Page

STATEMENT OF INTEREST 1

STATEMENT OF THE ISSUE 2

STATEMENT OF THE CASE 3

A. Statement of the Facts3

B. District Court’s Decision7

ARGUMENT8

A reasonable jury could find that Nunies fell within the

amended ADA’s definition of regarded-as disabled8

CONCLUSION17

CERTIFICATE OF COMPLIANCE18

ADDENDUM

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases page

Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016) 12

Auer v. Robbins, 519 U.S. 452 (1997) 9

Baker v. Roman Catholic Archdiocese of San Diego,

Civ. No. 3:14-cv-800 (S.D. Cal. June 23, 2016),

appeal pending No. 16-55961 (9th Cir.) 2

Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015) 11

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) 9

Chuang v. Univ. of Cal. Davis, Bd. Of Trustees,

225 F.3d 1115 (9th Cir. 2000) 16

Gribben v. United Parcel Serv., Inc., 528 F.3d 1166 (9th Cir. 2008) 3

Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884 (9th Cir. 2001) 8, 13

Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015) 8

Mercado v. Puerto Rico, 814 F.3d 581 (1st Cir. 2016) 12

Neely v. Benchmark Family Servs., 640 F. App’x 429 (6th Cir. 2016) 12

Nevitt v. U.S. Steel Corp., 18 F. Supp. 3d 1322 (N.D. Ala. 2014) 13

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) 16

Cases (cont’d) page

Rohr v. Salt River Proj. Agric. Imp. & Power Dist., 555 F.3d 850

(9th Cir. 2009) 10

Walton v. U.S. Marshals Serv., 492 F.3d 998 (9th Cir. 2007) 7, 8, 11, 13

Statutes

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. 1

ADA Amendments Act of 2008 (ADAAA)1

ADAAA, Pub. L. No. 110-325, 122 Stat. 3553 (2008),

§§ 2(a)(3)-(8) & (b)(1)-(6) (42 U.S.C. § 12101 note) 10

42 U.S.C. § 12102(1)(A), (B), & (C) 9

42 U.S.C. § 12102(1)(C) 10, 17

42 U.S.C. § 12102(3) 9, 10, 17

42 U.S.C. § 12102(3)(A) 7, 11, 14, 15

42 U.S.C. § 12102(3)(B) 12, 14

42 U.S.C. § 12102(4)(A) 10, 15

42 U.S.C. § 12112(a) 8

42 U.S.C. § 121169

Regulations page

29 C.F.R. § 1630.2(h)(1) 9

29 C.F.R. § 1630.2(j)(2) 12

29 C.F.R. § 1630.15(f) 13

29 C.F.R. pt. 1630, app. § 1630.2(l) 13

Court Rules

Fed. R. App. P. 29(a) 2

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (EEOC or Commission) with interpreting, administering, and enforcing federal laws prohibiting employment discrimination, including the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. In 2008, Congress enacted the ADA Amendments Act (ADAAA) to clarify the ADA’s definition of disability and to reinstate the broad coverage Congress originally intended. Relying on legal standards that predate those amendments, however, the district court here ruled that the plaintiff was neither actually disabled nor regarded as disabled under the Act. In so doing, the court failed to heed the substantial changes to the definition of disability that Congress made in the ADAAA.

The Commission is particularly concerned about the district court’s errors in analyzing the plaintiff’s claim that he was regarded as disabled. The court quoted the ADAAA provision governing regarded-as coverage, but then ignored the amended language and applied a legal standard derived from a decision this Court rendered prior to the ADAAA—a standard that the ADAAA plainly supersedes. Moreover, and significantly, this is not the first district court to acknowledge the 2008 amendments but then apply an outdated regarded-as standard that the ADAAA superseded. Other courts have made the same mistake. See, e.g., Baker v. Roman Catholic Archdiocese of San Diego, Civ. No. 3:14-cv-800 (S.D. Cal. June 23, 2016), appeal pending No. 16-55961 (9th Cir.).

The Commission has a strong interest in ensuring this Court does not adopt the district court’s incorrect analysis on this issue. Because clarifying the standard for ADA regarded-as coverage is crucial to the overall enforcement of the statute, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Did the district court apply the wrong legal standard and reach the wrong result when it ruled that Nunies did not satisfy the ADA’s definition of “regarded as” disability?

STATEMENT OF THE CASE

A. Statement of the Facts [2]

Defendant HIE Holdings hired plaintiff Herman Nunies as a part-time warehouse worker at the company’s Kauai Branch in 2008. Plaintiff’s Excerpts of Records (ER) 16. In 2010 HIE transferred Nunies to a full-time position delivering five-gallon bottles of water. Id. By 2013, Nunies would hear a popping sound in his shoulder, as if two bones were rubbing together, whenever he was lifting and carrying these bottles, and he experienced “stabbing pain” and numbness in his left shoulder when he lifted his left arm above his chest. ER.62-63.

In June 2013, Nunies asked the current part-time warehouse worker, Sidney Aguinaldo, and his manager, Victor Watabu, whether he could swap jobs with Aguinaldo. ER.56; R.26-8 at 3 (PageID#142). Both agreed. ER.56. Watabu contacted HIE’s Honolulu management for approval, and on June 14, Watabu told Nunies that Honolulu had approved the request. Id. Although HIE takes the position in litigation that it had conditioned the approval on reaching agreement with Nunies on several administrative matters, such as pay, R.26 at 3, ¶8 (PageID#124), Nunies maintains there was no discussion about administrative issues, R.29 at 2-3, ¶¶8-9 (PageID#194-95).

On June 17—just three days later—Nunies reported shoulder pain to HIE’s operations manager. ER.57. She told him to notify Watabu, which he did. Id. According to Nunies, Watabu responded that “Honolulu wasn’t going to be happy with him.” R.26-12 (PageID#155); see also ER.47 (Complaint ¶9.C.) (Watabu said “Honolulu is not going to like this.”).

Nunies worked the next two days as usual. See ER.57. After completing his June 19 deliveries, he told Watabu he wanted to see his doctor before his medical benefits ran out. R.26-12 (PageID#155). Watabu left to call Honolulu. When Watabu returned, he told Nunies he could not have the warehouse position, stating that the part-time job no longer existed due to budget cuts. R.26-12 (PageID#155-56); ER.57. Watabu directed Nunies to submit his resignation, but Nunies refused. ER.57.

Nunies saw his doctor on June 20. ER.57. After examining Nunies’s shoulder and wrists, the doctor provided Nunies with a note stating he should remain out of work for the next two weeks. R.26-14 (PageID#160). Nunies faxed the note to HIE. ER.60. In the resulting internal email chain, Watabu asked another HIE manager to obtain “a copy for a job opening for a part-time warehouseman ad,” and a different manager directed Watabu to prepare Nunies’s termination notice. Id.

On June 26, Nunies saw a newspaper advertisement for the part-time warehouse job that he had been told no longer existed because of budget cuts. ER.58. On June 27, Watabu signed Nunies’s termination report, stating the reason for separation as “part-time position not available.”[3] ER.59.

A July 29, 2013, magnetic resonance imaging (MRI) showed Nunies had supraspinatus tendinitis/partial tear. R.26-15 (PageID#161-63). He received medical treatment, including physical therapy, into 2014 while continuing to work in his private landscaping business. R.26-18 (PageID#167-68) (9/10/2014 medical report noting Nunies “has continued work as a self-employed landscaper”). By May 15, 2014, he required no further medical restrictions. R.26-17 (PageID#165-66).

Nunies sued HIE, alleging discriminatory termination and discrimination in the terms, conditions, and privileges of his employment due to his disability in violation of the ADA. ER.44-50. HIE moved for summary judgment. R.25 (PageID#95-96). HIE argued that Nunies did not have an ADA-covered disability, was no longer qualified to do his former delivery job, and had not been subjected to any adverse employment decision because of his disability. R.25-1 (Page ID#107-19).

B. District Court’s Decision[4]

The district court granted HIE summary judgment on the ground that Nunies could not establish he was disabled under any of the ADA’s definitions of disability. The court noted that HIE did not dispute Nunies’s shoulder injury was a physical impairment. ER.32. Instead, HIE argued that Nunies lacked evidence this injury substantially limited him in any major life activity—an argument with which the district court agreed. ER.32-34.

On Nunies’s claim that HIE regarded him as disabled, the court quoted the ADA provision—added in 2008 by the ADAAA—that governs regarded-as coverage. ER.37 (quoting 42 U.S.C. § 12102(3)(A)). The quoted provision states that an individual can satisfy regarded-as coverage “whether or not the impairment limits or is perceived to limit a major life activity.” Id. The court then quoted, and applied, a decision of this Court that pre-dates the 2008 ADA amendments. ER.37-38 (quoting Walton v. U.S. Marshals Serv., 492 F.3d 998, 1006 (9th Cir. 2007)). In that decision, this Court required a plaintiff to produce evidence that the employer regarded him as having an impairment that substantially limited a major life activity. See Walton, 492 F.3d at 1006. The district court stated that Nunies offered neither “direct evidence that [HIE] subjectively believed [he was] substantially limited in a major life activity” nor “evidence that his impairment [was], objectively, a subst antially limiting impairment.” ER.41. On this basis, the court ruled that Nunies failed to establish he was disabled under the regarded-as definition of disability. ER.41-42.

ARGUMENT

A reasonable jury could find that Nunies fell within the amended ADA’s definition of regarded-as disabled.

Nunies alleges that HIE terminated him and discriminated against him in the terms and conditions of his employment due to his disability, in violation of the ADA. ER.48; see 42 U.S.C. § 12112(a). To prevail on this claim, Nunies is required to establish that when HIE rescinded his transfer and terminated his employment, he was an individual with a disability within the meaning of the ADA. See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015) (citing Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001)). Viewed under the proper legal standard, the record evidence amply supports Nunies’s contention that he had a disability at that time.

The ADA provides:

The term “disability” means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

42 U.S.C. § 12102(1)(A), (B), & (C). The ADA does not define “physical or mental impairment,” but the EEOC’s regulations define physical impairment as “[a]ny physiological disorder or condition … affecting one or more body systems, such as … musculoskeletal.” 29 C.F.R. § 1630.2(h)(1).[5]

In 2008, Congress amended the ADA to clarify who is covered under the Act. The goal of the amendments was to carry out the ADA’s original objectives by reinstating the statute’s “broad scope of protection.” See ADAAA, Pub. L. No. 110-325, 122 Stat. 3553 (2008), §§ 2(a)(3)-(8) & (b)(1)-(6) (42 U.S.C. § 12101 note). Among other things, the ADAAA requires the ADA’s “definition of disability” to “be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted” by the terms of the ADA as amended. 42 U.S.C. § 12102(4)(A); see Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 853, 861 (9th Cir. 2009) (acknowledging that the ADAAA “expands the class of individuals … entitled to protection under the ADA” and mandates “disability” to be “broadly construed”).

Of particular importance here, Congress added 42 U.S.C. § 12102(3) to clarify the meaning of regarded-as coverage in § 12102(1)(C) and to override the prior restrictive standard that this Court and others had adopted. Previously, a plaintiff seeking to establish regarded-as coverage under the ADA had to demonstrate both that the employer believed the plaintiff had an impairment and that the employer “subjectively believe[d] that the plaintiff [was] substantially limited in a major life activity” by that real or perceived impairment. See Walton, 492 F.3d at 1006 (emphasis added).

In contrast, the ADA now provides that an individual meets the ADA’s regarded-as definition “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.” 42 U.S.C. § 12102(3)(A) (emphasis added). Although this Court has not yet had occasion to address the standard for regarded-as disability as amended by the ADAAA, the Fifth Circuit recently explained that the “‘whether or not’ language” in § 12102(3)(A) “overrules prior authority requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015).

Other circuits have likewise acknowledged that an employer’s “view of the magnitude of the effect of the perceived impairment on [a plaintiff’s] daily life activities” no longer matters. Mercado v. Puerto Rico, 814 F.3d 581, 588 (1st Cir. 2016). See also Adair v. City of Muskogee, 823 F.3d 1297, 1305-06 (10th Cir. 2016) (same); Neely v. Benchmark Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016) (“In passing the 2008 Amendments, Congress liberalized the standard, redefining ‘regarded as having an impairment’ only to require that a defendant took a prohibited action based on a perceived impairment, regardless of whether the employer thought the impairment was substantially limiting.”). As the EEOC’s regulations further clarify, “Whether an individual’s impairment ‘substantially limits’ a major life activity is not relevant to coverage under … the ‘regarded as’ prong ….”). 29 C.F.R. § 1630.2(j)(2) (emphasis added).

The ADA excludes individuals from regarded-as coverage if the impairment is both transitory (i.e., expected to last six months or less) and minor (which the statute does not define). 42 U.S.C. § 12102(3)(B). This narrow statutory exception, however, is an affirmative defense intended by Congress to encompass such “common ailments” as a cold or the flu. See 29 C.F.R. pt. 1630, app. § 1630.2(l); see also 29 C.F.R. § 1630.15(f) (explaining the affirmative defense). As such, the employer bears the burden of establishing the defense, see Hutton, 273 F.3d at 893, with proof that the impairment is both transitory and minor, Nevitt v. U.S. Steel Corp., 18 F. Supp. 3d 1322, 1332 n.6 (N.D. Ala. 2014).

In this case, the district court quoted the amended definition for regarded-as disability. ER.37. But instead of applying that standard to Nunies’s claim, the court relied on this Court’s pre-ADAAA standard from Walton, 492 F.3d at 1006, to hold that Nunies failed to establish regarded-as coverage because he offered no evidence that HIE viewed him as having an impairment that substantially limited any major life activity. ER.37-41. The district court thus ignored the statute’s plain language in favor of a superseded circuit standard, and granted summary judgment against Nunies for failing to produce evidence that the ADA does not demand. Under the proper inquiry, the court should have asked whether the evidence would permit a jury to find that HIE rescinded Nunies’s transfer to the warehouse position and terminated his employment “because of an actual or perceived physical … impairment” (i.e., his shoulder injury) “whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added).

Had it applied the correct standard, the court would have been compelled to rule that a reasonable jury could find Nunies offered sufficient evidence to establish coverage under the ADA’s regarded-as definition. HIE did not dispute that Nunies had an impairment—his injured shoulder, which a doctor eventually diagnosed as supraspinatus tendinitis/partial tear. ER.32; R.26 (HIE’s Concise Statement of Facts) ¶ 21 (PageID#126); R.26-15 (PageID#161). And although HIE referred below, in passing, to Nunies’s injury as a “temporary, non-chronic impairment of short duration,” R.25-1 at 9-10 (PageID#111-12), the company did not cite § 12102(3)(B) nor make any attempt to carry its heavy burden of proving that Nunies’s shoulder impairment was so “transitory” and “minor” as to be excluded from coverage under this narrow affirmative defense.

Consistent with § 12102(3)(A) and Congress’s explicit directive in § 12102(4)(A) to construe the amended definition of disability in favor of broad coverage, a jury could reasonably find that it was “because of” Nunies’s June 17 disclosure of his shoulder pain to Watabu that HIE, on June 19, rescinded Nunies’s previously-approved transfer to the part-time warehouse job and demanded his resignation instead.

Specifically, Nunies attested that Watabu told him the Honolulu office had approved the transfer. Yet, less than a week later—only two days after Nunies told Watabu that he was experiencing shoulder pain, and the same day he told Watabu that he was going to see a doctor—HIE revoked the transfer approval and directed him to submit his resignation. When Nunies asked why, Watabu told him HIE was eliminating the part-time warehouse job because of budget cuts. See pp.3-4, supra. A jury could reasonably disbelieve this explanation, however, given Watabu’s internal email asking another manager for a copy of a job advertisement for the warehouse position (ER.60) and Nunies’s attestation that he saw the ad published in the newspaper less than a week later (ER.58).

HIE further claimed that Nunies was discharged because the parties could not agree on pay and other administrative details—an explanation the district court apparently credited, see ER.19, but a jury would not have to believe. The explanation conflicts not only with Nunies’s testimony (ER.56-57), but also with the termination report that Watabu signed (ER.59), which states that Nunies resigned (when he says he did not) and identifies the reason for separation as “part-time position not available” (when it plainly still existed). See pp.4-5 & n.3, supra.

Viewing all of this summary judgment evidence in the light most favorable to Nunies, a jury would be entitled to find that HIE rescinded Nunies’s transfer and terminated him because of a shoulder impairment that HIE had learned about only two days before telling Nunies he no longer had a job. See Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (causation may be inferred from timing of events); see also Chuang v. Univ. of Cal. Davis, Bd. Of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (disparate treatment plaintiff can survive summary judgment if evidence raises genuine issue of material fact regarding truth of employer’s proffered reasons). Such a finding would satisfy the ADA’s standard for “regarded as” disability as amended, 42 U.S.C. §§ 12102(1)(C) & (3). The court’s contrary ruling—based on the wrong legal standard—is simply incorrect.

CONCLUSION

For the foregoing reasons, the EEOC respectfully urges this Court to vacate the district court’s grant of summary judgment and to remand this matter for further proceedings under the correct legal standard.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

BARBARA L. SLOAN

Acting Assistant General Counsel

/s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney, Office of General Counsel

Equal Employment

Opportunity Commission

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 2,954 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

/s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

Dated: April 13, 2017

ADDENDUM

42 USCA § 12101 NOTE

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—Congress finds that—

* * * *

(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.

(b) PURPOSES.—The purposes of this Act are—

(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA;

(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;

(3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

(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.

42 U.S.C. § 12102 Definition of disability

As used in this chapter:

(1) Disability

The term “disability” means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

* * * *

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) 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.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

(4) Rules of construction regarding the definition of disability

The definition of “disability” in paragraph (1) shall be construed in accordance with the following:

(A) The 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.

42 U.S.C. § 12112 Discrimination

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12116 Regulations

Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an accessible format to carry out this subchapter in accordance with subchapter II of chapter 5 of Title 5.

29 C.F.R. § 1630.2(h)(1)

(h) 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; ….

29 C.F.R. § 1630.2(j)(2)

(j) Substantially limits—

(2) Non-applicability to the “regarded as” prong. Whether an individual’s impairment “substantially limits” a major life activity is not relevant to coverage under paragraph (g)(1)(iii) (the “regarded as” prong) of this section.

29 C.F.R. § 1630.15 Defenses

(f) Claims based on transitory and minor impairments under the “regarded as” prong. 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 perceived impairment) both transitory and minor. For purposes of this section, “transitory” is defined as lasting or expected to last six months or less.

29 C.F.R. pt. 1630, Appendix – Interpretive Guidance on Title I of the Americans with Disabilities Act

Section 1630.2(l) Regarded as Substantially Limited in a Major Life Activity (excerpt)

Coverage under the “regarded as” prong of the definition of disability should not be difficult to establish. See 2008 House Judiciary Committee Report at 17 (explaining that Congress never expected or intended it would be a difficult standard to meet). Under the third prong of the definition of disability, an individual is “regarded as having such an impairment” if the individual is subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not “transitory and minor.”

This third prong of the definition of disability was originally intended to express Congress’s understanding that “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions.” 2008 Senate Statement of Managers at 9; 2008 House Judiciary Committee Report at 17 (same). In passing the original ADA, Congress relied extensively on the reasoning of School Board of Nassau County v. Arline⁴ “that the negative reactions of others are just as disabling as the actual impact of an impairment.” 2008 Senate Statement of Managers at 9. The ADAAA reiterates Congress’s reliance on the broad views enunciated in that decision, and Congress “believe[s] that courts should continue to rely on this standard.” Id.

Accordingly, the ADA Amendments Act broadened the application of the “regarded as” prong of the definition of disability. 2008 Senate Statement of Managers at 9–10. In doing so, Congress rejected court decisions that had required an individual to establish that a covered entity perceived him or her to have an impairment that substantially limited a major life activity. This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the “regarded as” prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment. Joint Hoyer–Sensenbrenner Statement at 3.

Thus it is not necessary, as it was prior to the ADA Amendments Act, for an individual to demonstrate that a covered entity perceived him as substantially limited in the ability to perform a major life activity in order for the individual to establish that he or she is covered under the “regarded as” prong. Nor is it necessary to demonstrate that the impairment relied on by a covered entity is (in the case of an actual impairment) or would be (in the case of a perceived impairment) substantially limiting for an individual to be “regarded as having such an impairment.” In short, to qualify for coverage under the “regarded as” prong, an individual is not subject to any functional test. See 2008 Senate Statement of Managers at 13 (“The functional limitation imposed by an impairment is irrelevant to the third ‘regarded as’ prong.”); 2008 House Judiciary Committee Report at 17 (that is, “the individual is not required to show that the perceived impairment limits performance of a major life activity”). The concepts of “major life activities” and “substantial limitation” simply are not relevant in evaluating whether an individual is “regarded as having such an impairment.”

To illustrate how straightforward application of the “regarded as” prong is, if an employer refused to hire an applicant because of skin graft scars, the employer has regarded the applicant as an individual with a disability. Similarly, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability.

A “prohibited action” under the “regarded as” prong refers to an action of the type that would be unlawful under the ADA (but for any defenses to liability). Such prohibited actions include, but are not limited to, refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.

Where an employer bases a prohibited employment action on an actual or perceived impairment that is not “transitory and minor,” the employer regards the individual as disabled, whether or not myths, fears, or stereotypes about disability motivated the employer’s decision. Establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability. Liability is established only if an individual meets the burden of proving that the covered entity discriminated unlawfully within the meaning of section 102 of the ADA, 42 U.S.C. 12112.

Whether a covered entity can ultimately establish a defense to liability is an inquiry separate from, and follows after, a determination that an individual was regarded as having a disability. Thus, for example, an employer who terminates an employee with angina from a manufacturing job that requires the employee to work around machinery, believing that the employee will pose a safety risk to himself or others if he were suddenly to lose consciousness, has regarded the individual as disabled. Whether the employer has a defense (e.g., that the employee posed a direct threat to himself or coworkers) is a separate inquiry.

The fact that the “regarded as” prong requires proof of causation in order to show that a person is covered does not mean that proving a “regarded as” claim is complex. While a person must show, for both coverage under the “regarded as” prong and for ultimate liability, that he or she was subjected to a prohibited action because of an actual or perceived impairment, this showing need only be made once. Thus, evidence that a covered entity took a prohibited action because of an impairment will establish coverage and will be relevant in establishing liability, although liability may ultimately turn on whether the covered entity can establish a defense.

As prescribed in the ADA Amendments Act, the regulations provide an exception to coverage under the “regarded as” prong where the impairment on which a prohibited action is based is both transitory (having an actual or expected duration of six months or less) and minor. The regulations make clear (at § 1630.2(l)(2) and § 1630.15(f)) that this exception is a defense to a claim of discrimination. “Providing this exception responds to concerns raised by employer organizations and is reasonable under the ‘regarded as’ prong of the definition because individuals seeking coverage under this prong need not meet the functional limitation requirement contained in the first two prongs of the definition.” 2008 Senate Statement of Managers at 10; See also 2008 House Judiciary Committee Report at 18 (explaining that “absent this exception, the third prong of the definition would have covered individuals who are regarded as having common ailments like the cold or flu, and this exception responds to concerns raised by members of the business community regarding potential abuse of this provision and misapplication of resources on individuals with minor ailments that last only a short period of time”). However, as an exception to the general rule for broad coverage under the “regarded as” prong, this limitation on coverage should be construed narrowly. 2008 House Judiciary Committee Report at 18.

The relevant inquiry is whether the actual or perceived impairment on which the employer’s action was based is objectively “transitory and minor,” not whether the employer claims it subjectively believed the impairment was transitory and minor. For example, an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor. At the same time, an employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor.”

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CERTIFICATE OF SERVICE

I, Susan R. Oxford, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 13th day of April, 2017. I further certify that, upon notification from the Clerk’s Office that the brief has been accepted, I will file seven (7) copies of the foregoing brief with the Court by commercial delivery, postage pre-paid. I also certify that all counsel of record are registered CM/ECF users of this Court and that service will be accomplished by the appellate CM/ECF system on April 13, 2017.

[1] The Commission takes no position on any other issue in this appeal.

[2] Because this is an appeal from the district court’s grant of summary judgment, this Court views the summary judgment evidence in the light most favorable to Nunies, the nonmovant below. Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1169 (9th Cir. 2008). The Commission, in this Statement of the Facts, does the same.

[3] After HIE fired Nunies, he applied for unemployment benefits. See R.26-12 (PageID#154-58). The State Unemployment Insurance Division interviewer asked HIE why the company ran a newspaper ad on June 26 for a part-time warehouse position, given that Nunies said Watabu had told him the position was no longer available due to budget cuts and the termination report that Watabu signed (ER.59) stated “part-time position not available.” R.26-12 at 4 (PageID#157). HIE’s representative explained that “[i]t was not that the [part-time] position wasn’t available, it’s that it wasn’t available to [Nunies] anymore.” Id. (emphasis added).

[4] The Commission summarizes only the portions of the district court’s decision relevant to the issue the Commission addresses in this brief.

[5] Because Congress expressly delegated rulemaking authority to the EEOC under Title I of the ADA, 42 U.S.C. § 12116, these regulations are entitled to deference. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984); Auer v. Robbins, 519 U.S. 452, 462-63 (1997).