Third Circuit Clarifies Requirements for “Regarded As” ADA Claims
In Eshleman v. Patrick Industries, the United States Court of Appeals for the Third Circuit issued a significant decision concerning claims brought under the American With Disabilities Act (ADA) by employees alleging their employers perceived them to be disabled. The decision clarifies the pleading requirements in such cases and explains the ADA provision that exempts employers from liability for disabilities that are “transitory and minor.” Notably, the Court did not provide a specific definition of a “minor” disability, leaving that determination for the lower courts on a case-by-case basis.
William Eshleman took leave from his job as a truck driver for Patrick Industries to have a module removed from his lungs. Six weeks after he returned to work he suffered a severe respiratory infection and was out of work for four days. Patrick Industries terminated his employment after his second shift back to work. At various times, the employer gave Eshleman different reasons for his termination.
Eshleman brought suit alleging the shifting reasons for his termination were pretextual and the true reason was that his employer regarded him as disabled in violation of the ADA. The perceived disability was alleged to be that he “suffered from [a] long-term or chronic medical condition which would affect his attendance in the future, like it had in the immediate past, due to what they perceived as continuing medical issues” making him “unreliable, a liability, and unable to perform a wide range of jobs.”
Under the ADA, an employee is disabled when he/she (1) has a physical or mental impairment that substantially limits one or more of major life activities; (2) has a record of such an impairment; or (3) is “regarded as having such an impairment.” 42 U.S.C. § 12102(1). As explained by the Court, an employer regards a person as disabled when it “misinterpret[s] information about an employee’s limitations to conclude that the employee is incapable of performing his or her job requirements.” “Regarded as” claims, however, cannot be premised on impairments that are only “transitory and minor.” Id. at § 12102(3)(B). The ADA defines “transitory” as “an impairment with an actual or expected duration of six months or less,” but does not define “minor.” Id.
In the District Court, Patrick Industries moved to dismiss Eshleman’s complaint on the grounds that it alleged a perceived impairment that amounted only to a “transitory and minor” impairment. The district court granted the motion. Although the court ruled that the short period of time between Eshleman’s leave of absence and his termination was sufficient to establish a “regarded as” claim, it was clear on the face of the complaint that the alleged disability lasted less than six months and thus constituted a “transitory and minor” impairment, excluding the impairment from one covered by the ADA.
The Third Circuit’s Opinion
The Third Circuit recognized that although it had suggested in prior cases that the exemption from ADA coverage for “transitory and minor” impairments constituted an affirmative defense, the Court now held that “a regarded-as plaintiff alleging a transitory and minor impairment has failed to state a legally sufficient claim, even if the employer does not include a transitory and minor defense in its Answer.” In other words, when it is clear from the complaint that the alleged disability is transitory and minor the complaint should be dismissed.
“Transitory” and “Minor” are Separate Elements
Eshleman conceded his surgery and severe upper respiratory infection were transitory impairments because they lasted less than six months. He argued, however, that the district court, should have separately evaluated whether his impairment was “minor.” The Third Circuit agreed. The Court noted the ADA does not expressly provide a durational definition for “minor” impairments and that the ADA regulations and the EEOC’s interpretive guidance make clear that an employer must establish that the perceived impairment is objectively both transitory and minor and that an impairment is not “minor” simply because it lasts for less than six months. In addition, the Court reasoned that consideration of “minor” and “transitory” as separate requirements would be consistent with the intent of the ADA Amendments Act of 2008 to expand ADA coverage. As the District Court in Eshleman’s case had not considered the issue of whether Eshleman had pleaded only a “minor” impairment, the Court reversed the dismissal of Eshleman’s “regarded as” claim and remanded the case for further consideration.
The Definition of “Minor”
The term “minor” is not defined in statute, and the Third Circuit did not provide one, leaving the lower courts to approach the issue on a case-by-case basis. As far as Eshleman’s case was concerned, the Court ruled the District Court “should have considered such factors as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary—as well as the nature and scope of any post-operative care … even if the impairment has an anticipated recovery time of two months and is therefore ‘transitory.’ Because even minimally invasive lung surgery is still thoracic surgery, more than likely requiring inpatient care, it is plausible that Eshleman’s lung surgery was non-minor.” The Court also noted Eshleman set forth “plausible allegations that Patrick Industries regarded his series of recent medically-related absences as signs of a continuing medical condition that essentially rendered him damaged goods and therefore unemployable.” Given the Court’s view of Eshleman’s allegations, it is difficult to imagine that on remand the District Court will again find that a viable “regarded as” ADA claim had not been pleaded.
In light of the Eshleman decision, employers should be wary of discounting potential or asserted perceived disability claims simply because the disability was of short duration. The decision reinforces the need for employers to prepare and maintain detailed documentation supporting the performance or business reasons for any employment action impacting a potential plaintiff.
If you have questions about this blog, feel free to contact an attorney in the Gibbons Employment & Labor Law Department.