982 hip replacement. The court found no coverage, however, on the ground that the documents in Daimler’s possession did not, by themselves, demonstrate to Daimler that Diem’s hip impairment was once substantially limiting. This improperly conflates coverage and liability – there is no knowledge requirement for coverage purposes. Moreover, even for liability, while an employer cannot discriminate “because of” a disability without some knowledge of the disability, what is required in the record-of context is simply that the employer be on notice that the individual has a history of an impairment that could be substantially limiting. An employer acts at its peril if it bases an employment decision on such a history and the condition turns out to have been disabling. Any greater knowledge requirement would eviscerate the Act’s intended protection of persons with a history of disability. The court’s contrary interpretation of the provision should, accordingly, be rejected. ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THOMAS DIEM WAS COVERED BY THE ADA BECAUSE DAIMLER REGARDED HIM AS HAVING AN IMPAIRMENT THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY. A. The Evidence Would Support a Finding that Daimler Mistakenly Believed that Diem was Substantially Limited in the Major Life Activities of Moving And/Or Working. The district court erred in granting summary judgment on the Commission’s claim that Daimler refused to hire Thomas Diem as a jitney repair mechanic because of his disability. The ADA makes it unlawful for an employer such as Daimler to discriminate against a “qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a). The term “disability” is defined to include not only “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (42 U.S.C. § 12102(2)(A)) but also “a record of such an impairment” (§ 12102(2)(B)) and “being regarded as having such an impairment” (§ 12102(2)(C)). A limitation is “substantial” if it “significantly restrict[s]” the “condition, manner or duration under which the individual can perform a particular major life activity” as compared to the average person in the general population. 29 C.F.R. § 1630.2(j). Here, the district court acknowledged that there is sufficient evidence that Diem was “qualified” to be a jitney repair mechanic; the life activities the Commission identified were “major”; and there is no dispute that Diem was rejected because of his “disability.” Nevertheless, the district court rejected the claim on the ground that Diem does not have a “disability” within the meaning of the ADA. This was error. Evidence showed that Dr. Ray incorrectly determined that, due to his hip impairment, Diem could do no more than minimal bending, stooping, twisting and squatting. This amply supports a finding that Diem is covered by the ADA because he was regarded by Daimler as substantially limited in moving and/or working. In determining whether an individual has a “disability” because he is “regarded as” having a substantially limiting impairment, a court should “not even focus on the disability but on the perception of the employer regarding the perceived disability.” MX Group v. City of Covington, 293 F.3d 326, 340 (6th Cir. 2002); see also Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001). Coverage may be established by showing that the employer “mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities” of the individual. United Airlines v. Sutton, 527 U.S. 471, 489 (1999); see also Interpretive Guidance on Title I of the Americans with Disabilities Act (“EEOC Guidance”), 29 C.F.R. 1630 App., § 1630.2(l) (impairment “is not substantially limiting but is perceived by the employer . . . as constituting a substantially limiting impairment”). In arguing that Diem was regarded as having a substantially limiting impairment in this case, the Commission first contended that Daimler regarded Diem as substantially limited in bending, twisting, stooping and squatting. See Henderson v. Ardco, 247 F.3d 645, 650 (6th Cir. 2001) (“Where possible, it is preferable to identify another more specific impairment before considering ability to work.”). The evidence showed that Daimler rejected Diem’s application for employment based on Dr. Ray’s assessment that Diem could not safely do more than “minimal stooping, squatting, bending or twisting of body” or “flex his left hip more than 90E.” See SJ Response, Exs. 6, 12, 13, 14; Apx55, 99-100. 101, 102. These movements are clearly encompassed in the major life activity of “moving,” which this Court recently recognized in a case where, due to injuries, the plaintiff had to alter the way she performed any movement that might jar her chest. See Hoskins v. Oakland County Sheriff’s Dep’t, 227 F.3d 719, 724-25 (6th Cir. 2000). Since the specific restrictions that Daimler, through its agent Dr. Ray, ascribed to Diem would, if true, clearly be “significant,” the evidence would support a finding that Daimler regarded Diem as substantially limited in moving -- specifically, bending, twisting, stooping and squatting. The district court summarily rejected this argument, inferring from Dr. Ray’s evaluation that he, in fact, believed only that “Diem was not physically qualified to perform a job that required more than minimal bending, stooping, squatting, or twisting of the body or climbing.” Order at 11 (emphasis added), Apx20. This inference was improper given the procedural posture of the case – a motion for summary judgment. See Holiday, 206 F.3d at 642. In fact, the evidence strongly supports the contrary inference – that Dr. Ray’s assessment was not tied to any job. Dr. Ray acknowledged that, at the time he gave his opinion about Diem’s mobility, he did not know Diem’s work history or the job for which he was being considered; even when shown a description of the jitney repair position, he stated that he could not “really say” whether someone with the restrictions he had imposed could do that job. See SJ Response, Ex.5 (Ray Dep. 12, 31-32), Apx47, 53-54. Nor did Dr. Ray limit his findings to work-related movements. Rather, in discussing Diem’s supposed limitations with Christine Soukup, for example, the doctor indicated that Diem could not sit in a chair and bend over – as he might have to do when putting on his socks, for example – without risk of serious physical injury. Order at 4, Apx13. Thus, while Daimler’s immediate concern may have been with potential work-related injuries, the evidence strongly suggests that Dr. Ray believed that Diem’s perceived limitations would affect him outside the workplace as well as on the job. In any event, the Commission argued in the alternative that Dr. Ray’s perception of Diem’s limitations would support a finding that Daimler regarded Diem as substantially limited in working since, if the perceived limitations were true, he could not do the bending, twisting, stooping and squatting necessary for most mechanic jobs. Cf. Murphy v. UPS, 527 U.S. 516, 524 (1999) (suggesting that mechanic is class of jobs). It is undisputed that all the mechanic jobs that Diem has had require physical agility. See Reconsideration Motion, Ex.2 (Diem Dep. 51), Apx137; SJ Response, Ex.8 (Mullins Aff. ¶¶ 3-4), Apx86. Christine Soukup concluded that, with his perceived limitations, Diem could do only “bench work,” which would qualify him for only a fraction of the mechanic jobs in the labor market for which he was otherwise qualified, and for none of the jobs available at the Detroit Axle Plant. See SJ Response, Ex.7 (Soukup Dep. 20-31), Apx68-79. Similarly, John Kelley, then Human Resource Manager at the plant, characterized Dr. Ray’s limitations as “pretty restrictive,” noting “there’s not too many jobs that are done in an industrial environment don’t require some type of stooping, squatting, twisting, bending.” Ex.17, (Kelley Dep. 29-30), Apx108-09. Cf. Ex.18 (Browning Aff.) (estimating that Diem’s perceived limitations would preclude him from 175,000 jobs open to someone with similar skills, training and ability in Detroit area), Apx110-11. Initially, the district court agreed that there was an issue of fact as to whether Daimler regarded Diem as substantially limited in working, holding that the Commission presented “sufficient evidence to indicate that [Diem’s] perceived impairment significantly limits his ability to work in a broad class of jobs.” Order at 12 n.7, Apx21. On reconsideration, however, the court reversed that ruling, concluding that it had applied a faulty legal standard. See Reconsideration Order at 6, Apx31. Under the correct standard, the court held, the Commission was required, but failed, to show that “Daimler treated [Diem’s] impairment as constituting such a limitation.” Id. (original emphasis) (adding that employer’s subjective belief is key). In the court’s view, the “evidence indicates that Daimler only believed that Diem was incapable of performing a particular job at a particular plant” – jitney repair mechanic at the Detroit Axle Plant. Id. at 7, Apx32. As support, the court noted that Daimler later offered Diem similar positions at other plants. Id. The legal standard the court applied originally was correct. Although the employer’s state of mind is important in a regarded-as case (Reconsideration Order at 6, Apx31), an individual is covered by the ADA if the limiting condition the employer perceives him as having would, if true, substantially limit his ability to do a class or broad range of jobs. See, e.g., Murphy, 527 U.S. at 524 (assessing whether mechanic perceived as unable to obtain DOT certification was regarded as substantially limited in working without asking whether employer consciously considered his suitability for other jobs). Here, as noted above, the undisputed evidence shows that Dr. Ray’s statements about Diem’s physical restrictions were not limited to any one job. Cf. Holiday, 206 F.3d at 637 (holding employer responsible for plaintiff’s erroneous medical evaluation conducted by doctor with whom employer had contracted). Moreover, although Daimler used Dr. Ray’s assessment to reject Diem for only the jitney repair job at the Detroit Axle Plant, there is no evidence that the job was unique or even unusual. A reasonable jury could thus find that the company regarded Diem as significantly restricted in his ability to work in a class or broad range of jobs. Finally, contrary to the district court’s ruling, the fact that Daimler later offered Diem other positions in July and December of 1997 sheds no light on whether the company regarded Diem as substantially limited when it withdrew its offer in July of 1996. In the interim, Diem had filed a charge. See SJ Response, Ex.15 (charge dated August 1996). In responding to that charge, the company may well have realized the incongruity between Dr. Ray’s assessment and Diem’s employment history. A jury could therefore find that Daimler’s subsequent job offers were simply attempts to mitigate damages. B. Diem was Covered by the ADA Whether or Not Daimler’s Misperception Was Based On Myths, Fears and Stereotypes. The district court held that, even if Daimler mistakenly believed that Diem was substantially limited in a major life activity, the company’s rejection of his application for employment did not violate the ADA because Daimler’s decision was based on at best a mistaken perception of Diem’s condition after an “individualized assessment,” and there is no evidence (either way) that the assessment was “infected with stereotypes or prejudices.” Reconsideration Order at 6, Apx31. This ruling fundamentally misconstrues the ADA in a way that deprives persons like Diem, who lose employment opportunities because of a misperception that they are disabled, of a remedy they are entitled to under the ADA. The starting point for interpreting a statute is the language of the statute itself. Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980). Section 102(a) of the ADA flatly prohibits employers from discriminating against a “qualified individual with a disability” because of the disability. See 42 U.S.C. § 12112(a). This applies with equal force to an individual like Diem who has a “disability” only because he has an impairment that is erroneously perceived as substantially limiting a major life activity. See 42 U.S.C. § 12111(8). Accordingly, under the plain language of the statute, absent some defense, an employer such as Daimler violates the ADA when it refuses to hire an otherwise qualified applicant based on a mistaken belief that he has a substantially limiting impairment. See, e.g., Sullivan v. River Valley School Dist., 197 F.3d 804, 814 (6th Cir. 1999) (“[a]n employee’s lack of a disability does not shield an employer from liability for discriminatory conduct based on a mistaken but genuine belief that an employee is disabled”); Johnson v. American Chamber of Commerce Pub., 108 F.3d 818, 819 (7th Cir. 1997) (“If for no reason whatsoever an employer regards a person as disabled – if, for example, because of a blunder in reading medical records it imputes to him a heart condition he has never had – and takes adverse action, it has violated the statute unless some other portion of the law affords it a defense.”). The district court carefully set out the applicable statutory provisions, but then held that there is no coverage or liability in this case for reasons which have no relation to the terms of the statute. First, the court stated that Dr. Ray’s evaluation was “accurate based on Diem’s failure to perform maneuvers Dr. Ray requested” (Order at 13, Apx22), so “Daimler did not mistakenly believe that Diem’s impairment substantially limited his ability to work.” Id. at 12, Apx21 (original emphasis). The court reasoned that the “ADA forbids discrimination based on [myths, fears and stereotypes], but it does not forbid decisions based on the actual attributes of the [disability].” Order at 14, Apx23. Second, the court explained that Congress intended the ADA to prohibit decisions based on “biases, ignorance, or unfounded fears about the plaintiffs’ impairments.” See, e.g., Order at 13, Apx22. In light of that intent, the court concluded, there should be no liability for decisions based on an “individualized assessment” – even an erroneous one – of a plaintiff’s physical condition where there is no evidence that the assessment was “infected with stereotypes or prejudice.” See, e.g, Reconsideration Order at 6, Apx31. On the first ground, we note that Dr. Ray’s evaluation of Diem’s physical capabilities in fact was not “accurate” and Daimler’s perception was “mistaken.” It is undisputed that, despite his hip impairment, Diem can bend, twist, squat, stoop and climb without restriction; indeed, he was required to do so as part of his job as a mechanic at McLouth Steel up until the time he applied to work at Daimler. See, e.g., Reconsideration Motion, Ex.2 (Diem Dep. 36-45), Apx126-35; SJ Response, Ex.10 (T. Diem Aff. ¶¶ 16-17), Apx94; Ex.8 (Mullins Aff. ¶¶ 3-5), Apx86. The district court’s holding makes sense only if the word “accurate” is read to mean “individualized” and untainted by generalizations or presumptions about specific impairments. See, e.g., Reconsideration Order at 6, Apx31. But that bears no relation to the actual meaning of the word. See Webster’s Ninth Collegiate Dictionary 50 (1983) (defining “accurate” to mean “free from error” or “conforming exactly to truth”). Regardless of how he reached that result, Dr. Ray’s determination that, due to his impairment, Diem could safely do only minimal bending, twisting, stooping and squatting, was clearly not “free from error” but incorrect. Similarly, Daimler’s decision based on that determination was not based on the “actual attributes” of a disability but rather on a mistake. Accepting that Diem’s rejection was based on a mistaken belief that he was substantially limited in one or more major life activities, the district court’s second rationale for dismissing this action – that the ADA prohibits employment actions based on a perceived disability only if the employer’s perception is based on myths, fears or stereotypes – amounts to a rewriting of the statute to conform to what the district court viewed as Congress’s true intent. See, e.g., Order at 14, Apx23. As noted above, the statutory terms provide coverage where a qualified individual is regarded as having a substantially limiting impairment, without any consideration of the way in which the individual came to be so regarded. Courts including this one have agreed that the principal evil Congress intended to address in enacting the ADA’s regarded-as provision was discrimination based on “unfounded fear, prejudice, ignorance, or mythologies.” See, e.g., Holiday, 206 F.3d at 643; see Sutton, 527 U.S. at 489 (“misperceptions” about individual’s physical capabilities “often result from stereotypic assumptions not truly indicative of . . . individual ability”); see also H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 33 (“major category” of job discrimination that ADA was designed to address was refusal to hire based on “generalized presumptions” about “safety”), reprinted at 1991 U.S.C.C.A.N. 303, 315. However, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998). As this Court recently noted, legislative intent “is gleaned primarily from the statute’s plain language, and where the statute’s language is plain and unambiguous, there is no justification for resorting to legislative history to ascertain the lawmaker’s intent – the words of the statute suffice.” Cline v. General Dynamics Land Sys., 296 F.3d 466, 469 (6th Cir. 2002). Indeed, even “if a court thinks statutory language does not reflect what the court believes the legislators ‘must have’ intended,” the court nevertheless “may not, under the guise of ‘statutory interpretation,’ rectify the problem by holding, in effect, that the legislators intended something other than what they declared.” Id. Accordingly, here, since the statutory language is plain and plainly extends coverage, without qualification, to persons regarded as having an impairment that substantially limits one or more major life activities, the district court was not justified in attempting to “rectify the problem” by reading in a requirement that a mistaken perception also result from “myths, fears and stereotypes.” Moreover, there is simply no authority for the court’s contrary rule. The district court cited Holiday, 206 F.3d 637 (Order at 12-13), but that case does not hold that decisionmaking based on myths, fears and stereotypes is a prerequisite for liability under the regarded-as provision. In Holiday, this Court held only that there is no defense of reasonable mistake where there is evidence the decision was based on myths, fears and stereotypes. 206 F.3d at 644. Whether liability depends on such evidence was neither raised nor addressed. This Court’s statement in Sullivan, 197 F.3d at 814 (see supra at 21-22) suggests that this Court would not recognize such a requirement. The Third Circuit has considered and rejected such a broad limitation on ADA coverage. In Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998), the Third Circuit reversed the district court’s holding that the hospital’s mistaken perception about the severity of a nurse’s wrist impairment could not be actionable under the ADA because it was not “motivated by myth, fear or stereotype.” 142 F.3d at 144. Notwithstanding the legislative history, the Deane Court concluded that “a simple mistake of fact as to severity, or even the very existence, of an individual’s impairment can be sufficient to satisfy the statutory definition of a perceived disability” – the employer’s motivation was not “determinative” of a regarded-as claim. Id. In a subsequent case, the Third Circuit recognized a narrow “reasonability defense” for cases where the employer “regards the individual as disabled based on a mistake in an individualized determination of the employee’s actual condition and the employee unreasonably fails to inform the employer of the actual situation” after he has “reason to know of the basis of the employer’s decision.” See Taylor v. Pathmark Stores, 177 F.3d at 193-94 (adding that reasonability is “fact-specific test”). The Court reasoned that such mistakes are farther from the ADA’s core concerns, and the rule would “encourage communication between employer and employee in the same way the interactive process for determining reasonable accommodation does.” Id. The district court in this case mistakenly read Taylor as consistent with its own view that an employer incurs ADA liability only for employment decisions based on myths, fears and stereotypes. In particular, the court suggested that Taylor’s limited defense is generally available for “mistakes made by the employer which are not infected with stereotypes or prejudice against the disabled.” Reconsideration Order at 5; id. at 4-5 (liability only for “miscommunications for which the employer alone is responsible”), Apx29-30. On the contrary, it is clear that under Taylor, summary judgment would be improper in this case because there is ample evidence that Daimler was at the very least partially responsible for its mistaken perceptions concerning Diem’s ability to move and/or work. As noted above, the reasonability defense is available only where the employee “unreasonably fail[ed] to inform the employer of the actual situation” after he had “reason to know of the basis of the employer’s decision.” See Taylor, 177 F.3d at 193-94. Here, the evidence would clearly permit a jury to find that Diem’s conduct was not unreasonable. Indeed, the district court expressly found that Daimler’s mistake was not Diem’s fault. Order at 13 n.8, Apx22. Diem testified that he had great difficulty understanding Dr. Ray and Dr. Ray made no attempt to repeat or clarify, despite requests to do so. Reconsideration Motion, Ex.2 (Diem Dep. 37), Apx127. As for whether he unreasonably failed to correct Daimler’s misperception, Diem recalled that, some 10-15 minutes after his physical ended, he was shown “some numbers” and told he “failed.” Id. at 43-44, Apx133-34. He did not understand his supposed limitations, and Soukup did not provide an opportunity to clarify the situation by asking him to explain how he could perform the job duties with such limitations. See Ex.3, Diem 2d Aff. ¶ 5, Apx152; SJ Response, Ex.7 (Soukup Dep. 31-32), Apx79-80. See 29 C.F.R. § 1630.14 & App. (employer may ask applicant to describe or demonstrate how he can perform essential job functions, given limitations). In short, there is no good justification for the district court’s flawed interpretation of the regarded-as provision. This is not a case where construing the statute literally would lead to absurd results. Cf. United States v. Turkette, 452 U.S. 576, 580 (1981). The ADA demands that individuals be judged on the basis of their abilities, not their perceived limitations. See Holiday, 206 F.3d at 642. As this case demonstrates, it is not always clear what went on in a supposed “individualized assessment” nor why an employer would choose to accept such an assessment at face value even where it is flatly inconsistent with what the employer already knows about the applicant’s actual employment history. Moreover, courts have long recognized that decisionmakers may harbor biases that even they are not conscious of. See, e.g., Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 (1st Cir. 1999). Forcing a plaintiff to prove, as an additional element of coverage – or liability, that even a patently inaccurate assessment of an applicant’s physical condition was tainted by presumptions, generalizations, prejudices or stereotypical views of a particular impairment would prevent most plaintiffs from pursuing claims under a regarded-as theory. In contrast, placing the risk of liability on the employer for such mistakes would encourage employers to ensure that their assessments are not only “individualized” but accurate. C. In Any Event, the Evidence Would Support a Finding That Dr. Ray’s Evaluation Of Diem Was Tainted By Presumptions and Generalizations About Disabilities. Finally, even if regarded-as coverage were limited to cases where the employer’s decision is tainted by presumptions and generalizations about a specific disability, the district court erred in ruling as a matter of law that Daimler’s perception of Diem carried no such taint because the evidence would support a contrary finding. Summary judgment was therefore inappropriate even under the standard the district court applied. Significantly, although the court found that Dr. Ray asked Diem to bend, stoop and perform other maneuvers, there is no real evidence that he did. Dr. Ray testified that he did not recall the examination at all (SJ Response, Ex.5 (Ray Dep. at 9, Apx45), and Diem did not understand him to make such requests if, in fact, he did. Reconsideration Motion, Ex.2 (Diem Dep. 36-41, 44-45), Apx126-131, 134-35; Ex.3 (Diem 2d Aff. ¶¶ 3-4), Apx152.1 On the other hand, Diem does recall that Dr. Ray examined his scar and asked about the surgery (Reconsideration Motion, Ex.2, Diem Dep. 35-40, Apx125-31); the doctor also saw and completed the Preplacement Examination Insert stating that Diem had had a hip replacement “due to arthritis in 1982” and, as a result, walks with a limp. SJ Response, Ex.14, Apx102. Diem noted that his hip replacement, done in the early 1980s under the old technology, was expected to last only five to ten years. Reconsideration Motion, Ex.2 (Diem Dep. 56-57). Apx141-42. Based on this evidence, a jury could find that Dr. Ray never asked Diem to bend or squat, but rather simply assumed, because of the hip replacement, that any such movements would be too risky. Furthermore, even if Dr. Ray did ask Diem to bend and squat during the examination, a jury could find that the doctor’s conclusion that Diem could not safely do such maneuvers was informed by stereotyped views of Diem’s impairment. There is no evidence Diem told the doctor he had trouble moving in a particular manner nor otherwise indicated that some movement would be hard or painful. Nevertheless, following the examination, Dr. Ray found that Diem’s movements were restricted in very specific ways. According to the doctor, Diem could not, for example, safely flex his left hip more than 90E or sit in a chair and bend over. See Order at 4, Apx13. Venglarcik understood that, if Diem performed such movements, “his hip might ‘pop out.’” SJ Response, Ex.3 (Venglarcik Aff. ¶ 4), Apx40. From this, a jury could find that Dr. Ray’s generalized views concerning hip replacements caused him to jump to the conclusion that Diem’s mere failure to respond to his requests meant that he could not safely bend, stoop, squat, twist or climb.2 This Court reversed a summary judgment in analogous circumstances in Holiday, 206 F.3d 637. There, during a post-offer physical examination, a prospective police officer revealed that he was infected with HIV and had been diagnosed as borderline anemic since high school. The doctor completed the examination, told the candidate he passed and then informed the employer that he was not “physically fit to perform strenuous activity” because he had a history of anemia and HIV. Id. at 641 (personnel director understood he had an AIDS-related health problem). Even though the personnel director knew the candidate had passed a battery of fitness tests and held similar jobs elsewhere, she withdrew the offer, explaining that she could not put others at risk by hiring him. Id. This Court ruled that the employer could not “simply rely” on the doctor’s assessment since the doctor had failed to investigate the physical effects, if any, of the candidate’s HIV status on his ability to work; there was no evidence the disease had progressed beyond the asymptomatic stage; and the employer had reason to question the accuracy of the assessment given the contradictory information that it had about his physical condition. See generally id. at 644-46. The district court here distinguished Holiday, reasoning that the doctor there did not conduct an individualized evaluation of the plaintiff whereas, in the court’s opinion, “Dr. Ray made an individualized evaluation.” Order at 13, Apx22. On the contrary, viewed in the light most favorable to the respective plaintiffs, the evidence in the two cases appears quite comparable. In neither case is there evidence that the doctor actually attempted to determine the applicant’s true capabilities. In Holiday, knowing the plaintiff was HIV+, the doctor concluded that he was too weak to be a police officer because of a perceived AIDS-related complex from which he apparently did not suffer. 206 F.3d at 641, 644. Similarly, here, knowing Diem had an old hip replacement, Dr. Ray imposed restrictions on Diem’s bending, twisting, stooping, squatting and climbing because he perceived that such movements were too risky and “might” cause Diem’s hip to “pop out.” SJ Response, Ex.3 (Venglarcik Aff. ¶ 4), Apx40. By analogy to Holiday, therefore, summary judgment in this case was inappropriate. Accordingly, we urge this Court to reverse the judgment dismissing EEOC’s claim under the regarded-as theory of coverage. Since the evidence would support a finding that Daimler’s decision was based on a mistaken belief that Diem was substantially limited in moving – specifically, bending, stooping twisting and squatting – and/or working, the case should be remanded for further proceedings in the court below. II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT DIEM IS COVERED BY THE ADA BECAUSE HE HAS A RECORD OF A SUBSTANTIALLY LIMITING IMPAIRMENT. The district court also erred in granting summary judgment based on its determination that Diem is not covered by the ADA as an individual with a record of a substantially limiting impairment. The “record-of” provision of the disability definition applies where the individual has a history of a physical or mental impairment that, at some point in the past, substantially limited one or more major life activities. 29 C.F.R. § 1630.2(k) (defining “record” to include “history”); see, e.g., McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001) (plaintiff must show that “at some point her impairment actually did substantially limit [a major life activity]”). This category of cases is closely intertwined with the regarded-as category, reflecting a desire to “combat the effects of erroneous but nevertheless prevalent perceptions” with respect to individuals who, “at present,” have “no actual incapacity.” School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987); see also Davidson v. Midelfort Clinic, 133 F.3d 499, 509 (7th Cir. 1998) (coverage extends to “people who have recovered from previously disabling conditions [such as cancer] but who may remain vulnerable to the fears and stereotypes of their employers”). To support its claim under a record-of theory, the Commission presented substantial evidence – both testimony and medical records – that in the years leading up to his 1982 hip replacement Diem became increasingly less able to move without great pain because of severe aseptic necrosis – the breakdown and degeneration of the femoral head – in his left hip. By 1981, while still only in his early 30's, he could not walk farther than 100 yards or sit longer than 15 or 20 minutes. In March 1982, he took a medical leave of absence from McLouth Steel because he could no longer even walk the length of the shop floor -- some 60 to 80 feet. At home, he ate in a reclining chair because it hurt too much to sit even for a meal. In April 1982, he underwent surgery for a hip replacement; the recuperation period was lengthy, and he could not work until July of the following year. See generally SJ Response, Ex.10 (T.Diem Aff. ¶¶ 2-14), Apx92-93; Ex.11 (N. Diem Aff. ¶¶ 2-9), Apx97-98; see also Ex.9 (medical records), Apx87-90; cf. Ex. 16 (Arbit Aff. ¶¶ 7-8) (average 30-40-year-old man can sit for eight hours, walk five miles in eight-hour period), Apx105. As the district court expressly recognized (Order at 15, Apx24), this evidence is plainly sufficient to support a finding that Diem has a history, or record, of an impairment that substantially limited major life activities including walking and sitting. The district court therefore erred in finding that Diem is not covered under a record-of theory. An ADA plaintiff must establish not only that he had a disability, but also that the defendant discriminated “because of” the disability. “[I]f an employer does not know of the disability, such employer cannot take an adverse action against en employee because of the disability.” Pace v. Paris Maint. Co., 107 F. Supp. 2d 251, 261 (S.D.N.Y. 2000), aff’d, 2001 WL 327102 (2d Cir. Apr. 3, 2001) (unpublished). Thus, to establish liability, there must also be evidence that the employer was aware of the individual’s history sufficient to support an inference that the challenged adverse employment action was “because of” that history. See EEOC Guidance, 29 C.F.R. § 1630 App., § 1630.2(k). This is, however, an aspect of causation, rather than an element of coverage. In any event, there is such evidence in this case. Specifically, before his physical, Diem gave Daimler his completed Self-Administered Medical History Form, which noted his hip replacement (as well as, e.g., “painful and swollen joints”); the company also prepared the Preplacement Examination Insert, which Dr. Ray completed, specifying that Diem had had a “left hip replacement due to arthritis in 1982" and, as a result, walks with a limp. Exs. 13, 14; Apx101, 102. In addition, during his examination, Dr. Ray pointed to the scar on Diem’s hip and asked about the surgery. There is thus no question that Daimler was on notice that at some point including 1982 Diem had an arthritis-related problem with his left hip that was serious enough to warrant surgical replacement. This amply satisfies any valid notice requirement. The district court, however, required more. Relying largely on its reading of EEOC’s Guidance, the court concluded that to prove coverage the Commission must show that the documentary materials in Daimler’s possession by themselves indicated that Diem’s hip condition substantially limited a major life activity. See Order at 14-15, Apx23-24. The court then determined that the documents Daimler had – the Self-Administered Medical History Form and Preplacement Examination Insert – did not provide such notice. Id. There are two problems with this holding. First, it improperly conflates coverage and liability. As noted above, under the plain terms of the provision, an individual is covered under the “record-of” part of the definition of disability if he has a history of a substantially limiting physical impairment. 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(k). There is no knowledge requirement. Cf. MX Group, 293 F.3d at 339-40 (finding “record-of” coverage in ADA Title II case without imposing knowledge requirement); Pace, 107 F. Supp. 2d at 261 n.2. Second, to the extent the decision can be read as rejecting EEOC’s argument on liability rather than only coverage grounds, the knowledge requirement it imposes is too exacting. The purpose of the “record-of” category is “to ensure that people are not discriminated against because of a history of disability.” EEOC Guidance, 29 C.F.R. 1630 App., § 1630.2(k). There is no danger that an individual will be the victim of discrimination based on a medical history about which the employer knows nothing, but the employer can be aware that the individual has a history of a particular condition and act on the basis of that knowledge without knowing the full details of the condition. Where, as here, the “record” reflects the kind of impairment that could substantially limit one or more major life activities, evidence that the employer is aware of and acted on the basis of that record satisfies the knowledge requirement. See Davidson, 133 F.3d at 510 n.7; cf. Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1059 (7th Cir. 1998) (potential regarded-as liability where employer was aware of plaintiff’s diagnosis). This point is made in Arline, 480 U.S. 273, the leading Supreme Court case on the record-of category. There, it was undisputed that the plaintiff had a record of a substantially limiting impairment, based on her initial bout with tuberculosis nearly ten years before she began working for the defendant. Id. at 276, 281. She was terminated, however, after recurrences of the tuberculosis which in themselves were not substantially limiting. Though there was no indication that her employer knew the details of her underlying history of tuberculosis, the Supreme Court nevertheless construed the record-of provision of the Rehabilitation Act (predecessor to the ADA) as supporting the claim. The district court suggested that its standard was compelled by EEOC’s Guidance, but the Guidance stands for no such proposition. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997) (agency’s interpretation of its own regulations is “controlling unless plainly erroneous or inconsistent with the regulation”).3 The sentence quoted by the court reads: “This part of the definition [of disability] is satisfied if a record relied on by the employer indicates that the individual has or has had a substantially limiting impairment.” See 29 C.F.R. 1630 App., § 1630.2(k). Taken out of context, as the district court did here, we agree the meaning may be unclear. However, the guidance states that the record need only “indicate” that the impairment was substantially limiting. That is, it should reflect the kind of impairment that could be substantially limiting. See Davidson, 133 F.3d at 510 n.7; see also 29 C.F.R. 1630 App., § 1630.2(k) (“The impairment indicated in the record must be [one] that would substantially limit one or more of the individual’s major life activities.”). The illustrations in the guidance underscore this point. They note, for example, that an individual would be protected under the record-of category if an employer refuses to hire him because he has had cancer. See EEOC Guidance, 29 C.F.R. 1630 App., § 1630.2(k); accord H.R. Rep. No. 101-485(II), at 52, reprinted at 1990 U.S.C.C.A.N. 334. Courts have held that not all cancer substantially limits a major life activity. See, e.g., EEOC v. R.J. Gallagher, 181 F.3d 645, 655 (5th Cir. 1999). The guidance makes clear, however, that an employer risks incurring ADA liability if it bases an employment decision on the individual’s history of cancer and the cancer turns out to have been disabling. The rationale for this rule is similar to the rationale for the rule the district court applied in limiting coverage under the regarded-as provision. As the Taylor Court explained, an employer acts at its peril in denying employment to an individual based on the view that a particular impairment inherently precludes successful job performance or otherwise makes the individual less than an ideal employee. See 177 F.3d at 193. Moreover, since the information an employer has when making employment decisions seldom details the full extent of an individual’s prior disability, any greater knowledge requirement would seriously undermine the Act’s intended protection of persons with a history of disability. This, in turn, would “defeat the ADA’s attempt to eradicate what may be deeply rooted and seemingly rational presumptions about the abilities of the disabled.” See id. This Court should therefore reject the district court’s approach to coverage under the record-of provision. Alternatively, the district court rejected the Commission’s argument on the facts, finding that Daimler refused to hire Diem not because of his record but because he “fail[ed] to perform the physical maneuvers Dr. Ray asked him to do during the examination.” Order at 15, Apx24. As discussed above, the record would support a finding that Diem did not fail to perform any requested maneuvers.4 In any event, Dr. Ray testified that he bases his evaluations on a patient’s medical history as well as on his examination. See SJ Response, Ex.5 (Ray Dep. 11-12), Apx46-47. This testimony would support a finding that Diem’s medical history played a role in Dr. Ray’s evaluation of his physical condition. Accordingly, we urge this Court to hold, contrary to the decision of the court, that there is no knowledge requirement to establish coverage under the record-of provision; for liability, the evidence need only be sufficient to support a finding that the employer (1) was on notice that the individual has a history of a condition that could be substantially limiting and (2) relied on that information in its decisionmaking. Since summary judgment under this theory was inappropriate, the judgment should be reversed. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to reverse the judgment and remand the Commission’s enforcement action to the district court for further proceedings. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _____________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7014 Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule 32, I certify that the foregoing brief was prepared using Courier New (monospaced) font, 12 point, and contains 10154 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Corel Word Perfect 9 word counting program. ___________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of the Commission’s Brief as Appellant was sent this 5th day of June, 2003, by first-class mail, postage prepaid, to the following attorney of record: Lawrence J. Murphy VARNUM, RIDDERING, SCHMIDT & HOWLETT, LLP 251 North Rose Street, 4th Floor Kalamazoo, MI 49007-3823 ______________________________ Barbara L. Sloan ADDENDUM APPELLANT’S DESIGNATION OF APPENDIX CONTENTS Pursuant to Sixth Circuit Rule 11(b) & (f), the Equal Employment Opportunity Commission hereby designates the following materials from the district court record as items to be included in the joint appendix: Description of Item Filing Date Number docket sheet -– -- Complaint 6/6/2001 R.1 Order Granting Summary Judgment 5/2-/2002 R.25 Judgment 5/20/2002 R.26 Order Denying Plaintiff’s Motion 9/12/2002 R.30 for Reconsideration Notice of Appeal 11/8/2002 R.31 Exhibits to EEOC’s Summary Judgment Response 4/19/2002 R.19 Exhibit 1 (job application) 4/19/2002 R.19 Exhibit 3 (Venglarcik Affidavit) 4/19/2002 R.19 Exhibit 4 (9/11/96 Daimler’s Memo) 4/19/2002 R.19 Exhibit 6 (Medical Services Request Form) 4/19/2002 R.19 Exhibit 8 (Mullins Affidavit) 4/19/2002 R.19 Exhibit 9 4/19/2002 R.19 (Diem’s medical records) Exhibit 10 4/19/2002 R.19 (Thomas Diem Affidavit) Exhibit 11 4/19/2002 R.19 (Nancy Diem Affidavit) Exhibit 12 4/19/2002 R.19 (Daimler’s Physical Qualification Codes) Exhibit 13 4/19/2002 R.19 (Diem’s Self-Administered Medical History) Exhibit 14 4/19/2002 R.19 (Preplacement Examination Insert) (retyped version) Exhibit 16 4/19/2002 R.19 (Arbit Affidavit) Exhibit 18 4/19/2002 R.19 (Browning Affidavit) Deposition of Ajit Ray 4/19/2002 R.19 (pages 6, 9, 11-17, 31-32) Deposition of Christine Soukup 4/19/2002 R.19 (pages 6, 10, 12-13, 20-32) Deposition of John Kelley 4/19/2002 R.19 (pages 29-30) Exhibit to EEOC’s Motion 6/4/2002 R.27 for Reconsideration Exhibit 3 6/4/2002 R.27 (2d Diem Affidavit) Deposition of Thomas Diem 6/4/2002 R.27 (pages 18, 21, 33-45, 50-51, 56-57, 89-90) These materials were properly made a part of the record below. Respectfully submitted, Barbara L. Sloan Attorney, Equal Employment Opportunity Commission 1 In his deposition, Diem stated that he did not recall being asked to bend or stoop during his physical – and could not imagine why he would have said he had trouble with those movements since he could do them without restriction. He added, however, that Dr. Ray said some things that he did not understand and he “found out later” that Dr. Ray had wanted him to make the movements. Reconsideration Motion, Ex.2 (Diem Dep. 36), Apx126. The district court cited this statement as evidence of what transpired during the examination. Order at 3, Apx12. At best, this presents a factual issue since Diem later explained that he never understood the doctor to make such requests but simply “assumed in hindsight” that he may have done so. Ex.3 (Diem 2d Aff. ¶¶ 3-4), Apx152. 2 This is especially plausible in light of Dr. Ray’s determination that Diem could not climb at all. There is simply nothing anywhere to suggest that Diem had any problem climbing. See Reconsideration Motion, Ex.2 (Diem Dep. 37-38) (routinely climbed equipment at McLouth Steel), Apx127-28. 3 The district court also cited several cases, but they likewise do not support the conclusion that “record-of” coverage requires proof that the employer knew the details of the individual’s previous impairment. In Davidson, 133 F.3d at 509-10 & nn.6-8, the Seventh Circuit found coverage under the “record-of” provision even though it was unclear to what extent, if any, plaintiff and her employer had discussed her learning-related difficulties. In Hilburn v. Murata Electronics, 181 F.3d 1220, 1228-29 (11th Cir. 1999), there was no evidence plaintiff’s heart problems had ever substantially limited a major life activity. Accord Taylor v. Nimock’s Oil Co., 214 F.3d 957, 961 (8th Cir. 2000); see also Dupre v. Charter Behavioral Health Sys., 242 F.3d 610, 615 (5th Cir. 2001) (cited below in Daimler’s Reply at 4 n.8). As for this Court’s unpublished decision in Keith v. Ashland, 2000 WL 178389 (6th Cir. Feb. 8, 2000), it does not indicate that the plaintiff was even arguing that his employer discriminated against him because of a history of mental illness (whether or not substantially limiting), but rather because of current problems resulting from that condition. 4 The district court’s reasoning attempts to divorce the manifestations of a disability from the disability itself. If Diem in fact had been unable to perform requested “physical maneuvers” because of his disability, however, Daimler’s rejection of him on that basis would be because of a disability. See, e.g., EEOC v. Kinney Shoe Co. 104 F.3d 683, 686 (4th Cir. 1997) (holding that discharge because of some manifestation of disability – seizures for person with epilepsy – is discharge because of disability).