A PROMISING START:
 

PRELIMINARY ANALYSIS OF COURT DECISIONS UNDER THE ADA
 

AMENDMENTS ACT 

NATIONAL COUNCIL ON DISABILITY 

July 23, 2013 
 National Council on Disability 

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families. 

Letter of Transmittal 

July 23, 2013 

The President 

The White House 

Washington, DC 20500 

Dear Mr. President, 

The National Council on Disability (NCD) is pleased to submit the enclosed report, “A 

Promising Start: Preliminary Analysis of Court Decisions Under the ADA Amendments 

Act.” As the name suggests, a review of the court decisions that have been rendered to 

date applying the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) 

reveals significant improvements in how courts are interpreting the broad coverage 

mandate of the Americans with Disabilities Act. 

In 2004, NCD released "Righting the ADA,"- a report that analyzed all of the U.S. 

Supreme Court decisions interpreting the Americans with Disabilities Act (ADA) as of 

that time. http://www.ncd.gov/newsroom/publications/2004. 

Since enactment of the ADA in 1990, courts had made substantial changes to the law, 

including narrowing the definition of disability so extensively, that many people with 

disabilities were no longer protected from disability-discrimination. In most ADA 

employment discrimination cases, courts focused primarily on whether an individual’s 

impairment constituted a disability, often never reaching the question of whether 

disability discrimination had occurred. 

Based on our findings, NCD called for an ADA Restoration Act to restore the law to its 

original scope. The ADAAA was signed into law on September 25, 2008 and went into 

effect January 1, 2009. The ADAAA emphasizes that the definition of disability should 

be construed in favor of broad coverage of individuals to the maximum extent permitted 

by the terms of the ADA. 

The ADAAA overturned several Supreme Court decisions that Congress believed had 

interpreted the definition of “disability” too narrowly, resulting in a denial of protection for 

many individuals with impairments such as cancer, diabetes, or epilepsy. The ADAAA 

states that the definition of disability should be interpreted in favor of broad coverage of 

individuals. 

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The effect of the changes was intended to make it easier for an individual seeking 

protection under the ADA to establish that he or she has a disability within the meaning 

of the ADA and shift the focus away from determining whether someone had a disability 

to determining whether disability discrimination had occurred. 

NCD has just completed a review and analysis of the case law that has developed 

under the ADAAA to determine whether the ADAAA has achieved its intended goals 

and to provide recommendations for improvements or corrective action, as necessary. 

The report contains 23 findings and three recommendations regarding ongoing 

monitoring and analysis of cases applying the ADAAA and educational and training 

initiatives for judges, attorneys, and other advocates. 

The central message from the review of the case law is that, in the decisions rendered 

so far, the ADAAA has made a significant positive difference for plaintiffs in ADA 

lawsuits. In six of the seven Circuit Court decisions in which the provisions of the 

ADAAA were applied, the plaintiff prevailed on the issue of establishing a disability; and 

in the district court decisions analyzed in cases under the ADAAA, plaintiffs prevailed on 

the showing of disability in more than three out of four decisions – a promising start and 

a substantial improvement over pre-ADAAA decisions in achieving the broad scope of 

ADA coverage that Congress intended. This does not necessarily mean that more 

plaintiffs are winning their disability discrimination suits. Often the poor quality of the 

pleadings is resulting in cases being dismissed on procedural grounds - before the 

alleged discriminatory conduct of the employer is ever addressed. The report includes 

recommendations on guidance and technical assistance to address some of these 

procedural issues. 

NCD looks forward to working with the Administration to continue monitoring 

implementation of the ADAAA and to assist in the development of programs for 

providing high quality information and training on the ADA for judges, attorneys, and 

advocates. 

 

Respectfully, 

Jeff Rosen, Chair 

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National Council on Disability Members and Staff 

Members 

Jeff Rosen, Chair
 

Kamilah Oni Martin-Proctor, Co-Vice Chair
 

Lynnae Ruttledge, Co-Vice Chair
 

Gary Blumenthal
 

Chester A. Finn 

Sara Gelser 

Matan Aryeh Koch
 

Captain Jonathan F. Kuniholm, USMC (Retired)
 

Stephanie Orlando
 

Ari Ne’eman 

Janice Lehrer-Stein 

Clyde E. Terry
 

Fernando M. Torres-Gil, Ph.D.
 

Alice Wong
 

Pamela Young-Holmes
 

Staff 

Rebecca Cokley, Executive Director 

Stacey S. Brown, Staff Assistant 

Julie Carroll, Senior Attorney Advisor
 

Lawrence Carter-Long, Public Affairs Specialist
 

Joan M. Durocher, General Counsel & Director of Policy
 

Geraldine-Drake Hawkins, Ph.D., Senior Policy Analyst
 

Sylvia Menifee, Director of Administration
 

Robyn Powell, Attorney Advisor
 

Anne Sommers, Director of Legislative Affairs & Outreach
 

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Acknowledgment 

The National Council on Disability (NCD) wishes to express its appreciation to Professor 

Robert L. Burgdorf Jr. of the University of the District of Columbia, David A. Clarke 

School of Law, for drafting this report. 

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Contents 

EXECUTIVE SUMMARY 

I. INTRODUCTION 

II. PROBLEMATIC RULINGS, “ADA RESTORATION,” AND THE ADAAA 

III. PURPOSE AND SCOPE OF THE REPORT 

IV. ANALYSIS OF CIRCUIT COURT DECISIONS 

A. Timing of the ADAAA’s Applicability 

1. Retroactive Application?

2. Whether the ADAAA Was in Effect 

B. Circuit Courts’ Views of the Impact of the ADAAA 

C. Circuit Court Decisions in Which the ADAAA Was Applied 

1.	 Brown v. City of Jacksonville 

2. Wolfe v. Postmaster General 

3. Allen v. SouthCrest Hosp. 

4. Jenkins v. National Bd. of Medical Examiners 

5. Hilton v. Wright 

6. Nasious v. Colorado 

7. McElwee v. County of Orange 

V. ISSUE-BY-ISSUE ANALYSIS OF FEDERAL COURT DECISIONS DISCUSSING 

THE ADAAA 

A. General Re-Broadening of ADA Coverage 

B. Major Life Activities, Major Bodily Functions, and “Predictable 

Assessments” of Disability 

C. Mitigating Measures 

D. Transitory, Episodic, or In-Remission Impairments 

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E. Regarded As 

1. Overall Breadth of the “Regarded As” Prong 

2. Revised Focus of “Regarded As” Showing 

3. Exclusion of “Transitory and Minor” Impairments 

4. No Reasonable Accommodation Requirement under the Regarded As 

Prong 

V. ASSESSMENT OF OVERALL OUTCOMES AND SPECIFIC CONCERNS 

A. Overall Case Results 

B. Focus and Extent of Analysis of Disability 

C. Individualized Assessment 

D. Deficient Pleadings and Flawed Litigation 

E. Potentially Emergent Ancillary Issues 

VI. RECOMMENDATIONS 

APPENDIX 

ENDNOTES 

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EXECUTIVE SUMMARY 

The ADA Amendments Act (ADAAA) was enacted in 2008 and took effect on January 1, 2009. 

Since that time, the judicial system has begun to hear and decide disability discrimination 

lawsuits raising questions under the new law. This report grew out of NCD’s recognition of the 

emerging need for review and analysis of the court decisions that have developed under the 

ADAAA to ascertain whether the Amendments Act has thus far achieved its intended goals. 

Accordingly, NCD conducted a review and analysis of the case law that has developed under 

the ADAAA and prepared a report on the findings as to whether the ADAAA has achieved its 

intended goals. The report provides recommendations for improvements or corrective action, 

as necessary.” From the project’s inception, NCD recognized that not enough time has elapsed 

since the ADAAA took effect for the drawing of firm and definitive conclusions, but was 

convinced that present analysis of court decisions rendered to date would produce a sense of 

the law’s current status and provide a preliminary bellwether of trends and directions in which 

the law is heading. 

This report presents 23 findings providing both a summary of the overall results of the court 

decisions and a detailed legal analysis of how the courts have responded to major revisions 

made by the ADAAA. The decisions of the United States Courts of Appeals are discussed first, 

followed by the decisions of the United States District Courts. The findings in the report address 

the judicial landscape with regard to many important aspects of how a person who claims to 

have been subjected to discrimination on the basis of disability demonstrates that she or he has 

a disability under the standards established by Congress in the ADAAA. The central message 

from the review of the case law is that, in the decisions rendered so far, the ADAAA has made a 

significant positive difference for plaintiffs in ADA lawsuits. In six of the seven Circuit Court 

decisions in which the provisions of the ADAAA were applied, the plaintiff prevailed on the issue 

of establishing a disability; and in the district court decisions analyzed in cases under the 

ADAAA, plaintiffs prevailed on the showing of disability in more than three out of four decisions 

– a substantial improvement over pre-ADAAA decisions in achieving the broad scope of ADA 

coverage that Congress intended. 

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Listed below are NCD’s findings, followed by three recommendations regarding ongoing 

monitoring and analysis of cases applying the ADAAA and educational and training initiatives 

for judges, attorneys and other advocates. 

NCD FINDINGS: 

Finding 1: The decisions of the United States Courts of Appeals reflect a strong consensus 

that the ADAAA does not apply to ADA claims in which the alleged acts of discrimination 

occurred prior to January 1, 2009, when the ADAAA took effect; a few courts have recognized 

narrow exceptions to this general rule for situations in which: (A) a plaintiff is seeking 

prospective injunctive relief, such as compelling a covered entity to provide an accommodation 

in the future; or (B) a court considers provisions of the ADAAA for the purpose of shedding 

light on the original intent of Congress when it enacted the ADA. 

Finding 2: In regard to cases raising ADAAA, issues that are making their way through the 

courts, it is still the early days: in only 10 percent of Courts of Appeals’ decisions mentioning 

the ADAAA to date the court has found that the ADAAA was in effect when the alleged 

discriminatory actions took place, and in one-third of the cases in which the court found the 

ADAAA was in effect, the court did not apply the ADAAA. 

Finding 3: Many of the Courts of Appeals’ decisions in which the courts found that the 

ADAAA was not in effect have nevertheless included descriptions of the Act’s purpose, 

content, and implications in a manner that conveys awareness and understanding of, and 

receptivity toward, the changes in the law that the ADAAA entails. 

Finding 4: Research disclosed only seven decisions so far in which Courts of Appeals have 

both found the ADAAA to be in effect and had occasion to apply it. These included three cases 

involving employment discrimination claims, one addressing a requested accommodation on a 

medical licensing examination, two dealing with prisoners’ claims of deficient medical 

treatment in state prisons, and one claim of discrimination in a volunteer program at a county 

rehabilitation center. 

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Finding 5: The numbers of pertinent circuit court decisions remain too small to draw any 

broad or authoritative conclusions. The most striking revelation about the seven cases, 

however, was that in six out of the seven the plaintiff prevailed on the issue of having a 

disability at the stage of the proceedings before the appellate court. This can be viewed as an 

early indication of a positive turnaround in outcomes on the definition-of-disability issue 

attributable to the ADAAA. 

Finding 6: In Allen v. SouthCrest Hosp., the one case out of seven in which the plaintiff did 

not prevail on the showing of disability, the Tenth Circuit took a more exacting and critical look 

at the plaintiff’s showing of a disability – an approach that, in disregarding the ADAAA’s 

guidance supporting a broader, less restrictive approach to the elements of “disability” and the 

avoidance of “extensive analysis,” harkened back to pre-ADAAA scrutiny of a plaintiff’s claim of 

having a disability. Whether this decision will have a regressive effect on future decisions is a 

matter of concern to which close attention will should to be paid. 

Finding 7: In approximately four out of five of the federal district court decisions analyzed 

methodically, the court found the ADAAA was in effect at the time the alleged discriminatory 

actions took place; this is in sharp contrast to the small percentage of cases that have made 

their way to the Courts of Appeals in which the courts have found that the ADAAA was in 

effect. Among the district court decisions in which the ADAAA was found to be in effect, about 

90% involved claims of employment discrimination. 

Finding 8: The decisions of the district courts under the ADAAA reflect widespread 

awareness of, and receptivity to, the statutory mandate for interpreting coverage of the ADA 

broadly. Many are replete with statements of judicial recognition and affirmation of the 

expansion-of-coverage first principle of the Act, and of a number of the elements established in 

the Act and the regulations for broad construction of “substantially limiting a major life activity.” 

Finding 9: With occasional exceptions, the decisions of the district courts under the ADAAA 

have recognized and applied changes to the “major life activities” element of the definition of 

disability made by the Act in (1) decreasing the restrictiveness of standards for inclusion of an 

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activity in the category, (2) providing a non-exhaustive list of example of major life activities, 

and (3) incorporating a new category of “major bodily functions.” The “major bodily functions” 

provision is a major addition to the ADA, and so far seems to be accomplishing much of what it 

was intended by Congress to do in engendering more expansive coverage, 

Finding 10: The EEOC’s issuance in its ADAAA regulations of a non-exhaustive list of 

conditions that are virtually always disabilities, for which individualized assessment should be 

particularly simple and straightforward, has generally been embraced by the courts. To date, 

plaintiffs having, among a variety of other conditions, post-traumatic stress disorder 

(substantially limits the major bodily activity of brain function), cancer (substantially limits 

normal cell growth), multiple sclerosis (substantially limits neurological functions), and HIVpositive status (substantially limits immune system function) have successfully availed 

themselves of the “virtually always” status in court. 

Finding 11: Revisions under the ADAAA relating to broadening the list of examples of major 

life activities, incorporating major bodily functions, and developing a non-exhaustive list of 

conditions for which there should be “predictable assessments” of disability are not selfevident, but somewhat challenging. Although the courts have made a good start, routine 

acceptance and mastery by courts and attorneys of these innovations will likely not occur 

easily or quickly. Additional judicial and professional education efforts devoted to these matters 

would greatly facilitate their broader dissemination and application. 

Finding 12: The ADAAA statutory revision regarding consideration of mitigating measures is 

unequivocal and not particularly complicated, and the courts generally have had little trouble 

reincorporating into the legal framework for analyzing ADA claims the pre-Sutton principle that 

mitigating measures shall not be considered in determining disability. In a few cases, courts 

that have complied with the ADAAA requirement that mitigating measures are not to be taken 

into account in determining disability have clarified that it carries with it an obligation for 

plaintiffs to make some showing of the impact of major life activities on the plaintiff’s condition 

in the absence of mitigating measures. 

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Finding 13: The emerging case law regarding the ADAAA provision decreeing that an 

impairment that is episodic or in remission constitutes a disability if it would substantially limit a 

major life activity when active generally appears to have begun to have its desired effect in the 

courts. Of the few cases examined that addressed this issue under the ADAAA, most relied on 

the provision in allowing plaintiffs to prevail on the issue of pleading a disability when they had 

conditions with only intermittent effect upon activities. 

Finding 14: The new EEOC regulatory provision recognizing that an impairment lasting fewer 

than six months might in some circumstances constitute a disability under the ADA did not take 

effect until May 24, 2011, with the result that there are insufficient court decisions to date from 

which to draw analytical conclusions. However, the decision of a federal district court in Green 

v. DGG Properties Co., Inc. raises a concern that some courts might blunt the effect of the 

provision and revive pre-ADAAA views about rejecting short-term impairments as disabilities. 

This issue should be closely monitored in future decisions to determine whether steps are 

needed to avoid a resurrection of overly exacting duration standards for substantially limiting 

impairments. 

Finding 15: The ADAAA’s articulation of a general broadening of the third prong of the 

definition of disability, including rejecting the Supreme Court’s reasoning in Sutton v. United Air 

Lines, Inc., regarding it, and reinstating in its place the Court’s reasoning in School Board of 

Nassau County v. Arline, has not been the subject of much judicial commentary or elaboration, 

but the court decisions have referred to, quoted, and seemingly accepted that direction. 

Finding 16: The ADAAA revision that changes the focus of being regarded as having an 

impairment to whether the individual has been subjected to an action prohibited by the ADA 

because of an actual or perceived impairment represents a profound alteration of analysis 

under the ‘regarded as prong’, with major implications for pleading, evidence, argument, and 

judicial resolution. Perhaps because the revision replaced a thorny and complicated 

determination with a more straightforward one, the courts seem to have absorbed and applied 

it rather smoothly. The new standard has been applied to allow plaintiffs to successfully make 

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a prima facie case that they have been regarded as having a disability in quite a number of 

court decisions. 

Finding 17: The exclusion of “transitory and minor” impairments in analysis of allegations of 

disability under the regarded as prong of the definition of disability is an important ADAAA 

mandate. While the provision of the Act making this change is relatively clear and simple, the 

courts have not always interpreted and applied it in a manner consistent with its plain 

language. A worrisome line of cases has developed in which the courts have looked only to the 

issue of duration of the impairment in question, and have ignored the “and minor” words of the 

statute. The continuing development of case law in this area should be monitored closely to 

see how significant a problem this may portend. 

Finding 18: The ADAAA’s elimination of the obligation of entities covered under the ADA to 

provide reasonable accommodations or reasonable modifications to people who meet the 

definition of disability only under the “regarded as” prong is a major change. The statutory 

change is straightforward and clear-cut, and, so far, the court decisions interpreting and 

applying it generally do so in an uncomplicated manner. In addition to describing and quoting 

the statutory elimination of the accommodation/modification obligation, some courts have 

noted that, because reasonable accommodation is not available to a plaintiff alleging disability 

exclusively under the regarded-as prong, if such a plaintiff cannot perform essential job duties 

without accommodation, she or he will be deemed not qualified for the job. As time goes by, 

such considerations can be expected to have a growing impact on legal pleading and litigation 

strategies. 

Finding 19: Assessment of overall outcomes in court decisions interpreting and applying the 

ADAAA shows that the Act has had a dramatic impact in improving the success rates of 

plaintiffs in establishing disability. In cases in which district courts applied provisions of the Act, 

plaintiffs prevailed on the showing of disability in more than three out of four decisions – a 

significant improvement over pre-ADAAA decisions. This very positive development is 

tempered by the recognition that many plaintiffs who prevailed on establishing a disability still 

lost their cases on other grounds. 

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Finding 20: The courts have made progress in complying with ADAAA directives that 

determinations whether an individual’s impairment is a disability under the ADA “should not 

demand extensive analysis,” although the progress is uneven and some decisions continue to 

reflect considerable analytical parsing. As to the related question of whether courts have 

shifted their analytical focus, particularly in employment discrimination cases, away from 

determining whether an individual has a disability, to determining whether disability 

discrimination occurred, the courts’ decisions evidence a shift in that direction, but some courts 

still spend considerable time and energy on the medical and other details and circumstances 

of an individual's impairment. 

Finding 21: In making determinations of disability in ADA actions, the courts have fairly 

consistently based decisions on individualized assessments of substantial limitation of major 

life activities. Some ADAAA revisions have reduced the need for individualization to a degree 

by making it easier for some types of impairments to be recognized as disabilities. 

Finding 22: In more than a few cases in which individuals who claimed to have been subject 

to discrimination on the basis of disability have not succeeded in establishing that they had a 

legally cognizable disability, or otherwise did not prevail in their legal actions, their chances for 

a favorable outcome were squandered by substandard, sometimes dismal, legal pleadings and 

briefs on their behalf. The likelihood of such plaintiffs having a fair “day in court” could be 

significantly enhanced by the development and proliferation of high quality continuing 

education and training programs for attorneys and other advocates for people with disabilities. 

Finding 23: In addition to examining how well the courts are carrying out the spirit and 

applying the specific provisions of the ADAAA, it will be important to monitor certain additional 

issue areas, incident to the Act and its implementation, that, depending upon the direction the 

court decisions take, have the potential to cause significant problems. Three such issues are 

(1) how the factor of duration affects the determination of whether an impairment does or does 

not constitute a disability under the ADA; (2) application of the ADAAA provision freeing 

covered entities from the obligation to provide reasonable accommodations or reasonable 

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modifications for individuals who meet the definition of disability only under the “regarded as” 

prong; and (3) the role of the major life activity of working and the application of the “class of 

jobs or broad range of jobs” standard in determining whether an impairment substantially limits 

it. 

RECOMMENDATIONS: 

Recommendation 1: Led by the primary ADA enforcement agencies charged with 

implementing the requirements of the ADA – the Department of Justice, the Equal Employment 

Opportunity Commission, and the Department of Transportation – in conjunction with NCD, 

agencies of the federal government should maintain and systematize ongoing monitoring and 

analysis of court decisions interpreting and applying the changes in the law made by the 

ADAAA. 

Recommendation 2: The Department of Justice and the Equal Employment Opportunity 

Commission, in conjunction with NCD, should organize, facilitate, and systematize programs 

for providing high quality information and training for judges regarding the content and 

implications of the revisions to ADA law made by the ADAAA. 

Recommendation 3: The Department of Justice and the Equal Employment Opportunity 

Commission, in conjunction with NCD, should organize, facilitate, and systematize high quality 

continuing education and professional education programs for attorneys and other advocates 

regarding the content and implications of the revisions to ADA law made by the ADAAA. 

15
 
I. INTRODUCTION 

[T]he Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation 

that so many people with disabilities find themselves in today. For example, the more 

successful a person is at coping with a disability, the more likely it is the Court will find 

that they are no longer disabled and therefore no longer covered under the ADA. If 

they are not covered under [the] ADA, then any request that they might make for a 

reasonable accommodation can be denied. If they do not get the reasonable 

accommodation, they cannot do their job; and they can get fired and they will not be 

covered by the ADA and they will not have any recourse. 

Statement of Senator Tom Harkin during Senate consideration of S. 3406, Sept 11, 

2008.1 

[W]hen it comes to legislation, when Congress does not like something, Congress 

can change it, and that is what we are doing today. 

The authority over Federal disability policy remains right here with the Congress, and 

it is our responsibility to establish, change, expand, redirect, or amend it whenever 

and however we see fit. That is what we are doing today with this bill. 

Statement of Senator Orrin Hatch during Senate consideration of S. 3406, Sept 11, 

2008.2 

For over a decade, the courts have narrowed the scope of the ADA and have thereby 

excluded many individuals whom Congress intended to cover under the law. The 

unfortunate impact of too narrow an interpretation has been to erode the promise of 

the ADA. 

With the passage of the ADA Amendments Act (ADAAA) today, we ensure that the 

ADA’s promise for people with disabilities will be finally fulfilled. Our expectation is 

that this law will afford people with disabilities the freedom to participate in our 

community, free from discrimination and its segregating effects, that we sought to 

achieve with the original ADA. 

Joint Remarks of Representative Steny Hoyer and Representative Jim 

Sensenbrenner on S. 3406, Sept. 17, 2008.3 

Like the Americans with Disabilities Act of 1990 (ADA), the ADA Amendments Act of 2008 

(ADAAA) had its origin in a recommendation of the National Council on Disability (NCD) in a 

report to the President and the Congress. The ADA was first proposed (and named) in NCD’s 

1986 report Toward Independence and first appeared in draft form in NCD’s 1988 report On the 

Threshold of Independence. The ADAAA originated in a proposal and draft bill contained in 

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NCD’s Righting the ADA report (2004).4 Righting the ADA was the culmination of in-depth 

analysis by NCD of the Supreme Court’s interpretations of the ADA, in which the Council found 

that some of the Court’s rulings on the ADA departed from the core principles and objectives of 

the ADA. As NCD explained in the transmittal letter to the President accompanying the report, it 

had concluded that 

the provisions of the ADA that have been narrowed by Court rulings currently do not 

provide the same scope of opportunities and protections expressed by those involved 

in the creation and passage of the ADA. Legislation is urgently needed to restore the 

ADA to “assure equality of opportunity, full participation, independent living, and 

economic self-sufficiency” for Americans with disabilities. 

II. PROBLEMATIC RULINGS, “ADA RESTORATION,” AND THE ADAAA 

In its 2004 Righting the ADA report, NCD joined a chorus of voices of members of 

Congress from both parties, the White House, disability rights scholars, legal advocates, 

and numerous other people, including many with disabilities, who had been protesting that 

the Supreme Court was severely undercutting the rights under the ADA of people with 

disabilities. NCD had been methodically monitoring the Supreme Court’s ADA decisions, 

and published a series of policy briefs, available on NCD’s website at 

http://www.ncd.gov/newsroom/publications/2003/policybrief.htm , describing the particular 

issues and problems the Supreme Court rulings raised. NCD found that some, though not 

all, of the Court’s rulings had dashed positive expectations at the time of the passage of the 

ADA. Particularly problematic were the Court’s rulings pertaining to the definition of 

disability. The culmination of a series of decisions in which it narrowed eligibility for 

protection under the ADA was the Court’s ruling in Toyota Motor Manufacturing, Kentucky, 

Inc. v. Williams in 2002 that the definition of disability should be “interpreted strictly to 

create a demanding standard for qualifying as disabled.”5 In Righting the ADA, NCD 

presented a legislative proposal for getting the ADA back on course – an ADA Restoration 

Act bill – with an explanatory introduction and a section-by-section summary. Based on 

elements of NCD’s proposals regarding the definition of disability, ADA Restoration Act bills 

were introduced in the 109th and 110th Congresses.6 After negotiations with 

representatives of the business community, substantial compromises were made, and an 

amendment in the nature of the substitute was agreed to in committee. Because the 

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substitute bill had some substantial differences from the original NCD ADA Restoration Act 

proposal, the name of the legislation was changed to the ADA Amendments Act. The 

compromise bill was signed into law on September 25, 2008. The content of the ADAAA is 

described in some detail by the managers of the ADAAA bill in the Senate in a statement 

inserted into the Congressional Record as the bill was nearing passage.7

 Most of the major 

provisions of the ADAAA are described and discussed in sections IV and V of this report. 

III. PURPOSE AND SCOPE OF THE REPORT 

This report grew out of NCD’s recognition of the emerging need for review and analysis of the 

court decisions that have developed under the ADAAA to ascertain whether the Amendments 

Act has thus far achieved its intended goals. Accordingly, NCD undertook: “to review and 

analyze case law that has developed under the ADAAA and produce a paper that will report 

findings, determine whether the ADAAA has achieved its intended goals, and provide 

recommendations for improvements or corrective action, as necessary.” In light of the particular 

problems that had developed in job discrimination cases prior to the ADAAA that the Act sought 

to address, NCD identified employment discrimination rulings as a predominant focus of the 

study. From the project’s inception, NCD recognized that not enough time has elapsed since the 

ADAAA took effect to draw firm and definitive conclusions, but was convinced that an 

examination of court decisions rendered to date would produce a sense of the current situation 

and provide a preliminary indication of trends and directions in which the law is heading. 

Exhaustive quantitative analysis of the universe of relevant court decisions will hopefully be 

conducted by scholars and public agencies in the future, and such comprehensive statistical 

studies can be expected to yield invaluable information about the implementation and efficacy of 

the ADAAA and its various significant provisions. That type of elaborate and extensive data 

compilation is beyond the scope and time constraints of this report. The Council’s current study 

represents instead an informed legal analysis of a substantial and representative portion of 

federal court decisions to date.8 

A search of decisions of the federal courts at the beginning of June, 2013, disclosed that to 

date, no U.S. Supreme Court opinions have mentioned the Act, and otherwise the ADAAA had 

18
 
 

 

been mentioned in 925 decisions. These consisted of 115 decisions by the United States Courts 

of Appeals (circuit courts) and 810 decisions by federal district courts. The analysis of each of 

these categories – circuit court decisions and district court decisions – and findings NCD has 

derived from them are described in the sections that follow. For each of the judicial decisions 

analyzed, an initial determination was made as to whether the court had found that the ADAAA 

was in effect at the time of the actions giving rise to the legal claims. For decisions in which the 

courts found the ADAAA to be applicable, the decisions were separated into two groups – those 

that involved claims of employment discrimination and those that addressed other types of 

alleged actions of discrimination. As described in more detail in subsequent sections, the 

majority of the cases dealt with discrimination in employment. Pertinent decisions were then 

scrutinized to ascertain the extent to which they did or did not respond to and comply with the 

spirit and letter of the various elements of the ADAAA. The results and the findings of this 

analysis are articulated in the sections that follow. 

IV. ANALYSIS OF CIRCUIT COURT DECISIONS 

Decisions by the 13 United States Courts of Appeals (circuit courts) manifestly occupy a highly 

important place in the American federal court system. They constitute legally binding precedent 

on district courts within each particular circuit, establishing the law applicable to millions of 

people within the circuit; they provide persuasive authority for other courts at both the appellate 

and trial level; and they articulate and chronicle the development of emerging doctrines and 

approaches in judicial thinking. Because of their significance, all 115 of the circuit decisions in 

which the court mentioned the ADAAA were examined and analyzed. 

A. Timing of the ADAAA’s Applicability 

Cases interpreting and applying the ADAAA are at the early stages of making their way through 

the judicial system. The ADAAA was signed into law on September 25, 2008; its Section 8 

declares that “[t]his Act and the amendments made by this Act shall become effective on 

January 1, 2009.”9

 Many ADAAA actions filed or pending in the courts since the Act went into 

effect have involved claims arising prior to its effective date. 

1. Retroactive Application? 

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An initial question with many statutes is whether they apply retroactively. The ADAAA’s 

statutory language does not mention retroactive application. When the federal courts of appeals 

have addressed this issue, they have responded virtually unanimously that the Act shall not be 

applied to claims arising prior to its effective date. Twelve of the 13 circuits have ruled against 

retroactive application of the ADAAA,10 and the Court of Appeals for the Federal Circuit has not 

had occasion to rule on the issue. While many of the circuit court opinions reject retroactivity 

somewhat cursorily, others have provided more explanation of their rationale. Nearly all of these 

decisions agree that the starting point for determining whether a statute should be applied 

retroactively is the Supreme Court’s ruling in Landgraf v. USI Film Prods.11 For example, the 

Fourth Circuit has written: 

The Supreme Court has held, “[R]etroactivity is not favored in the law [.] 

[C]ongressional enactments and administrative rules will not be construed to have 

retroactive effect unless their language requires this result.” Landgraf v. USI Film 

Prods.12 The ADAAA itself provides “[t]his Act and the amendment made by this Act 

shall become effective on January 1, 2009.”13 In Cochran14, the court concluded that 

the amendment “evinces a prospective intent with its delayed effective date.” We 

agree: there is no language in the ADAAA indicating that Congress intended to make 

this law retroactive; in fact, the indication is to the contrary.15 

In the case before the Fourth Circuit, Reynolds v. American Nat. Red Cross, the plaintiff had 

argued that even if the ADAAA was not in effect at the time the conduct giving rise to his claim 

occurred, it was in full effect when the district court rendered its decision, and so the ADAAA 

should be applied. He quoted the following language from the Supreme Court’s opinion in the 

Landgraf case: (“[I]n many situations, a court should apply the law in effect at the time it renders 

its decision, even though that law was enacted after the events that gave rise to the suit.”16 The 

Fourth Circuit responded to this contention by quoting another passage from Landgraf: 

[P]rospectivity remains the appropriate default rule. Because it accords with widely 

held intuitions about how statutes ordinarily operate, a presumption against 

retroactivity will generally coincide with legislative and public expectations. Requiring 

clear intent assures that Congress itself has affirmatively considered the potential 

unfairness of retroactive application and determined that it is an acceptable price to 

pay for the countervailing benefits. Such a requirement allocates to Congress 

responsibility for fundamental policy judgments concerning the proper temporal reach 

of statutes, and has the additional virtue of giving legislators a predictable background 

rule against which to legislate.17 

20
 
 

Accordingly, the Fourth Circuit ruled that the ADAAA does not apply retroactively, and added, 

“Therefore, we will instead look to Toyota, Sutton, and their progeny.”18

The Tenth Circuit likewise relied heavily on the Langraf decision in ruling against ADAAA 

retroactivity. It observed: 

[A]ll events relevant to {the plaintiff]’s claim occurred before the ADAAA's enactment in 

January 1, 2009. “When a case implicates a federal statute enacted after the events in 

suit, the court's first task is to determine whether Congress has expressly prescribed the 

statute's proper reach. If Congress has done so, of course, there is no need to resort to 

judicial default rules.” Landgraf v. USI Film Prods.

19 Nevertheless, “when the Congress 

has delayed the effective date of a substantive statute that could in principle be applied 

to conduct completed before its enactment,” the federal courts “presume the statute 

applies only prospectively.” Lytes v. DC Water & Sewer Auth.

20 

In addition to the effective date, default rules of statutory interpretation under 

federal law weigh against retroactive application.21 

In support of the latter point, the Tenth Circuit pointed to yet another quotation from the 

Supreme Court’s opinion in Landgraf: 

When ... the statute contains no ... express command [prescribing its proper reach], 

the court must determine whether the new statute would have retroactive effect, i.e., 

whether it would impair rights a party possessed when he acted, increase a party's 

liability for past conduct, or impose new duties with respect to transactions already 

completed. If the statute would operate retroactively, our traditional presumption 

teaches that it does not govern absent clear congressional intent favoring such a 

result.22 

The Tenth Circuit ruled that, absent clear congressional intent favoring retroactivity, the 

applicable principles dictated that ADAAA does not apply to the case before it.23 

The Court of Appeals for the District of Columbia Circuit provided yet another example of 

Landgraf-based analysis of ADAAA retroactivity when it set out the following framework: 

In Landgraf v. USI Film Products, the Supreme Court reaffirmed the judicial 

presumption against applying a statute that “would impair rights a party possessed 

when he acted, increase a party's liability for past conduct, or impose new duties with 

respect to [completed] transactions.” Landgraf and its sequelae prescribe a process 

for determining whether a statute applies to past conduct. We first look for an 

“express command” regarding the temporal reach of the statute, or, “in the absence of 

language as helpful as that,” determine whether a “comparably firm conclusion” can 

be reached upon the basis of the “normal rules of [statutory] construction.”24 If we 

cannot reach a firm conclusion, then we turn to judicial default rules, asking whether 

applying the statute “would have a retroactive consequence in the disfavored sense 

21
 
of ‘affecting substantive rights, liabilities, or duties [on the basis of] conduct arising 

before [its] enactment.’”25 If applying the statute would have such a disfavored effect, 

then we do not apply it absent clear evidence in the legislative history that the 

Congress intended retroactive application.26 

Applying this analytical scheme to the ADAAA, the court found the effective date provision of 

the Act determinative: 

By delaying the effective date of the ADAA [sic], the Congress clearly indicated the 

statute would apply only from January 1, 2009, forward. If the Congress intended 

merely to “clarify” the ADA, then its decision to delay the effective date would make 

no sense; it would needlessly have left the ADA unclear for the more than three 

months between enactment of the ADAA on September 25, 2008 and its going into 

effect on January 1, 2009.27 

The court felt that nothing in the statute indicated that Congress intended such a scenario, while 

if Congress meant for the Amendments to have a purely prospective effect, then the decision to 

delay the effective date would make sense. In the latter situation, according to the court, 

delaying the effective date would serve to “give fair warning of the Amendments to affected 

parties and to protect settled expectations.”28 Such reasoning led the court to conclude that “the 

delayed effective date in the ADAA ... admits of only one explanation: The Congress intended 

the statute to have prospective only effect.”29 

In addition to the circuit courts’ strong consensus against giving retroactive effect to the ADAAA, 

it is significant to note that the U.S. Equal Employment Opportunity Commission (EEOC) has 

taken the same position. In its Questions and Answers on the Final Rule Implementing the ADA 

Amendments Act of 2008, EEOC responded to the query “Does the ADAAA apply to 

discriminatory acts that occurred prior to January 1, 2009?” as follows: 

No. The ADAAA does not apply retroactively. For example, the ADAAA would not 

apply to a situation in which an employer, union, or employment agency allegedly 

failed to hire, terminated, or denied a reasonable accommodation to someone with a 

disability in December 2008, even if the person did not file a charge with the EEOC 

until after January 1, 2009. The original ADA definition of disability would be applied 

to such a charge. However, the ADAAA would apply to denials of reasonable 

accommodation where a request was made (or an earlier request was renewed) or to 

other alleged discriminatory acts that occurred on or after January 1, 2009.30 

A slight, but noteworthy, variation from circuit courts’ standard rejection of retroactivity of the 

ADAAA occurred in a Sixth Circuit case, Jenkins v. National Bd. of Medical Examiners, in which 

a third-year medical student with “a diagnosed reading disorder” sought additional time on the 

22
 
United States Medical Licensing Examination as an ADA accommodation.31 Relying on Toyota 

Motor Manufacturing, Kentucky, Inc. v. Williams,32 the district court had ruled that Jenkins did 

not have a disability under the ADA. The lawsuit was pending on appeal when the ADAAA took 

effect on January 1, 2009. The Sixth Circuit took note of the newly effective Amendments Act, 

which it characterized as “a law repudiating Toyota's strict standard for finding a disability under 

the ADA and expressing its intent that the ADA be construed in favor of broad coverage.”33 The 

court was aware of the body of judicial precedent holding that the ADAAA is “not applicable 

where the actions giving rise to the litigation occurred before the effective date of the 

amendments,” but distinguished those cases on the grounds that they involved suits for 

damages and that they relied upon portions of the Landgraf decision that related to the right to 

compensatory and punitive damages for violations of Title VII under the Civil Rights Act of 

1991.34 The Sixth Circuit ruled that the case before it was significantly different because it was a 

suit for prospective injunctive relief in which, “[r]ather than seeking damages for some past act 

of discrimination ... [the plaintiff] seeks the right to receive an accommodation on a test that will 

occur in the future, well after [the ADAAA’s] effective date.”35 

The court identified portions of the Supreme Court’s decision in Landgraf that 

supported its position that prospective relief should be treated differently: 

Landgraf does not stand for the principle that new laws should never apply to cases 

pending on appeal. The Landgraf Court noted, “A statute does not operate 

‘retrospectively’ merely because it is applied in a case arising from conduct 

antedating the statute's enactment or upsets expectations based in prior law. Rather, 

the court must ask whether the new provision attaches new legal consequences to 

events completed before its enactment.” The Court's holding in Landgraf was based 

on the fact that “damages are quintessentially backward looking” and, in that case, 

“would attach an important new legal burden to [past] conduct.” However, “[w]hen the 

intervening statute authorizes or affects the propriety of prospective relief, application 

of the new provision is not retroactive.”36 

The Sixth Circuit deemed it a well-settled legal principle that a court applies “the law in effect at 

the time it renders its decision, unless doing so would result in manifest injustice or there is 

statutory direction or legislative history to the contrary,” and, because the plaintiff was seeking 

prospective relief, “no injustice would result from applying the amended law. Nor does the 

statute direct that the amendments should not apply to a pending case for prospective relief.”37 

This analysis led the Sixth Circuit to conclude that “[b]ecause this suit for injunctive relief was 

pending on appeal when the amendments became effective, the amendments apply to this 

23
 
 

case. We therefore remand the case to the district court for further consideration in light of the 

ADA Amendments Act.”38 

The Sixth Circuit’s ruling on a “prospective relief” exception from ADAAA nonretroactivity has 

been discussed and sometimes distinguished in other cases,39 but its validity has not been 

overruled, repudiated, or directly challenged to date. 

Another variant from full-blown application of non retroactive application of the ADAAAretroactivity principle was carved out by the Ninth Circuit in its decision in Rohr v. Salt River 

Project Agricultural Imp. & Power Dist.40 The lawsuit involved an ADA claim by a welding 

metallurgy specialist who had insulin-dependent type 2 diabetes. Well before the ADAAA 

became effective on January 1, 2009, the case was pending in the Court of Appeals and oral 

argument had been completed.41 The Ninth Circuit held that the plaintiff had provided sufficient 

evidence that he was a qualified individual with a disability under the ADA to survive summary 

judgment, even under pre-ADAAA analysis, so the court did not need to decide whether the 

ADAAA applied retroactively to the plaintiff's claims.42 In examining whether the plaintiff’s 

diabetes constituted a disability under the ADA, the court nonetheless considered the impact of 

the ADAAA, “because the ADAAA sheds light on Congress' original intent when it enacted the 

ADA.”43 

The court found the ADAAA informative as to original congressional intent in several ways. The 

2008 Act made clear that the Supreme Court had gone astray in “defin[ing] ‘disability’ more 

narrowly than many of the ADA's original Congressional proponents had intended. See H.R. 

Rep. No. 110-730, at 5 (2008) (H. Comm. on Educ. & Labor).” The ADAAA indicates that in 

enacting the ADA 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 Section 504 of the Rehabilitation Act of 1973, but that expectation had not been fulfilled. 

Further, “the holdings of the Supreme Court in Sutton v. United Air Lines, Inc.) 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.”44 

More specifically related to the case before it, the Ninth Circuit found that the ADAAA clarified 

24
 
original congressional intent regarding the meaning of disability as it applies to the condition of 

diabetes in three major ways: 

First, the law makes clear that eating is a major life activity under the Act. Second, the 

ADAAA states that the standard articulated in Toyota-that “substantially limits” means 

“prevents or severely restricts”-“has created an inappropriately high level of limitation 

necessary to obtain coverage under the ADA.” In this respect, Congress has decided 

that the current EEOC regulations, which define the term “substantially limits” as 

“significantly restricted,” require a greater degree of limitation than the 1990 Congress 

had intended, and has instructed the EEOC to revise its definition. Third, and perhaps 

most significantly, the ADAAA rejects the requirement enunciated in Sutton that 

whether an impairment substantially limits a major life activity is to be determined with 

reference to mitigating measures. The ADAAA makes explicit that the “substantially 

limits” inquiry “shall be made without regard to the ameliorative effects of mitigating 

measures such as ... medication, medical supplies, equipment, or appliances ...; use 

of assistive technology; reasonable accommodations or auxiliary aids or services; or 

learned behavioral or adaptive neurological modifications.”45 

The court thus interpreted congressional intent under the ADA to be that impairments were “to 

be evaluated in their unmitigated state, so that, for example, diabetes will be assessed in terms 

of its limitations on major life activities when the diabetic does not take insulin injections or 

medicine and does not require behavioral adaptations such as a strict diet.”46 Drawing, in part, 

on the “light on Congress' original intent when it enacted the ADA” provided by the ADAAA, the 

Ninth Circuit ruled that Rohr had established a genuine question of material fact as to his having 

a disability and that he was qualified for the position in question and vacated the district court’s 

dismissal of the lawsuit. To underscore the point of its availing itself of illumination from the 

ADA, the court unambiguously declared: “While we decide this case under the ADA, and not the 

ADAAA, the original congressional intent as expressed in the amendment bolsters our 

conclusions.”47 

Finding 1: The decisions of the United States Courts of Appeals reflect a strong 

consensus that the ADAAA does not apply to ADA claims in which the alleged acts of 

discrimination occurred prior to January 1, 2009, when the ADAAA took effect; a few 

courts have recognized narrow exceptions to this general rule for situations in which: (A) 

a plaintiff is seeking prospective injunctive relief, such as compelling a covered entity to 

provide an accommodation in the future; or (B) a court considers provisions of the 

ADAAA for the purpose of shedding light on the original intent of Congress when it 

enacted the ADA. 

25
 
2. Whether the ADAAA Was in Effect 

The prevalent rejection of retroactive effect for the ADAAA discussed in the previous subsection 

has had a very large impact since its enactment as cases wind their way up through the courts. 

Reviewing the circuit court decisions under the ADAAA to date provides a clear reminder that 

initiating a lawsuit and proceeding through the federal court system to the appellate level 

commonly takes considerable time. As this report was being written, over four-and-one-half 

years had elapsed since President George W. Bush signed the ADAAA into law, and nearly four 

years had passed since the ADAAA became effective. And yet a majority of the cases that have 

reached the U.S. Courts of Appeals have resulted in a ruling that the ADAAA was not in effect 

when the alleged discriminatory acts took place. Of the 115 circuit court decisions research 

identified as mentioning the ADAAA, only 12 (about 10 percent) involved a finding by the court 

that the ADAAA was in effect at the pertinent time. In five of those twelve, the courts found the 

ADAAA was in effect but did not apply it, resolving the appeal on other grounds. In 86 (about 70 

percent) of the cases, the courts explicitly ruled that the Amendments Act was not in effect. In 

the remaining 17 decisions, the courts found it unnecessary to determine whether the ADAAA 

was in effect in resolving the matters raised in the proceedings before them. 

In relation to the full development of appellate court interpretation and application of the 

ADAAA, these are still very early days. Not only have most of the circuit courts found that the 

ADAAA was not in effect at the time of the relevant events in the appeals before them, but the 

cases on appeal are almost all the result of appeals of district court decisions on motions to 

dismiss or summary judgment. Very few of the cases have involved appeals of final decisions 

after trial. Cases in which the ADAAA clearly is in effect and for which retroactive effect of the 

law will cease to be relevant will increase dramatically as time passes. And even now, as the 

following subsections describe, the decisions of the circuit courts give some useful indication of 

where the law regarding changes made by the ADAAA is going. 

Finding 2: In regard to cases raising ADAAA issues making their way through the 

courts, it is still early: in only 10 percent of Courts of Appeals’ decisions mentioning the 

ADAAA to date has the court found that the ADAAA was in effect when the alleged 

26
 
 

discriminatory actions took place, and in more than one-third of the cases in which the 

court found the ADAAA was in effect the court did not end up applying it. 

B. Circuit Courts’ Views of the Impact of the ADAAA 

While a sizeable majority of circuit decisions addressing the ADAAA have held that the Act was 

not in effect when the alleged claims of discrimination occurred, this does not mean that the 

circuit courts have not had a lot to say about their interpretations and expectations of the 

ADAAA. The following subsection discusses the small number of circuit court decisions in which 

the ADAAA was applied by the court in determining whether the plaintiff had shown a disability 

under the ADA; that discussion conveys, to some degree, the views of those courts about how 

the ADAAA has modified the analysis in such cases. Those decisions were not the only ones, 

however, in which Courts of Appeals expressed their understanding of how the ADAAA has 

transformed the legal landscape. The case of Rohr v. Salt River Project Agricultural Imp. & 

Power Dist., in which the Ninth Circuit articulated its variation on ADAAA nonretroactivity for 

situations where the ADAAA can shed light on Congress' original intent in enacting the ADA, In 

Rohr, the court described several ways in which the ADAAA had ramifications for cases in 

which the plaintiff’s disability was at issue, including expanding the list of examples of major life 

activities under the Act; rejecting the standard articulated in Toyota that “substantially limits” 

means “prevents or severely restricts” (including directing the EEOC to revise its definition of 

“substantially limited”); and rejecting the requirement in Sutton that mitigating measures are to 

be taken into account in ascertaining substantial limitation of a major life activity.48 In many 

other cases, however, Courts of Appeals that did not invoke Rohr’s original congressional intent 

rationale nonetheless felt compelled to express their views about the dramatic transformative 

impact of the ADAAA, even though they found it was not in effect for timely application in the 

cases before them. 

In Latham v. Board of Educ. of Albuquerque Public Schools,

49 a case involving a disability 

discrimination claim by a schoolteacher with chronic asthma, the Tenth Circuit determined that 

the ADAAA should not be applied retroactively to the case at hand. The court offered, however, 

its view of the impact that the ADAAA would have, and collected some of the statements 

regarding the implications of the Act in decisions of various circuit courts: 

27
 
As its formal title suggests, the ADAAA was intended to “restore the intent and 

protections” of the ADA after the ADA's reach had been limited by certain Supreme 

Court decisions. Generally speaking, the ADAAA was intended to remove certain 

constraints on the definition of “disability” imposed by the Court's construction of the 

ADA. See, e.g., Carter v. Pathfinder Energy Servs., Inc. (10th Cir. 2011)50 (noting that 

“Congress amended the ADA in 2008 ‘to correct what it viewed as an overly 

restrictive interpretation of the statute's terms that had been adopted by the Supreme 

Court’” (quoting Carmona v. Sw. Airlines Co.51 (5th Cir. 2010)); Kemp v. Holder52 (5th 

Cir. 2010) (agreeing with the plaintiff that the ADAAA was intended by Congress to 

abrogate the Supreme Court's holding that whether an impairment constitutes a 

“disability” must be considered with reference to the “mitigating effects” of health-care 

aids); Hohider v. United Parcel Serv., Inc.53 (3d Cir. 2009) (“The ADAAA amends the 

ADA in important respects, particularly with regard to the definition and construction 

of ‘disability’ under the statute.”); see also Rhodes v. Langston Univ.54 (10th Cir. 

2011) (discussing congressional intent in enacting the ADAAA); Allen v. SouthCrest 

Hosp.55 (10th Cir. 2011) (same).56 

In Reynolds v. American Nat. Red Cross,

57 the Fourth Circuit case discussed above in which 

the court held that the ADAAA does not apply retroactively and that “[t]herefore, we will instead 

look to Toyota, Sutton, and their progeny,”58 the court catalogued some of the principles 

established in those rulings that would change under the ADAAA: 

Before the enactment of the ADAAA, courts relied upon Toyota Motor Manufacturing, 

Kentucky, Inc. v. Williams, and Sutton v. United Air Lines, Inc., in determining whether 

a plaintiff was disabled. These cases defined the terms “substantially” and “major,” as 

used in the ADA definition of disability, “to be interpreted strictly to create a 

demanding standard for qualifying as disabled[.]” 

The Toyota Court held, in order to qualify as disabled 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. The 

impairment's impact must also be permanent or long term.” The Court continued, 

It is insufficient for individuals attempting to prove disability status under this 

test to merely submit evidence of a medical diagnosis of an impairment. 

Instead, the ADA requires those claiming the Act's protection ... to prove a 

disability by offering evidence that the extent of the limitation [caused by 

their impairment] in terms of their own experience ... is substantial. 

Id.; see also Sutton at 482 (“A ‘disability’ exists only where an impairment 

‘substantially limits' a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be 

substantially limiting if mitigating measures were not taken.”).59 

In Britting v. Secretary, Dept. of Veterans Affairs,

60 a Section 504 action (applying standards 

under the ADA) brought by a federal employee with irritable bowel syndrome, the Third Circuit 

28
 
found the ADAAA was not in effect, but outlined some of the revisions the new law would bring 

about: 

At the time of [the plaintiff’s] termination, the Americans with Disabilities Act (ADA) 

was interpreted narrowly and the standard for determining whether an individual had 

a disability included consideration of whether the impairment had a permanent or 

long-term impact. The ADA Amendments Act of 2008 (ADAAA), however, rejected 

this narrow interpretation and reinstated the broad scope of protections available 

under the ADA. In amending the ADA, Congress set forth several rules of 

construction governing the definition of disability, including that “[a]n impairment that 

is episodic or in remission is a disability if it would substantially limit a major life 

activity when active.”61 

Many circuit court decisions finding the ADAAA not in effect at the pertinent times in the 

particular cases have explicitly recognized the expansion of coverage of the ADA’s definition of 

disability that the ADAAA will produce, including Jones v. Nationwide Life Ins. Co.62 (1st Cir. 

2012) (“the ADA Amendments Act ... instructed that “disability” should be ‘construed in favor of 

broad coverage.’”);Jones v. Nissan North America, Inc.63 (6th Cir. 2011) (“the ADAAA broadened 

the definition of disability”); Watts v. United Parcel Service64 (6th Cir. 2010) (same); Fleishman v. 

Continental Cas. Co.65 (7th Cir. 2012) (“the ADAAA broadened the ADA's protection ... to, inter 

alia, include a wider range of impairments that substantially limit a major life activity”); Tarmas v. 

Secretary of Navy66 (11th Cir. 2011) (“Congress passed amendments to the ADA, known as the 

ADAAA, which expanded coverage”). 

The fact that the ADAAA had superseded Toyota, Sutton, and other precedents that had 

restricted the definition of disability was specifically acknowledged in a number of circuit 

decisions, including the following: Jones v. Nationwide Life Ins. Co.67 (1st Cir. 2012) (the ADAAA 

“rejected ... the strict standard” established in Toyota Motor Mfg., Ky., Inc. v. Williams); Amsel v. 

Texas Water Development Bd.68 (5th Cir. 2012) (“Many of the cases cited in this discussion will 

be superseded in whole or in part as applied to cases arising under the new law”); Hodges v. 

ISP Technologies, Inc.69 (5th Cir. 2011) (the ADAAA “effectively superseded the Supreme 

Court's narrow construction of “disability” set forth in Sutton and subsequent cases”); Fleishman 

v. Continental Cas. Co.70 (7th Cir. 2012) (“the ADAAA broadened the ADA's protection by 

superseding portions of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing v. 

Williams”); Carter v. Pathfinder Energy Services, Inc.71 (10th Cir. 2011) (“Congress amended the 

ADA in 2008 to correct what it viewed as an overly restrictive interpretation of the statute's terms 

29
 
that had been adopted by the Supreme Court in Sutton and Williams.”) (internal quotation marks 

omitted). 

The expansion-of-coverage and supersession-of-prior-standards-and-precedents themes were 

addressed together, relatively succinctly, by the Sixth Circuit as follows: 

Congress has recently enacted major changes to the ADA. Amendments Act of 2008. 

Although these amendments do not control this case, we note that Congress has 

expressly rejected the EEOC's regulations that “defin[e] the term ‘substantially limits' 

as ‘significantly restricted’ ” because that definition “express[es] too high a standard” 

and is “inconsistent with congressional intent.” The amendments further reject the 

Supreme Court's directive that the ADA's terms should be “interpreted strictly,” 

Toyota, 534 U.S. at 196, and, going forward, Congress has instructed courts that 

“[t]he definition of disability in [the ADA] shall be construed in favor of broad coverage 

of individuals under this Act.”72 

The Fourth Circuit made the same point in even simpler terms when it declared that “Congress 

amended the ADA in 2008 to correct what it viewed as an overly restrictive interpretation of the 

statute's terms that had been adopted by the Supreme Court in Toyota and Sutton. The ADAAA 

made it easier for a plaintiff to demonstrate his disability....”73 

Some decisions have focused more specifically on particular elements of the Supreme Court’s 

ADA decisions that the ADAAA would rectify. Thus, the Fifth Circuit observed generally that the 

plaintiff in the case of Kemp v. Holder 74 was correct that 

the ADAAA sought to supersede Sutton. The “Findings and Purposes” section of the 

Act explained that Congress considered “the holdings of the Supreme Court in Sutton 

v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases [to] 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.” 

The court next described how the Act had dealt with the issue of mitigating measures: 

The ADAAA went on to explicitly overrule “the requirement enunciated by the 

Supreme Court in Sutton ... 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,” and amended the ADA to mandate that 

the “determination of whether an impairment substantially limits a major life activity ... 

be made without regard to the ameliorative effects of mitigating measures such as-... 

implantable hearing devices.”75 

The Tenth Circuit has likewise addressed the mitigating measures issue, declaring that “In 

Sutton, the Supreme Court held “the determination of whether an individual is disabled should 

30
 
be made with reference to measures that mitigate the individual's impairment....” The ADA 

Amendments Act of 2008 (“ADAAA”) rejected consideration of mitigating measures.”76 

Other decisions have addressed ADAAA revisions relating to the “regarded as” prong of the 

definition of disability. Thus, in illustrating its general observation that “[t]he ADAAA amends the 

ADA in important respects, particularly with regard to the definition and construction of 

‘disability’ under the statute,” the Third Circuit focused on the Act’s effects on the standards for 

showing that one has been regarded as having a disability.77 The court noted that, while the 

ADAAA “retains largely the same language” as the original ADA in the general definition of 

“disability,” it changes the intended scope of the “regarded as” prong of that definition by adding 

a provision specifying that “[a]n 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 Act 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.”78 The court 

also pointed to the ADAAA’s new language stating that the regarded as prong “shall not apply to 

impairments that are transitory and minor,” and defines a “transitory impairment” as “an 

impairment with an actual or expected duration of 6 months or less.”79 And the Third Circuit 

further declared that the ADAAA makes clear that “[a] covered entity ... need not provide a 

reasonable accommodation or a reasonable modification to policies, practices, or procedures to 

an individual who meets the definition of disability ... solely under [the ‘regarded as' prong] of 

such section.” 80 The language of the ADAAA quoted by the Third Circuit in the first of the three 

“regarded as” changes it discussed was likewise invoked by the Eleventh Circuit in support of its 

conclusion that “[a]mong the Amendments, Congress changed the definition of ‘disability’ such 

that being “regarded as” having a disability no longer requires a showing that the employer 

perceived the individual to be substantially limited in a major life activity.”81 

To a large extent, reviewing the circuit court decisions that mention the ADAAA, at a time when 

most of the disability discrimination cases on appeal involve legal claims that occurred before 

the ADAAA took effect, is a trip down a bad-memory lane – a journey back to a time when 

cases were all resolved based on pre-ADAAA law – and these throwback decisions manifest all 

the rigidity, arbitrariness, illogic, wrong-headedness, and unfairness that characterized the sorry 

state of the ADA court decisions that caused the ADAAA to be necessary. Thus, to name but a 

31
 
few examples, after finding the ADAAA not yet in effect, circuit courts have ruled in specific 

cases that plaintiffs with bipolar disorder,82 breast cancer (in remission),83 and a below-the-knee 

leg amputation84 had not qualified as having disabilities under the ADA. It is easy to understand 

the lament of the plaintiff in the last case (who also had a traumatic brain injury that likewise 

was ruled not to be a disability) who declared: “when a leg is missing, there should be no 

debate regarding whether a man is disabled.”85 Many of the Courts of Appeals’ decisions in 

which the ADAAA cannot yet be applied serve as powerful reminders of why the ADAAA was 

needed. 

And yet, as the decisions discussed in this subsection demonstrate, many circuit decisions in 

which the courts found they could not apply the new standards in the cases before them 

nonetheless recognize and express the promise of the Amendments Act as it is beginning to 

take effect and make its impact felt at the appellate level, and indicate an awareness of the 

ameliorative consequences it can have. How else can one explain that courts that decide they 

cannot apply the ADAAA devote paragraphs or pages of their opinions to describing what effect 

the ADAAA would have had had it been in effect? Indeed, some of the circuit courts seem to 

express some wistfulness or regret about their inability to apply the revisions enacted in the 

ADAAA by writing, gratuitously, that “even though [the plaintiff’s] claim might fare differently if 

the ADAAA applied, we are bound to follow Sutton and evaluate whether his impairment 

constitutes a disability when taking into account the benefit imparted by his hearing aids”86 or 

that “[t]hese amendments would be very favorable to [the plaintiff’s] case if they are applicable, 

because they make it easier for a plaintiff with an episodic condition like [his] to establish that he 

is an ‘individual with a disability.’”87 It appears that many of the circuit courts constrained to 

apply pre-ADAAA standards are waiting with some eagerness for the amendments to take 

effect. 

Finding 3: Many of the Courts of Appeals’ decisions in which the courts found that the 

ADAAA was not in effect have nevertheless included descriptions of the Amendment 

Act’s purpose, content, and implications in a manner that conveys awareness and 

understanding of, and receptivity toward, the changes in the law that the ADAAA entails. 

C. Circuit Court Decisions in Which the ADAAA Was Applied 

32
 
The courts found that the ADAAA was in effect in only a dozen, about 10 percent, of the total 

number of 115 circuit court decisions identified as mentioning the Act. Subtracting the cases in 

which the courts found that the ADAAA was in effect but made their decisions on other grounds 

leaves only seven cases in which the court found that the ADAAA was in effect and then applied 

it. Because of the small number of circuit court decisions applying the ADAAA, no statistically 

valid conclusions or reliable inferences can be derived from it. What is possible, however, is to 

describe the make-up and characteristics of the group of seven decisions, and to summarize 

each decision individually, for garnering insights and anecdotal information. This summary of 

the case law will, at a minimum, provide a snapshot of how the Courts of Appeals have put the 

ADAAA into action in those relatively few instances in which they have had the opportunity to do 

so. 

Of the seven cases in which circuit courts applied the ADAAA, three involved claims of 

discrimination in employment, two addressed prison conditions, one related to a volunteer 

program at a county rehabilitation center, and one challenged the denial of additional time as an 

accommodation on the United States Medical Licensing Examination. The overall results in the 

cases, at the particular stage of the litigation that was the subject of the appellate proceedings 

in the cases, can be capsulized as follows: 

 Six of the seven plaintiffs prevailed on the issue of properly pleading or providing 

evidence of a disability, and one lost on that issue; 

 Apart from the pleading/showing-a-disability issue, four other plaintiffs were 

unsuccessful in the outcome of the appeals proceedings on other grounds, with only two 

plaintiffs prevailing in the circuit court’s decisions on the viability of their claims; 

 In the employment discrimination decisions, plaintiffs prevailed on the pleading/showinga-disability issue in two of the three cases, but none of them prevailed on the overall 

viability of their claims. 

What follows is a decision-by-decision summary of the seven circuit court decisions applying the 

ADAAA. 

1. Brown v. City of Jacksonville 

33
 
In Brown v. City of Jacksonville, the Eighth Circuit heard the appeal of a purchasing manager 

for the city of Jacksonville who “suffered from hip problems that caused chronic pain and 

required her to walk with a cane,” and who allegedly was terminated from her job because of 

her disability.88 The court noted that the plaintiff’s legal papers “contain[ed] no citation to the 

relevant statute,” forcing the court to “infer she bases her disability-discrimination claim on a 

purported violation of the ADA's prohibition of employment discrimination ‘against a qualified 

individual on the basis of disability.’”89 The district court analyzed the plaintiff’s claim under preADAAA standards, but the Court of Appeals ruled that it should have applied the ADAAA: “we 

evaluate her ADA claim under the more generous post-amendment version of the ADA because 

the City's alleged violation of the ADA—termination of Brown's employment—occurred after the 

2008 amendments took effect.”90 

While “the 2008 amendments made clear the ADA applies to a person who “has been subjected 

to [adverse employment] action ... under [the ADA] 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,”91 the district court had improperly analyzed the ADA claim under the more restrictive 

requirements that applied prior to the ADAAA. Specifically, “[t]he district court relied on the ... 

pre-amendment regulations defining the term ‘substantially limits’ ... that Congress expressly 

rejected in 2008.”92 The lower court had also focused exclusively on whether the plaintiff had an 

“actual impairment,” and erroneously “failed to consider whether Brown made a submissible 

claim under the post-amendment ADA's expanded definitions of perceived and historical 

impairment.“93 Applying the ADAAA revisions, the Eighth Circuit indicated that it would assume 

that the plaintiff was an individual with a disability; the court ultimately decided it did not need to 

make a determination on the disability issue because the plaintiff had not presented either direct 

or indirect evidence of a causal link between the adverse employment action and her disability, 

so there was no evidence the City and supervisors had terminated her employment “on the 

basis of disability.”94 Since it found that the record did not contain evidence sufficient to permit a 

reasonable jury to find the City had terminated Brown based on disability, the court affirmed the 

grant of summary judgment in favor of the defendants on Brown's ADA claim.95 

2. Wolfe v. Postmaster General 

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Wolfe v. Postmaster General involved an action for disability discrimination filed under Section 

504 of the Rehabilitation Act of 197396 by a machine mechanic at a postal distribution center 

who had “attention deficit hyperactivity disorder (ADHD) for which he takes stimulant 

medication.”97 Since legal standards for liability under Section 504 are the same as those under 

the ADA, the timing of the alleged acts of discrimination in the case forced the Eleventh Circuit 

to apply both pre-ADAAA and post-ADAAA law: “The majority of Wolfe's claims concern events 

that occurred before the effective date of the amendments, and are therefore governed by preamendment standards. Wolfe's claim stemming from his removal from service notice on March 

25, 2009, however, falls under the post-amendment law.”98 The plaintiff maintained on appeal 

that the defendants had regarded him as having a disability both before and after the ADAAA 

went into effect. Applying the standard of Sutton v. United Air Lines, Inc., that to be regarded as 

having a disability with respect to one's ability to work a plaintiff must show that the employer 

perceived the plaintiff as being “unable to work in a broad class of jobs,” the circuit court ruled 

that Wolfe had failed to make a prima facie case that he was regarded as having a disability 

with respect to the incidents that occurred before the effective date of the ADAAA.99 With 

respect to incidents occurring after the ADAAA’s January 1, 2009 effective date, however, the 

court applied the amended version of the “regarded as standard” that states: 

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.100 

The circuit court held that, “[b]ecause of that amendment, a plaintiff need demonstrate only that 

the employer regarded him as being impaired, not that the employer believed the impairment 

prevented the plaintiff from performing a major life activity,” leading the court to “take it as given 

for present purposes that Wolfe has carried his burden of showing that the Postal Service 

regarded him as disabled.”101 

Given the dramatic difference in the result on the issue of demonstrating disability, the Wolfe 

decision provides a great “before and after” example of the transformative change of law the 

ADAAA represents. However, even though Mr. Wolfe prevailed on the disability issue as 

presented on appeal and the Postal Service did not dispute that he was qualified for the position 

at issue, the outcome of the appeal was ultimately not at all favorable for him, as the Eleventh 

35
 
Circuit found that he had “failed to establish a prima facie case because he has not shown that 

he was discriminated against because of his perceived disability” and affirmed summary 

judgment for the defendant.102 

3. Allen v. SouthCrest Hosp. 

The plaintiff in Allen v. SouthCrest Hosp., a medical assistant who suffered from migraine 

headaches, filed an ADA action alleging that the hospital she worked for failed to accommodate 

her disability and terminated her employment because of it.103 The district court granted the 

hospital’s motion for summary judgment as to the ADA claims, “primarily because [the plaintiff] 

has not established the first element of a prima facie case of ADA discrimination, that she is 

disabled within the meaning of the ADA.”104 It does not appear that the district court took the 

changes made by the ADAAA into account in making its ruling. On appeal, the Tenth Circuit 

recognized the applicability and central objectives of the ADAAA in the following passage in its 

decision: 

Congress passed the ADAAA with the explicit purpose of rejecting certain standards 

and reasoning of Supreme Court opinions regarding interpretation of the ADA and 

“reinstating a broad scope of protection to be available under the ADA.” Accordingly, 

the ADAAA added language to the ADA providing for a broad construction of the 

definition of disability (“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.”). This new language became effective on 

January 1, 2009, before the relevant events in this case.105 

Having acknowledged the overall significance of the ADAAA, the circuit court proceeded, 

however, to analyze the plaintiff’s contentions that she had a disability in a manner that was not 

fully in step with the Act’s precepts. In addition to the provision just quoted directing that the 

definition of disability be construed in favor of broad coverage to the maximum extent permitted 

by the terms of the ADAAA, the Act also provides that “the term ‘substantially limits’ shall be 

interpreted consistently with the findings and purposes of the ADA Amendments Act.”106 The 

congressional findings include expressions of disapproval for court rulings that “have narrowed 

the broad scope of protection intended to be afforded by the ADA,” “incorrectly found in 

individual cases that people with a range of substantially limiting impairments are not people 

with disabilities,” and “interpreted the term “substantially limits” to require a greater degree of 

limitation than was intended by Congress ...”107 The statement of purposes in the ADAAA 

36
 
expressly rejects the Supreme Court’s restrictive standards for interpreting the terms “major” 

and “substantial” in the definition of disability and the courts’ creation of “an inappropriately high 

level of limitation necessary to obtain coverage under the ADA, and declares congressional 

intent that “the question of whether an individual’s impairment is a disability under the ADA 

should not demand extensive analysis.”108 

But the Tenth Circuit took a more probing and critical look at the plaintiff’s showing of a 

disability, resulting in ADAAA-disfavored “extensive analysis.” The court observed that “Ms. 

Allen identifies her impairments as ‘hypertension, migraines, insomnia and heaviness in the 

chest.’ Her allegations concerning substantial limitations are primarily tied to her migraines 

rather than the other conditions, however.”109 The court noted that Allen experienced migraine 

headaches several times per week, adding “but she did not suffer from them on a daily 

basis.”110 She described the headaches as varying in severity. At times, she reported, her head 

was “banging” when she got out of bed, but she was not dizzy or nauseous; at other times the 

symptoms were more serious and she could not get up or go to work. She saw a doctor at 

SouthCrest for the migraines, who prescribed her various medications to treat them.111 On one 

occasion Allen became ill at work with a migraine and chest pains, for which she received 

treatment at the emergency room.112 In deposition testimony, when the plaintiff was asked 

whether, when she had a migraine and went to work, she could then “drive home and cook a 

meal or whatever else you had to do at home,” she responded “No. When you get home, that's 

when you crash and burn. Take medication that's going to make you go to sleep and you go to 

sleep.” She later explained in an affidavit submitted with her summary judgment response what 

she meant by her reference to her need to “crash and burn” as follows: “On the days I had 

headaches I would go home after work and ‘crash and burn.’ That is to say, I could not function 

or take care of any of the routine matters of caring for myself. I could not do anything other than 

go home and ... go straight to bed.”113 

The plaintiff contended that her impairments substantially limited her in major life activities of 

sleeping, caring for herself, and working.114 Despite the fact that Allen felt compelled to take 

sleeping medication and apparently did so routinely on nights she had a migraine headache, the 

Court of Appeals was somewhat dismissive of the claim that Allen’s migraines interfered with 

her sleep. While acknowledging that she had mentioned her difficulties with sleeping in her 

37
 
briefing and argument in the district court and in her opening appellate brief (“During her 

migraines her ability to sleep is affected ....”), the circuit court found that “she made no specific 

argument that sleeping was a major life activity that was substantially affected by her 

migraines,” and “[h]er argument concerning the major life activity of sleep was insufficiently 

developed in district court and is mentioned only in passing here.” “Accordingly,” said the court, 

“we will give no further consideration to ‘sleeping’ as an alleged major life activity.”115 

The court turned next to the major life activity of taking care of oneself, even though it 

recognized that the plaintiff’s arguments had focused more on the effect of her condition on her 

ability to work. It based its decision to give caring for oneself priority on a 2006 (pre-ADAAA) 

Tenth Circuit precedent that had relied upon statements of the Supreme Court in the Sutton 

case that characterized the EEOC’s ADA regulations as treating the life activity of working as 

something that should be considered “only as a last resort.”116 In examining Allen’s claim that 

her migraines substantially limited her in the major life activity of caring for her self, the circuit 

court quoted from her affidavit as follows: “On the days I had headaches I would go home after 

work and “crash and burn.” That is to say, I could not function or take care of any of the routine 

matters of caring for myself. I could not do anything other than go home and [ ] go straight to 

bed.”117 Accordingly, the court concluded that “taken as a whole, the evidence showed that 

Allen's migraines, when active and treated with medication, did not permit her to perform 

activities to care for herself in the evenings and compelled her to go to sleep instead.118 But the 

circuit court found the plaintiff’s pleadings and evidence insufficient to meet her burden “to make 

more than a conclusory showing that she was substantially limited in the major life activity of 

caring for herself as compared to the average person in the general population,” and declared 

that “[a] mere assertion that she took medication and slept after arriving at home for an 

unspecified period when undergoing a migraine attack rather than caring for herself was 

insufficient to meet this burden.”119 

In ruling that “Ms. Allen's allegations and evidence on this point were conclusory at best,” the 

court took her to task for the lack of details: 

She presented no evidence concerning such factors as how much earlier she went to 

bed than usual, which specific activities of caring for herself she was forced to forego 

as the result of going to bed early, how long she slept after taking her medication, 

what time she woke up the next day, whether it was possible for her to complete the 

38
 
activities of caring for herself the next morning that she had neglected the previous 

evening, or how her difficulties in caring for herself on days she had a migraine 

compared to her usual routine of evening self-care.120 

The court also felt that the plaintiff had not adequately framed the comparison group of average 

people with which to contrast her limitations: 

She also made no attempt to show how the alleged limitations created by her need to 

“crash and burn” compared to the average person's ability to care for herself in 

evenings after work. The average person, presumably, does not have to go to bed 

immediately upon returning from work and/or to medicate herself with somniferous 

medications to escape migraine symptoms. But this fact alone does not meet Ms. 

Allen's burden, since the average person also sleeps each evening and cannot care 

for herself while asleep, and sometimes goes to bed early.121 

To this statement, the court attached a reference to a decision it had previously issued (in 

which, applying pre-ADAAA law, the Tenth Circuit had held that the plaintiff had not shown that 

her multiple sclerosis constituted a disability) for the proposition that, “with regard to major life 

activity of sleeping, ... many non-disabled people have nightmares or disturbed sleep patterns; 

the ADA plaintiff is obliged to present evidence that will permit comparison of the effects of his 

sleep disturbances to those experienced by the average person.”122 

Since it was the plaintiff’s “summary judgment responsibility to present evidence sufficient to 

meet her burden of production on the ‘disability’ element of her prima facie case,” and the court 

decided that “Ms. Allen's claim of a substantial limitation in the major life activity of caring for 

herself was insufficiently developed and insufficiently supported by the evidence,” the circuit 

court ruled that “[t]he district court properly rejected as unproven her claim of a substantial 

limitation in this major life activity.”123 

The court next turned to Allen’s claim that she was substantially limited in the major life activity 

of working, which, as noted above, the court had described as “a last resort.” This devolved into 

consideration of whether the requirement that proving substantial limitation of working 

necessitated proving that one was “significantly restricted in the ability to perform either a class 

of jobs or a broad range of jobs in various classes as compared to the average person having 

comparable training, skills and abilities,” a standard that had been adopted by the EEOC in its 

ADA regulations and applied by the Supreme Court in the Sutton decision.124 The plaintiff 

argued that under the broad interpretation of the definition of disability embodied in the ADAAA 

39
 
and applied in the new regulations promulgated under it she should be able to demonstrate 

disability in the major life activity of working even if she was only disabled from performing a 

single job.125 In particular, she pointed out that the provision relating to the “class of jobs or 

broad range of jobs” standard had been eliminated in the revised EEOC regulations issued to 

implement the ADAAA. But the court quoted the Interpretive Guidance accompanying the 

revised regulations indicating that the provision was removed from the regulation for other 

reasons: 

The Commission has removed from the text of the regulations a discussion of the 

major life activity of working. This is consistent with the fact that no other major life 

activity receives special attention in the regulation, and with the fact that, in light of the 

expanded definition of disability established by the Amendments Act, this major life 

activity will be used in only very targeted situations.126 

The court noted that the Interpretive Guidance goes on to explain that the “broad class of jobs” 

restriction remains in place even after the amendment to the regulations, declaring: 

In the rare cases where an individual has a need to demonstrate that an impairment 

substantially limits him or her in working, the individual can do so by showing that the 

impairment substantially limits his or her ability to perform a class of jobs or broad 

range of jobs in various classes as compared to most people having comparable 

training, skills, and abilities.127 

The foregoing led the Tenth Circuit to conclude as follows: 

[B]ased on our existing case law, Supreme Court case law, the applicable statute, 

and the regulations, that to show a disability in the major life activity of working, Ms. 

Allen was required, even after the enactment of the ADAAA and the modified EEOC 

regulations, to demonstrate that she was substantially limited in performing a class of 

jobs or broad range of jobs in various classes as compared to most people with 

comparable training, skills, and abilities. She failed to do so.128 

Rejection of all three of the plaintiff’s contentions as to how her migraine headaches 

substantially limited a major life activity led the court to the following result: “For the foregoing 

reasons, Ms. Allen failed to meet her summary judgment burden to establish a prima facie case 

of disability discrimination. The district court therefore properly granted summary judgment to 

SouthCrest on her ADA claims.”129 

It may be apropos to note that the Tenth Circuit only discussed the ADAAA in the context of 

adopting the restrictive “class of jobs or broad range of jobs” standard for determining 

substantial limitation of working. In reciting that Allen experienced migraine headaches several 

times per week, the court made a point of adding “but she did not suffer from them on a daily 

40
 
 

basis.”130 Yet the court did not mention the ADAAA provision declaring that “[a]n impairment that 

is episodic or in remission is a disability if it would substantially limit a major life activity when 

active.”131 And despite the fact that a key factor in the plaintiff’s condition was her need to take 

sleep medication when she had a migraine, the court did not make any mention of the ADAAA 

provision that specifies that “(E) (i) The determination of whether an impairment substantially 

limits a major life activity shall be made without regard to the ameliorative effects of mitigating 

measures such as— (I) medication....”132 Nor was the court apparently constrained in any way 

by the ADAAA directive that “the question of whether an individual’s impairment is a disability 

under the ADA should not demand extensive analysis.”133 As to this latter point, the Allen v. 

SouthCrest Hosp. decision has characteristics of the demanding, stringent, probing approach to 

claims of disability that marked the pre-ADAAA era. 

It remains to be seen how much impact the Tenth Circuit’s decision in Allen v. SouthCrest Hosp. 

will have on other courts. To date it has been cited in another Tenth Circuit decision,134 

distinguished by one federal district court,135 and discussed or mentioned for various points in 

eight other district court decisions.136 

4. Jenkins v. National Bd. of Medical Examiners 

The Sixth Circuit’s decision in Jenkins v. National Bd. of Medical Examiners was discussed 

above in regard to its recognition of a “prospective relief” exception from ADAAA 

nonretroactivity – “[b]ecause this case involves prospective relief and was pending when the 

amendments became effective, the ADA must be applied as amended.”137 In regard to the 

plaintiff’s reading disorder, the district court had found that “[t]here is ample evidence that 

Jenkins processes written words slowly, and that his condition prevents him from succeeding 

where success is measured by one's ability to read under time pressure.,”138 and that “[t]his 

condition has unquestionably made it more difficult for Jenkins to keep up with a rigorous 

medical school curriculum and to succeed on written tests where he is under time 

constraints.”139 Nonetheless, applying the standard announced by the Supreme Court in Toyota 

Motor Mfg. Kentucky, Inc. v. Williams that the determination of whether an activity is a “major 

life activity” depends upon “whether it is central to most people's daily lives,” the district court 

41
 
 

ruled that Jenkins had not identified a major life activity that he was unable to perform due to his 

condition, a failure that “must be fatal to his claim of disability under the ADA.”140 

Having determined, however, that the ADAAA applied to the case, the Sixth Circuit described its 

impact as follows: 

Congress amended the portion of the ADA governing construction of the term 

“disability,” such that “[t]he definition of disability in this Act shall be construed in favor 

of broad coverage of individuals under this Act, to the maximum extent permitted by 

the terms of this Act” and “[t]he term ‘substantially limits' shall be interpreted 

consistently with the findings and purposes of the [Act].” In so stating, Congress 

overturned the definition of “substantially limits” put forward in Toyota and directed the 

courts to interpret the term in a more inclusive manner.141 

The court added that “[w]ithout the benefit of these amendments, the district court relied on the 

Supreme Court's analysis in Toyota, which was controlling precedent at the time the district 

rendered its decision” and emphasized that “[i]n holding that Jenkins was not substantially 

limited in his ability to read, the district court relied on the very language from Toyota that 

Congress repudiated in the ADA Amendments Act.”142 This led the court to rule that “[b]ecause 

the district court relied on the Supreme Court's now-repudiated decision in Toyota Motor 

Manufacturing, Kentucky, Inc. v. Williams, the district court's legal conclusions require 

reconsideration,”143 and prompted the following conclusion: 

The change in the law has therefore undermined the district court's holding, and the 

resolution of this case will require the district court to make a fresh application of the 

law to the facts in light of the amendments to the ADA. The fact-bound nature of the 

question whether Jenkins is disabled under the revised Act counsels a remand 

without an appellate attempt to give more precise definition in the abstract to the 

revised Congressional language.144 

Accordingly, the Court of Appeals vacated the judgment and remanded the case to the district 

court for “further findings in light of the ADA Amendments Act,”145 an outcome that illustrates the 

potentially transforming effect of the ADAAA. 

5. Hilton v. Wright 

The two circuit court decisions applying the ADAAA that were brought by prisoners both 

involved allegations of discriminatory denials of medical treatment. In Hilton v. Wright, a New 

York state prisoner infected with the Hepatitis C virus (HCV) filed suit after he was denied 

42
 
antiviral treatment for his condition.146 After a lengthy screening process, members of the prison 

medical staff recommended that Hilton be treated with antiviral drugs to combat his HCV. Under 

Department of Correctional Services guidelines, however, because the plaintiff had admitted to 

using drugs in the past – he had admitted to having used marijuana and cocaine as a teenager 

(though periodic drug tests had subsequently shown him to be drug free) – he could not receive 

HVC antiviral treatment until he enrolled in a substance abuse program.147 When he sought to 

enroll in the program, but was deemed ineligible because he could not complete it before he 

was eligible for release, based on the earliest possible date he could be let go. When the 

plaintiff again requested antiviral treatment, after complaining to members of the prison medical 

staff that he was experiencing symptoms related to his HCV, he was again turned down.148 

Some three months after Hilton's request for treatment was denied, he filed suit against prison 

authorities and moved for a temporary restraining order (TRO) requiring authorization of 

antiviral treatment. Shortly after the motion for a TRO was made, the Chief Medical Officer for 

the New York State Department of Correctional Services stipulated that he would authorize 

treatment for Hilton.149 A short time later, Hilton amended his complaint to assert claims on 

behalf of a class of similarly situated prisoners in the custody of the corrections department and 

to join another inmate as a named plaintiff. The amended complaint alleged that the policy 

conditioning HCV antiviral treatment for former alcohol and drug users on their participation in 

the program was without medical justification and that its true aim was to limit the number of 

prisoners receiving treatment in order to save money.150 It also asserted that the department 

had an unnecessarily long HCV screening process for the same reason. The plaintiffs sought 

monetary damages and injunctive relief for asserted violations of Title II of the ADA” and 

Section 504 of the Rehabilitation Act, alleging that the defendants regarded the plaintiffs as 

disabled on the basis of their former drug or alcohol use, and discriminated against them 

through the substance-abuse-program-enrollment condition on eligibility for treatment.151 

The district court certified the class with respect to the plaintiffs' claims for injunctive relief, and 

the parties began settlement discussions shortly thereafter.152 They reached an interim 

settlement agreement that resolved all of the class's injunctive and equitable claims. It 

permanently eliminated the substance-abuse-program-enrollment condition, established 

procedures for identifying and providing treatment to those prisoners who had been denied 

medication because of their failure to participate in the substance abuse program, and called for 

43
 
payment to class counsel of fees for attorney and paralegal time used monitoring 

implementation of the agreement.153 The settlement agreement resolved all of the plaintiffs’ 

claims except for those of Hilton and the other named plaintiff against prison authorities for 

monetary damages, and the defendants moved for summary judgment on those claims. The 

district court granted the motion for summary judgment, and as all of the plaintiffs' claims had 

either settled or been disposed of by summary judgment, the district court entered judgment 

dismissing Hilton's complaint, and he filed an appeal to the Second Circuit.154 While the appeal 

was pending, attorneys for the plaintiff moved the district court for fees and costs incurred 

monitoring the settlement agreement, and the court granted the full amount of documented 

attorneys' fees – $23,152.155 

On appeal, the defendants argued that the dismissal should be affirmed due to the plaintiff’s 

failure to produce evidence that the prison authorities regarded him personally as being 

substantially limited in a major life activity. Responding to that contention, the Sixth Circuit 

responded that, until the ADAAA went into effect, “the defendants would have been correct, as 

Hilton would not have been able to demonstrate that he was ‘disabled’ within the meaning of the 

ADA.”156 The court went on to explain: 

Prior to that point, a plaintiff, such as Hilton, seeking to avail himself of the “regarded 

as” prong of the definition of “disability” needed to show that he was perceived as 

both “impaired” and “substantially limited in one or more major life activity.” Because 

we determine disability on an “individualized, case-by-case basis,” under the old 

regime, Hilton could survive summary judgment on his ADA claim only if he could 

raise a genuine issue of material fact about whether [the defendants] regarded him 

personally as being substantially limited in a major life activity. The record is devoid of 

any such evidence.157 

The circuit court pointed out, however, that in the ADAAA Congress “substantially reworked the 

language” of the definition of disability, in particular by adding a provision that a person meets 

the requirement of “being regarded as having such an impairment” by establishing that he or 

she “has been subjected to an action prohibited under this Act 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.”158 The court quoted explanatory language on the provision from the 

report of the House Committee on Education and Labor: 

The Committee therefore restores Congress's original intent by making clear that an 

individual meets the requirement of “being regarded as having such an impairment” if 

44
 
the individual shows that an action (e.g., disqualification from a job, program, or 

service) was taken because of an actual or perceived impairment, whether or not that 

impairment actually limits or is believed to limit a major life activity.159 

Pursuant to the new provision, the Sixth Circuit reasoned that the plaintiff was only required to 

raise a genuine issue of material fact about whether the defendants regarded him as having a 

mental or physical impairment, and was not required to present evidence of how or to what 

degree they believed the impairment affected him.160 The circuit court noted that Department of 

Justice (DOJ) Title II regulations, not yet amended to reflect any changes made in the ADAAA, 

recognize “drug addiction” as a “physical or mental impairment,” “to the extent that the DOJ's 

definition is persuasive.”161 The court’s note of caution was apparently because DOJ had not yet 

issued revisions to incorporate ADAAA changes, although there is no reason to believe the 

ADAAA in any way altered the status of “drug addiction” as a physical or mental impairment. 

The court directed that “[o]n remand, the district court should resolve, with the benefit of further 

briefing, what effect, if any, this regulation should have on its interpretation of ‘regarded as 

having such an impairment.’”162 Assuming that drug addiction was still a physical or mental 

impairment, the circuit court ruled that, since “there [was] no dispute that the defendants 

regarded Hilton as a former drug user,” there appeared to be a genuine issue of material fact as 

to whether the defendants regarded Hilton as having the physical or mental impairment of drug 

addiction.163 

The Second Circuit found that there was still another issue pending in the case as to whether 

“Hilton's suit for damages was precluded by the Eleventh Amendment as the district court 

appears to have held,” because the district court “was not express in its reasoning” on the 

Eleventh Amendment issue.164 Given that “Hilton may have presented an otherwise triable issue 

of fact regarding his ADA claim,” the circuit court indicated that it was “not inclined to affirm 

summary judgment upon so thin a reed.” Instead, it remanded Hilton's ADA claim “for 

clarification and for expansion of the district court's Eleventh Amendment analysis.”165 It directed 

the district court that if it determined that the defendants were not protected by the Eleventh 

Amendment, it should proceed to “consider whether drug addition constitutes a “physical or 

mental impairment,” ... and, if so, whether there are genuine issues of material fact with respect 

to the other elements of a Title II ADA claim.”166 Accordingly, the Second Circuit vacated the 

judgment of the district court dismissing Hilton's complaint and remanded the case for further 

45
 
 

consideration in light of the appellate court’s opinion.167 Without completely co-opting the 

authority of the district court on remand, the Court of Appeals gave a clear signal that the 

ADAAA might prove determinative on the plaintiff’s disability discrimination claim. 

6. Nasious v. Colorado 

The other Court of Appeals decision under the ADAAA involving a prisoner challenging alleged 

deficiencies in medical treatment is Nasious v. Colorado,168 a case brought by an inmate of a 

state prison in Colorado on his own without an attorney (pro se). The plaintiff sued prison 

officials for monetary damages and injunctive relief, asserting that he sustained injuries from 

defendants' “failure to treat or admit his disabilities,” that defendants were deliberately indifferent 

to his serious medical needs, and that denials of needed medical treatment to him violated, 

among other things, the Eighth Amendment (cruel and unusual punishment) and Title II of the 

ADA.169 The district court dismissed the plaintiff’s Eighth Amendment claims and the Tenth 

Circuit affirmed, finding that the plaintiff’s disagreement with defendants' medical opinions and 

their prescribed courses of treatment for his various conditions, and his allegations of incorrect 

treatment might, at best, establish medical malpractice, but did not rise to the level of an Eighth 

Amendment violation.170 

As to the plaintiff’s ADA claim, the district court granted, with one exception, summary judgment 

for the defendants on the grounds that some of the plaintiff's allegations were not cognizable 

under the ADA, that the plaintiff had failed to provide any evidence of a qualifying disability, and 

that the plaintiff had not produced any evidence he had been discriminated against because of 

a disability.171 The district court found that Nasious's ADA-related allegations were generally 

conclusory and non-specific with regard to disabilities; most of his allegations involved 

unspecified conditions and “serious medical needs.” The one exception was in regard to 

photophobia (severe sensitivity to, or abnormal intolerance of, visual reception of light). The 

district court ruled that Nasious could proceed with a claim that certain medical defendants 

violated Title II by failing to accommodate his photophobia while he worked at his prison job; the 

court limited this claim to injunctive relief only, and held that Nasious could not recover money 

damages.172 While this claim was pending, however, and had not been decided on the merits, 

46
 
 

the plaintiff was transferred to a halfway house, and, since he no longer worked at the job that 

gave rise to the photophobia problem, the district court dismissed the claim as moot. 

On appeal, Nasious continued to argue that he had a disability under the ADA. The Tenth 

Circuit noted that the events underlying the lawsuit “straddle[d]” the January 1, 2009, effective 

date of the ADAAA, “in which Congress provided for a broader construction of ‘disability’ than 

had previously applied.”173 In light of the ADAAA, the circuit court decided it would “assume 

solely for purposes of this appeal that Nasious suffers from a disability.” It chose to resolve the 

appeal, however, on “alternate grounds” asserted by the district court in its decision – that many 

of Nasious's ADA-related complaints concerned “defendants' failure to provide him the medical 

treatment he desires,” but “the ADA does not provide a remedy for medical negligence or a 

means to challenge ‘purely medical decisions’ regarding the propriety of a course of 

treatment.”174 The court concluded that the plaintiff had “failed to produce evidence to show 

defendants denied him access to a prison program or discriminated against him because of his 

asserted disabilities,” and affirmed the district court’s decision dismissing the plaintiff’s cause of 

action.175 Though the applicability of the ADAAA did not change the unfavorable final result 

against the plaintiff, it did, however, give him a fighting chance on the proof-of-disability issue 

and prevented his case from being lost on that ground. 

7. McElwee v. County of Orange 

The plaintiff in the case of McElwee v. County of Orange filed a lawsuit under Title II of the ADA 

and Section 504 of the Rehabilitation Act in which he alleged that officials at Valley View Center 

for Nursing Care and Rehabilitation, a federally funded facility operated by Orange County, New 

York, had discriminated against him on the basis of disability by dismissing him from a volunteer 

program at the facility.176 The Second Circuit described the plaintiff as follows: 

McElwee is a man in his mid-thirties with a neurodevelopmental disorder formally 

classified as Pervasive Developmental Disorder—Not Otherwise Specified (“PDD– 

NOS”) and informally called an autism spectrum disorder. He has an IQ of 79, placing 

him in the eighth percentile of intellectual functioning. He lives with his mother, has 

never held a job, and likely will always require assistance in managing money and 

completing non-routine tasks.177 

Actually, as the district court noted, the plaintiff's complaint was somewhat more clear and 

precise about his condition, alleging that he is a “disabled individual who has Asperger's 

47
 
Syndrome, a developmental disorder on the autism spectrum characterized by problems in 

socialization and communication skills. This disorder substantially limits plaintiff's ability to 

communicate and associate with his peers and colleagues.”178 

McElwee had participated in the volunteer program at Valley View for some 13 years, 

performing janitorial and housekeeping duties and transporting nursing home residents to 

religious and social events. The circuit court indicated that he “competently performed these 

assigned tasks without hindrance from his alleged disability.”179 In 2009, he was dismissed from 

Valley View's volunteer program for engaging in erratic and harassing behavior toward female 

staff members, including following them, staring at them, and saying inappropriate things.180 

The district court granted the defendants’ motion for summary judgment, holding that McElwee 

did not have a disability under the ADA or the Rehabilitation Act. Specifically, and somewhat 

surprisingly, the district court ruled that, “while Plaintiff may suffer from a diagnosed disorder, ... 

[he] has not demonstrated that his mental impairment substantially impairs his ability ‘to connect 

with others, i.e., to initiate contact with other people and respond to them, or to go among other 

people – at the most basic level of these activities.’”181 Basing its decision on the purported 

failure of the plaintiff to show that he had a disability, the court did not consider whether he was 

qualified to be a volunteer at Valley View nor whether the accommodations he sought were 

reasonable. 

 On appeal, McElwee contended that the district court had erred by failing to consider the 

ADAAA, which, as the Second Circuit characterized it, “amended the ADA to provide that the 

definition of ‘disability’ shall be construed broadly ‘to the maximum extent permitted by the terms 

of this chapter’ and ‘[t]he term ‘substantially limits' shall be interpreted consistently with the 

findings and purposes of the [ADAAA].”182 The court found that McElwee’s claims arose after 

the ADAAA took effect, and observed that “[b]oth McElwee and amici raise fair concerns as to 

whether the district court erred in not addressing whether McElwee was substantially limited in 

the major life activities of working, caring for himself, communicating, thinking, and brain 

function.”183 The court took note of the ADAAA provision declaring that “’major life activities 

include, but are not limited to’ caring for oneself, learning, concentrating, thinking, 

communicating, working, and the operation of major bodily functions such as brain function,” 

48
 
and of EEOC’s amended regulations instructing courts to construe the term “substantially limits” 

broadly and specifically identifying autism as an impairment that substantially limits brain 

function in virtually all cases.184 Having laid all this groundwork suggesting that the district court 

was wrong in holding that McElwee did not have a disability under the ADA as amended, 

however, the Second Circuit declined to take that step: “Nonetheless, we need not decide 

whether the district court erred in finding McElwee was not disabled because even assuming 

arguendo that a reasonable jury could find McElwee disabled, the County is entitled to summary 

judgment for the reasons set forth below.”185 The court then went on to rule that the plaintiff was 

not “emotionally able to conduct himself in an appropriate manner when dealing with residents, 

supervisors, and other staff members,” and “his sexual harassment of female staff members 

appears to have rendered him unqualified ....”186 The court also ruled that accommodations the 

plaintiff was requesting to enable him to perform the essential functions of his position – talking 

to has therapist about helping him to change his conduct and counseling his associates to 

better tolerate his behavior – were unreasonable as a matter of law.187 For these reasons, the 

Second Circuit affirmed the judgment of the District court granting summary judgment in favor of 

the defendants. Although the court ultimately rejected the plaintiff’s causes of action, it sent a 

clear message to district courts that they would be on shaky ground under the ADAAA in ruling 

that a person with limitations such as McElwee’s does not have a disability. 

Finding 4: Research disclosed only seven decisions so far in which Courts of Appeals 

have both found the ADAAA to be in effect and had occasion to apply it. These included 

three cases involving employment discrimination claims, one addressing a requested 

accommodation on a medical licensing exam, two dealing with prisoners’ claims of 

deficient medical treatment in state prisons, and one claim of discrimination in a 

volunteer program at a county rehabilitation center. 

Finding 5: The numbers of pertinent circuit court decisions are far too small for drawing 

any broad or authoritative conclusions. The most striking revelation about the seven 

cases, however, was that in six out of the seven the plaintiff prevailed on the issue of 

having a disability at the stage of the proceedings before the appellate court. This can be 

viewed as an early indication of a positive turnaround in outcomes on the definition-ofdisability issue attributable to the ADAAA. 

49
 
Finding 6: In Allen v. SouthCrest Hosp., the one case out of the seven in which the 

plaintiff did not prevail on the showing of disability, the Tenth Circuit took a more 

exacting and critical look at the plaintiff’s showing of a disability – an approach that, in 

disregarding the ADAAA’s guidance supporting a broader, less restrictive approach to 

the elements of “disability” and the avoidance of “extensive analysis,” harkened back to 

pre-ADAAA scrutiny of a plaintiff’s claim of having a disability. Whether this decision will 

have a regressive effect on future decisions is a matter of concern to which close 

attention should be paid. 

V. ISSUE-BY-ISSUE ANALYSIS OF FEDERAL COURT DECISIONS DISCUSSING 

THE ADAAA 

NCD undertook this project to examine the case law to get a sense of how the ADAAA is 

working in regard to key issues it was intended to address. These key issues, along with some 

particular questions of interest to NCD, are addressed one-by-one in this section. The seven 

circuit court decisions in which the courts applied the ADAAA are described in some detail in the 

previous section. The current section focuses primarily on the decisions of the federal district 

courts, augmented as necessary by the occasional mention of circuit court decisions that may 

be especially pertinent to a particular issue. The methodology employed in trying to derive 

useful, informative conclusions and observations from the large body of court rulings is 

traditional scholarly legal analysis designed to identify emerging principles and trends in the 

emanations from the courts. 

Some overall preliminary observations regarding the status of the case law are warranted. 

Perhaps not unexpectedly, the decisions are far from homogenous. Some decisions are 

favorable to plaintiffs based on the ADAAA; some apply the ADAAA and yet the courts rule 

against plaintiffs on the showing of disability. Some courts recognize that the ADAAA is in effect 

and then do not apply it. Some mention the ADAAA in passing and then proceed as if it did not 

exist. Some courts misstate or misinterpret elements of the ADAAA. Some decisions are much 

better reasoned or written than others; from time to time, courts do an excellent job of explaining 

the content and implications of the ADAAA, while every once in awhile a clinker of a juridical 

opinion is issued. 

50
 
Within this bubbling mixture of judicial decisions of varying quality, approaches, and results, 

however, it is possible to tease out some clear doctrinal developments, directions, and trends in 

the law under the ADAAA as meted out by the U.S. district courts in the cases to date. On many 

issues there is considerable coherency and common ground in the decisions. The remainder of 

this section provides analysis of major themes and patterns that are emerging in regard to the 

articulation, interpretation, and application by the courts of the principal elements of the ADAAA. 

Of the 810 district court decisions identified as mentioning the ADAAA, some basic information 

was collected on all of them, over 300 were analyzed in some detail, and more than 200 of them 

were subjected to methodical, in-depth analysis. Of the latter category, in nearly four out of five 

decisions (78 percent), the court found the ADAAA was in effect at the time the alleged 

discriminatory actions took place – quite a contrast to the paucity of decisions to date in which 

the circuit courts have found that the ADAAA was in effect. Among the decisions in which the 

ADAAA was found to be in effect, some 90% involved claims of employment discrimination. 

Finding 7: In approximately four out of five of the federal district court decisions that 

were analyzed methodically, the court found the ADAAA was in effect at the time the 

alleged discriminatory actions took place; this is in sharp contrast to the small 

percentage of cases that have made their way to the Courts of Appeals in which the 

courts have found that the ADAAA was in effect. Among the district court decisions in 

which the ADAAA was found to be in effect, about 90% involved claims of employment 

discrimination. 

A. General Re-Broadening of ADA Coverage 

The first stated purpose of the ADAAA is “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.”

188 The substantive provisions of the ADAAA follow 

through directly on this stated objective, particularly in declaring as a “Rule of Construction” that 

“[t]he definition of disability in this Act shall be construed in favor of broad coverage of 

individuals under this Act, to the maximum extent permitted by the terms of this Act.”189 The 

51
 
managers of the ADAAA bill in the Senate underscored the fundamental congressional intent to 

broaden the coverage of the ADA in a statement they inserted into the Congressional Record, in 

which they declared: 

It is our expectation that because the bill makes the definition of disability more 

generous, some people who were not covered before will now be covered.... This bill 

lowers the standard for determining whether an impairment constitute[s] a disability 

and reaffirms the intent of Congress that the definition of disability in the ADA is to be 

interpreted broadly and inclusively.190 

The EEOC regulations for implementing the ADAAA revisions echo the same note: 

The primary purpose of the ADAAA is to make it easier for people with disabilities to 

obtain protection under the ADA. Consistent with the Amendments Act's purpose of 

reinstating a broad scope of protection under the ADA, the definition of ‘disability’ in 

this part shall be construed broadly in favor of expansive coverage to the maximum 

extent permitted by the terms of the ADA.191 

The statutory mandate for interpreting coverage of the ADA broadly is thus manifestly clear and 

unambiguous. And that message has unquestionably been received by the courts. As 

discussed in section V of this report, the small number of Courts of Appeals’ decisions in which 

the courts have applied the ADAAA, as well as many of those in decisions which the courts 

found the ADAAA not to be in effect, expressly recognize the centrality under the ADAAA of 

broadening coverage – expanding the class of people eligible for protection from discrimination 

on the basis of disability – under the ADA. 

The decisions of district courts discussing the ADAAA are likewise replete with statements of 

judicial recognition and affirmation of the expansion-of-coverage first principle of the Act. In one 

recent decision, for example, the District Court for the Western District of Pennsylvania 

declared: 

Congress amended the ADA by passing the ADA Amendments Act of 2008 

(“ADAAA”). Congress did this in order to reinstate broad ADA coverage of individuals 

because of its conclusion that the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. 

Williams and Sutton v. United Airlines, Inc. had improvidently narrowed the scope of 

protection intended to be afforded in the ADA. Congress thus instructed the courts 

that they were interpreting the statute too restrictively.192 

The same court had previously described the central purpose of the ADAAA more succinctly by 

writing that “[t]he ADAAA ‘broadened the category of individuals entitled to statutory protection 

from discrimination under the ADA.’”193 A district court in Florida stated that “The ADAAA 

52
 
amended the ADA to, among other things, promulgate a more liberal standard of the term 

‘disabled,’ making it significantly easier for a plaintiff to show disability.”194 The District Court for 

South Dakota observed, simply, that “[t]he ADAAA ‘broadened the definition of what constitutes 

a disability....’”195 

Numerous other courts have used slightly different variations on the same theme, as, for 

example, the following: “[The court is m]indful of Congress's mandate to construe the ADA 

broadly when defining a disability and the non-onerous burden on the plaintiff at the initial stage 

of the McDonnell–Douglas–Burdine analysis ....”;196 “The ADAAA provides more generous 

coverage than the ADA by providing that the definition of disability ‘shall be construed in favor of 

broad coverage of individuals ... to the maximum extent permitted by the terms of [the Act.]’”;197 

“Under [the ADAAA], the definition of disability was broadened to increase the coverage 

available to individuals”;198”The ADAAA seeks to broaden the scope of disabilities covered by 

the ADA after that scope had been narrowed by Supreme Court interpretation”;199 

“The ADA Amendments Act ... broadened the definition of a disability under the ADA”;200 

“Congress amended the ADA to broaden its scope by expanding the definition of disability, 

which had been narrowed by Supreme Court interpretation”;201 “The ADA's definition of 

‘disability’ was substantially broadened by the Americans with Disabilities Act Amendments Act 

of 2008”;202 ”Congress amended the ADA to broaden its coverage by expanding the definition of 

what qualified as a ‘disability.’ This expansion was undertaken in response to court decisions 

that Congress felt ‘had created an inappropriately high level of limitation necessary to obtain 

coverage under the ADA”;203 “The ADA Amendments Act of 2008 (“ADAAA”) made it easier for 

plaintiffs to prove they are ‘disabled’ under the ADA, providing that a disability ‘shall be 

construed in favor of broad coverage of individuals’ and that a finding of disability ‘should not 

demand extensive analysis’”;204 “We construe this definition [of disability under the ADAAA] 

liberally, with an eye towards ‘broad coverage of individuals under’ the ADA”;205 “The 

amendments broadened the scope of the ADA by expanding the definition of disability, which 

had been narrowed by Supreme Court interpretation”;206 “The ADA Amendments Act of 2008 

(‘ADAAA’) was intended to make it easier for plaintiffs to prove they are disabled under the 

ADA”;207 “In the wake of the ADA Amendments Act of 2008 (‘ADAAA’), it is now easier for a 

plaintiff to prove that he or she has a ‘disability’ within the meaning of the ADA”;208 “Following 

the ADA Amendments Act of 2008 (‘ADAAA’), ‘disability’ is construed broadly and to the fullest 

53
 
extent allowed by the ADA's terms”;209 “The ADA's definition of ‘disability’ was substantially 

broadened by the Americans with Disabilities Act Amendments Act”;210 “This Act provides that 

the definition of disability should be construed in favor of broad coverage; its purpose was in 

response to the continual limiting by the courts of what constitutes a disability under the 

ADAAA”;211 “The Amendments expand the definition of ‘disability’ to include impairments which 

had been interpreted by the Supreme Court as being outside the ADA's protection”;212 

“Congress explicitly indicated its disagreement with the Supreme Court's narrowing of the reach 

of the ADA and reiterated its belief that the concept of ‘disability’ should be read broadly.”;213 

“[C]ourts that have had occasion to consider the effects of the ADAAA ... apply it broadly to 

encompass disabilities that previously might have been excluded.”214 This unwieldy list of 

examples is but a small representation of similar expressions of awareness and understanding 

of the central thrust of broadening ADA coverage that pervade judicial discussions of the 

ADAAA. 

Apart from their own descriptions of the primary goal of the ADAAA, numerous courts routinely 

quote the statutory and regulatory language that mandates expansive coverage of disabilities, 

sometimes in abbreviated form, sometimes more extensively. The flavor of a moderate version 

of such a presentation can be garnered by looking at a few paragraphs of the decision in the 

case of Cordova v. University of Notre Dame Du Lac.

215 In that case, the U.S. District Court for 

the Northern District of Indiana began its analysis of the ADAAA as follows: 

Effective January 1, 2009, the ADA was amended to “carry out the ADA's objectives” 

by “reinstating a broad scope of protection.” See ADA Amendments Act of 2008 

(“ADAAA”). The ADAAA itself is described as “[a]n Act to restore the intent and 

protections of the Americans with Disabilities Act of 1990,” and in its findings 

Congress specifically noted that the original intent of the ADA was to provide “broad 

coverage” and a “clear and comprehensive national mandate for the elimination of 

discrimination against individuals with disabilities.” Specifically, Congress found that 

the United States Supreme Court had improperly narrowed the protection intended to 

be afforded under the ADA, and the ADAAA rejected the holdings of Sutton v. United 

Air Lines, Inc., and Toyota Motor Mfg., Ky., Inc. v. Williams,. Importantly, the ADAAA 

left the ADA's three-category definition of “disability” intact but clarified how the 

categories are to be interpreted. 

For example, the ADAAA now provides a specific definition for the term “Major Life 

Activities” whereas prior to the amendments, courts frequently looked to the 

regulations interpreting the Rehabilitation Act of 1973 and the EEOC regulations for 

54
 
guidance. Congress also added specific “[r]ules of construction regarding the 

definition of disability” which provide: 

(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. 

(B) The term “substantially limits” shall be interpreted consistently with the 

findings and purposes of the ADA Amendments Act of 2008. 

(C) An impairment that substantially limits one major life activity need not 

limit other major life activities in order to be considered a disability. 

(D) An impairment that is episodic or in remission is a disability if it would 

substantially limit a major life activity when active. 

(E) (i) The determination of whether an impairment substantially limits a 

major life activity shall be made without regard to the ameliorative effects of 

mitigating measures .... 

In essence, the ADAAA reestablished the original intent and expansive scope of the 

ADA.216 

Frequently the courts have augmented their statutory analysis by focusing considerably on the 

EEOC regulations implementing the ADAAA. In Healy v. National Bd. of Osteopathic Medical 

Examiners, Inc., for example, the court commenced its analysis of the Act as follows: 

In 2008, Congress amended the ADA “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.” These 

amendments included significant changes to the “substantially limits” standard and 

expressly overruled the strict, demanding standard articulated by the United States 

Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams. Accordingly, the 

regulations now provide: 

(i) The term “substantially limits” shall be construed broadly in favor of 

expansive coverage, to the maximum extent permitted by the terms of the 

ADA. “Substantially limits” is not meant to be a demanding standard. 

(ii) An impairment is a disability within the meaning of this section if it 

substantially limits the ability of an individual to perform a major life activity as 

compared to most people in the general population. An impairment need not 

prevent, or significantly or severely restrict, the individual from performing a 

major life activity in order to be considered substantially limiting. Nonetheless, 

not every impairment will constitute a disability within the meaning of this 

section. 

(iii) The primary object of attention in cases brought under the ADA should be 

whether covered entities have complied with their obligations and whether 

discrimination has occurred, not whether an individual's impairment 

substantially limits a major life activity. Accordingly, the threshold issue of 

55
 
whether an impairment “substantially limits” a major life activity should not 

demand extensive analysis. 

(iv) The determination of whether an impairment substantially limits a major life 

activity requires an individualized assessment. However, in making this 

assessment, the term “substantially limits” shall be interpreted and applied to 

require a degree of functional limitation that is lower than the standard for 

“substantially limits” applied prior to the ADAAA.217 

Particularly extensive extracts from the revised regulatory provisions on the definition of 

disability and its “substantially limits” element are found in the court’s decision in E.E.O.C. v. 

Princeton Healthcare System,

218 where the court devoted nearly four pages of its decision to the 

regulations. 

As the preceding excerpts suggest, in attempting to follow the broad-ADA-coverage mandate, 

the courts have had to pay particular attention to the “substantially limits” standard in the 

statutory language of the ADAAA, as clarified and elaborated on in the regulations and 

regulatory guidance. The district courts have characteristically referred to or quoted the 

statutory and regulation provisions and commentary relating to some combination of the 

following standards regarding the determination whether a physical or mental impairment 

substantially limits a major life activity: 

	 “Substantially limits” is to be interpreted consistently with the findings and purposes of 

the ADAAA. 

	 “Substantially limits” is not a demanding standard, but is to be construed broadly in favor 

of expansive coverage, to the maximum extent permitted by the terms of the ADA. 

	 The standard for whether an impairment is a disability is whether it substantially limits the 

ability of an individual to perform a major life activity as compared to most people in the 

general population. 

	 “Substantially limits” requires a degree of functional limitation lower than the standard 

applied prior to the ADAAA. 

	 An impairment does not need to prevent, or significantly or severely restrict, the 

individual from performing a major life activity in order to be considered substantially 

limiting. 

	 Not every impairment constitutes a disability. 

	 The crucial determinations in an ADA case are whether covered entities have met their 

obligations and whether discrimination has occurred, not whether the individual's 

impairment substantially limits a major life activity. 

56
 
 

	 The threshold issue of whether an impairment “substantially limits” a major life activity 

should not demand extensive analysis. 

	 Determining whether an impairment substantially limits a major life activity requires an 

individualized assessment. 

	 Determining whether an impairment substantially limits a major life activity will normally 

not require scientific, medical, or statistical analysis, although such evidence is 

permissible. 

	 An impairment that substantially limits one major life activity does not have to limit other 

major life activities in order to be considered a disability. 

	 An impairment that is episodic or in remission is a disability if it would substantially limit a 

major life activity when active. 

	 The determination whether an impairment substantially limits a major life activity is to be 

made without regard to the ameliorative effects of mitigating measures. 

While no district court decision was identified that mentioned all of these requirements for 

proper application of the “substantially limits” criterion, most of the courts analyzing the ADAAA 

have recited or discussed a few or several of them. Overall, the court decisions reflect 

widespread recognition and acceptance of these principles and precepts for ascertaining 

whether an impairment constitutes a disability under the ADAAA-revised ADA. The next four 

subsections address specific issue areas within the overarching determination of disability that 

have been particularly affected by ADAAA changes. 

Finding 8: The decisions of the district courts under the ADAAA reflect widespread 

awareness of, and receptivity to, the statutory mandate for interpreting coverage of the 

ADA broadly. Many are replete with statements of judicial recognition and affirmation of 

the expansion-of-coverage first principle of the Act, and of a number of the elements 

established in the Act and the regulations for broad construction of “substantially 

limiting a major life activity.” 

B. Major Life Activities, Major Bodily Functions, and Predictable 

Assessments of Disability 

The ADAAA made significant changes to the “major life activities” element of the definition of 

disability by lowering the bar for inclusion of an activity in the category, by including in the 

57
 
statute a non-exhaustive list of example of major life activities, and by incorporating a new 

category of “major bodily functions.” 

In the purposes section of the statute, Congress declared it an objective of the Act to cast aside 

restrictive limitations on “major life activities” imposed by the Supreme Court in Toyota Motor 

Manufacturing, Kentucky, Inc. v. Williams, including the rulings that the term “major” in the 

definition of disability under the ADA “need[s] to be interpreted strictly to create a demanding 

standard for qualifying as disabled,” and that a “major life activity” under the ADA means an 

activity that is “of central importance to most people’s daily lives.”219 In its Regulatory Guidance, 

the EEOC observed: 

The ADAAA provided significant new guidance and clarification on the subject of 

“major life activities.” As the legislative history of the Amendments Act explains, 

Congress anticipated that protection under the ADA would now extend to a wider 

range of cases, in part as a result of the expansion of the category of major life 

activities.220 

Such broadening of the scope of possible major life activities may be exercised by the federal 

ADA enforcement agencies who may use it as a rationale for adding to the list of examples by 

regulation, as EEOC has done in its ADAAA regulations. It also affords some support for 

plaintiffs who contend that they are substantially limited in some major life activity not currently 

included on the list of examples in the statute or regulations, and it can provide a rationale for 

courts to hold that additional activities should be recognized as major life activities. 

As originally passed, the ADA did not contain a definition of the term “major life activity.” Section 

504 regulations had included a definition-by-examples (“Major life activities means functions 

such as ...,” followed by a list of examples). That definition was quoted in committee reports on 

the ADA and incorporated into the ADA regulations of the EEOC. In the ADAAA, a similar 

definition was added, for the first time, to the statutory language of the ADA.221 It declares that 

“major life activities include, but are not limited to, caring for oneself, performing manual tasks, 

seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, 

learning, reading, concentrating, thinking, communicating, and working.”222 In its amended 

regulations implementing the ADAAA, the EEOC added three more activities – sitting, reaching, 

and interacting with others – to the list of examples.223 

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In its ADAAA regulatory guidance, the EEOC underscored that the examples of major life 

activities in the ADAAA and its regulations “are illustrative and non-exhaustive, and the absence 

of a particular life activity or bodily function from the examples does not create a negative 

implication as to whether an omitted activity or function constitutes a major life activity under the 

statute.”224 The Commission added that it anticipated, in light of the ADAAA mandate that the 

definition of disability be construed broadly, that courts would recognize additional major life 

activities.225 In an unusual case, a court encountered the question of whether “waking up” 

constituted a major life activity. Thomas v. Bala Nursing & Retirement Center involved the ADA 

claim of a nurse practitioner with anemia who had been terminated from her job for tardiness in 

arriving at work.226 She alleged her anemia “affected her ability to stand for a long period of 

time, occasionally limited her ability to think or concentrate, caused shortness of breath when 

she would walk fast or run, and caused her to sleep up to twelve hours per day,” and contended 

that, therefore, she was substantially limited in the major life activities of standing, walking, 

concentrating, sleeping; and breathing.227 At oral argument, the defendant made the innovative 

argument that the major life activity at issue should be characterized as “waking up” instead of 

“sleeping,” and that “sleeping longer than the average individual is hardly a substantial limitation 

for sleeping.”228 Considering that waking up might be considered “inescapably central to 

anyone's life,” however, the District Court for the Eastern District of Pennsylvania responded 

that “at this time we cannot say as a matter of law that “waking up” is not a major life activity.”229 

“Moreover,” said the court, “even if we were to classify the major life activity as ‘waking up,’ we 

could not say that it was not substantially limited for the same reasons given for ‘sleeping.’ If 

sleeping meets this standard, then it is hard to see how the opposite (waking up) would fail 

to.”230 

Because the expansion of the list of examples of major life activities was prescribed in statutory 

and regulatory provisions, the courts seem to have had no hesitation or qualms about accepting 

and applying it. In the district court decisions analyzed, the expanded (by the ADAAA) and 

further-expanded (by regulation) lists of major life activities have been widely recited and 

applied; the additions made by the EEOC have not encountered any significant judicial 

resistance.231 At least one court, however, has expressed less-than-complete approbation of the 

more extensive list, even while applying it. The District Court for the Middle District of Alabama 

declared that “[t]his expanded list, for better or worse, makes a person afflicted with a common, 

59
 
minor condition ‘just as disabled as a wheelchair-bound paraplegic—if only for the purposes of 

disability law.’”232 Such grousing is, however, not at all typical, and most courts seem to have 

accepted the growth of the list of major life activities without expression of reservations. 

The ADAAA made an even more innovative and dramatic expansion of major life activities 

under the ADA by adding a totally new component – “major bodily functions” – to it. The new 

provision states that “a major life activity also includes the operation of a major bodily function, 

including but not limited to, functions of the immune system, normal cell growth, digestive, 

bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive 

functions.”233 As with the list of examples of other major life activities, EEOC has emphasized 

that the list of included major bodily functions is “illustrative and non-exhaustive,” and that the 

absence of a bodily function from the list creates no negative implication that it does not 

constitute a major bodily function under the ADA.234 Indeed, the EEOC decided to augment the 

statutory list of examples of major bodily functions itself; the EEOC regulations added functions 

of the special sense organs and skin; and genitourinary, cardiovascular, hemic, lymphatic and 

musculoskeletal functions.235 The regulations also provide that “[t]he operation of a major bodily 

function includes the operation of an individual organ within a body system,”236 which the 

Commission has explained “would include, for example, the operation of the kidney, liver, 

pancreas, or other organs.”237 

EEOC observed that in the legislative history of the ADAAA, Congress expressed its 

expectation that the inclusion of major bodily functions would engender more expansive 

coverage, and that it would address problematic court decisions in which courts had struggled 

to determine whether such conditions as HIV infection, cirrhosis of the liver resulting from 

Hepatitis B, and breast cancer substantially limited a major life activity.238 And EEOC indicated 

how the major bodily functions component should play out in determining whether various 

impairments affect a major life activity: 

The link between particular impairments and various major bodily functions should not 

be difficult to identify. Because impairments, by definition, affect the functioning of 

body systems, they will generally affect major bodily functions. For example, cancer 

affects an individual's normal cell growth; diabetes affects the operation of the 

pancreas and also the function of the endocrine system; and Human 

Immunodeficiency Virus (HIV) infection affects the immune system. Likewise, sickle 

60
 
cell disease affects the functions of the hemic system, lymphedema affects lymphatic 

functions, and rheumatoid arthritis affects musculoskeletal functions.239 

The recognition that some impairments are intrinsically linked to certain major bodily functions, 

or other major life activities, helped to precipitate the phenomenon that EEOC refers to in its 

regulations as “predictable assessments.” “That phrase is the heading of Section 1630.2(j)(3) of 

the ADAAA regulations, which begins with a statement that the principles set forth in other 

regulatory provisions for more generous coverage under the ADA are intended to provide “a 

framework that is predictable, consistent, and workable ....”240 Accordingly, upon individualized 

assessment, some types of impairments, “[g]iven their inherent nature, ... will, as a factual 

matter, virtually always be found to impose a substantial limitation on a major life activity. 

Therefore, with respect to these types of impairments, the necessary individualized assessment 

should be particularly simple and straightforward.”241 This led EEOC to the following significant 

regulatory pronouncement: 

it should easily be concluded that the following types of impairments will, at a 

minimum, substantially limit the major life activities indicated: Deafness substantially 

limits hearing; blindness substantially limits seeing; an intellectual disability (formerly 

termed mental retardation) substantially limits brain function; partially or completely 

missing limbs or mobility impairments requiring the use of a wheelchair substantially 

limit musculoskeletal function; autism substantially limits brain function; cancer 

substantially limits normal cell growth; cerebral palsy substantially limits brain 

function; diabetes substantially limits endocrine function; epilepsy substantially limits 

neurological function; Human Immunodeficiency Virus (HIV) infection substantially 

limits immune function; multiple sclerosis substantially limits neurological function; 

muscular dystrophy substantially limits neurological function; and major depressive 

disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive 

disorder, and schizophrenia substantially limit brain function.242 

The Commission added that “[t]he types of impairments described in this section may 

substantially limit additional major life activities not explicitly listed above.”243 

The regulatory guidance noted that, even before the ADAAA, some courts had recognized that 

“certain impairments are by their very nature substantially limiting: the major life activity of 

seeing, for example, is always substantially limited by blindness”; “with respect to these types of 

impairments, the necessary individualized assessment should be particularly simple and 

straightforward.”244 In the regulatory guidance EEOC then added some other such conditions: 

For example, mobility impairments requiring the use of a wheelchair substantially limit 

the major life activity of walking. Diabetes may substantially limit major life activities 

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such as eating, sleeping, and thinking. Major depressive disorder may substantially 

limit major life activities such as thinking, concentrating, sleeping, and interacting with 

others. Multiple sclerosis may substantially limit major life activities such as walking, 

bending, and lifting.245 

It also took note of expressions of congressional intent that conditions such as amputation, 

cancer, cerebral palsy, developmental disabilities, diabetes, epilepsy, heart conditions, 

intellectual disabilities, mental illnesses multiple sclerosis, and muscular dystrophy would be 

protected from discrimination under the ADA. 

In the judicial arena, courts have made some strides in incorporating major bodily functions and 

predictable disabilities analysis into determinations of disability under the ADA. For example, in 

the cases examined, district courts have held that post-traumatic stress disorder is an 

impairment that substantially limits the major bodily activity of brain function;246 that cancer 

substantially limits the major bodily activity of normal cell growth (whether in remission or 

not);247 that non-cancerous, but not benign, breast disease substantially limited major bodily 

activities of normal cell growth and endocrine and reproductive functions;248 that multiple 

sclerosis substantially limits major life activities including neurological functions;249 that Hepatitis 

C substantially limits major life activities of working, eating, sleeping, and major bodily functions 

of immune system, digestive, bowel, and bladder function;250 

that Osler–Weber–Rendu syndrome, a chronic blood disorder that causes decreased oxygen in 

the blood, substantially limits the major life activities of breathing, respiration, and/or 

circulation;251 that HIV-positive status substantially limited the major life activity of immune 

system function;252 that osteogenesis imperfecta, a congenital condition frequently causing 

extremely fragile bones, reduced size, and mobility limitations, substantially limited the major 

bodily function of normal cell growth;253 that a testicular problem causing inability to engage in 

sexual intercourse was sufficient to establish substantial limitation on the reproductive 

function;254 that surgical removal of stomach and other parts of gastrointestinal system 

substantially limits major life activity of eating, and major bodily functions of digestive and bowel 

functions;255 and that “impairments of spinal stenosis, cervical disc disease, neural foraminal 

stenosis, and cervical radiculopathy” substantially limited the major life activity of the operation 

of the musculoskeletal system.256 

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Not every court, however, has gotten the message yet. In one case, a district court ruled that a 

plaintiff with cancer had not pled that he had a disability. The court stated that the plaintiff had 

alleged “that he has Adenoid Cystic Carcinoma, a form of cancer, and therefore, that he has an 

ADAAA disability. However, merely having cancer – which, though [it] may be an ‘impairment’ 

as defined under the EEOC regulations – is not enough to support an inference that [the 

plaintiff] has an actual disability.”257 The court made no mention of the major bodily function of 

normal cell growth, nor of EEOC’s guidance that cancer is a condition that “virtually always” 

imposes a substantial limitation on a major life activity, and the court even relied upon preADAAA precedent that cancer does not necessarily constitute a disability.258 In another case, a 

district court ruled that a plaintiff with trigeminal neuralgia (a chronic disorder of the trigeminal 

nerve in the head, which causes extreme, sporadic, sudden, incapacitating face pain) had 

established a prima facie case of discrimination under the ADA pursuant to the broad coverage 

mandated by the ADAAA.259 However, while the court mentioned the “neurological system” as 

one of the body systems whose limitation constitutes an impairment under the regulations and 

the plaintiff claimed that her condition qualified as a physical impairment because it was a 

physiological condition that “affects the body's neurological system,” neither the court nor the 

plaintiff’s attorney seems to have been aware that the “neurological function” is a “major bodily 

function” – a category of major life activity that might have greatly simplified the analysis of the 

plaintiff’s condition as a disability.260 

The lists of examples of major bodily functions and virtually-always disabilities are significant, 

complex innovations that are still quite new. The idea of a bodily function, which may be largely 

or completely involuntary (e.g., cell growth, respiratory and endocrine systems, and the 

autonomic nervous system) being an “activity” is somewhat counterintuitive, even a bit illogical. 

And the notion of “predictable,” “individualized” assessments of conditions that are not always, 

but virtually always, disabilities is not instantly comprehensible. It takes a while for such 

advances to be circulated within the judiciary and the rest of the legal community, and even 

longer for their meaning and use to be clearly understood and accepted. A certain amount of lag 

time is to be expected before these concepts become fully operational and mainstream. The 

courts have made a good start at integrating these analytical innovations into their decisionmaking, but it will take a while longer for comfortable proficiency in applying them to become 

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widespread and commonplace, in furtherance of the ADAAA objective of expanding protection 

under the ADA. 

Finding 9: With occasional exceptions, the decisions of the district courts under the 

ADAAA have recognized and applied changes to the “major life activities” element of the 

definition of disability made by the Act in: (1) decreasing the restrictiveness of standards 

for inclusion of an activity in the category, (2) providing a non-exhaustive list of 

examples of major life activities, and (3) incorporating a new category of “major bodily 

functions.” The “major bodily functions” provision is a major addition to the ADA, and 

so far seems to be accomplishing much of what it was intended by Congress to do in 

engendering more expansive coverage, 

Finding 10: The EEOC’s issuance in its ADAAA regulations of a non-exhaustive list of 

conditions that are virtually always disabilities, for which individualized assessment 

should be particularly simple and straightforward, has generally been embraced by the 

courts. To date, plaintiffs having, among a variety of other conditions, post-traumatic 

stress disorder (substantially limits the major bodily activity of brain function), cancer 

(substantially limits normal cell growth), multiple sclerosis (substantially limits 

neurological functions), and HIV-positive status (substantially limits immune system 

function) have successfully availed themselves of the “virtually always” status in court. 

Finding 11: Revisions under the ADAAA relating to broadening the list of examples of 

major life activities, incorporating major bodily functions, and developing a nonexhaustive list of conditions for which there should be “predictable assessments” of 

disability are not self-evident, but somewhat challenging. Although the courts have 

made a good start, routine acceptance and mastery by courts and attorneys of these 

innovations will not occur easily or quickly. Additional judicial and professional 

education efforts devoted to these matters would greatly facilitate their broader 

dissemination and application, resulting in more informed and perceptive court 

decisions. 

C. Mitigating Measures 

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The ADAAA explicitly rejected the ruling in the Supreme Court’s decision in Sutton v. United Air 

Lines, Inc., that “[i]f a person is taking measures to correct for, or mitigate, a physical or mental 

impairment, the effects of those measures – both positive and negative-must be taken into 

account when judging whether that person is ‘substantially limited’ in a major life activity and 

thus ‘disabled’ under the Act.”261 In its Righting the ADA report, NCD had described the jolt to 

ADA law that resulted from that harmful ruling and its progeny: 

In a sharp break from the legislative history of the ADA, the position of the executive 

agencies responsible for enforcing the ADA, and the prior rulings of eight of the nine 

federal courts of appeal that had addressed the issue, the Supreme Court decided, in 

its rulings in the Sutton v. United Airlines, Inc., Murphy v. United Parcel Service, and 

Albertson's, Inc. v. Kirkingburg cases, that mitigating measures should be considered 

in determining whether an individual has a disability under the ADA. The Supreme 

Court's position on mitigating measures ignores the rationale that led courts, 

regulatory agencies, and Congress to take a contrary position—that unless you 

disregard mitigating measures in determining eligibility for ADA protection, you shield 

much discrimination on the basis of disability from effective challenge.262 

In the ADAAA, Congress responded to the problematic decisions by articulating a congressional 

purpose to reject the requirement in Sutton and its companion cases regarding mitigating 

measures, and by enacting a provision declaring in no uncertain terms that “[t]he determination 

of whether an impairment substantially limits a major life activity shall be made without regard to 

the ameliorative effects of mitigating measures ....,” followed by an extensive list of examples of 

types of mitigating measures.263 The EEOC ADAAA regulations essentially paraphrase the 

statutory language on mitigating measures,264 while the regulatory guidance offers some 

additional explanatory and elaborative commentary.265 

Probably because the statutory change regarding consideration of mitigating measures was 

unequivocal and not particularly complicated, and, in fact, represented a return to a widely 

accepted analytical premise abruptly discarded by the Supreme Court, the courts have had little 

trouble reincorporating it into the legal framework for analyzing ADA claims. A straightforward 

example was provided in the case of Orne v. Christie, in which a senior legal counsel with a 

state corporation commission developed sleep apnea, and allegedly was given a choice 

between termination from his job and demotion.266 Alleging that his sleep apnea affected his 

sleep and concentration, the plaintiff filed an ADA claim charging that he had been subjected to 

an adverse employment action because of his disability. Some time prior to the adverse 

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employment action, a sleep disorder specialist treated the plaintiff with a Continuous Positive 

Airway Pressure (CPAP) machine, which allowed him to sleep, work, and concentrate without 

being affected by his condition.267 The defendant commission argued that the plaintiff “cannot 

be considered ‘disabled’ under the ADA because he uses a CPAP machine to ‘relieve’ or ‘cure’ 

his sleep apnea,” and that, at the time he lost his position as Senior Counsel, the plaintiff was 

no longer “impaired” or “affected by his sleep apnea.”268 Taking the mitigating measures 

provision in the ADAAAA into consideration, the District Court for the Eastern District of Virginia 

ruled the commission's argument was without merit. It acknowledged that some other courts 

had held that sleep apnea does not qualify as a disability, but noted that “those courts applied 

the law as it existed prior to the ADA Amendments Act of 2008.”269 The court continued its 

analysis as follows: 

Under the 2008 amendments, the determination of whether an impairment 

“substantially limits a major life activity” is now to be made “without regard to the 

ameliorative effects of mitigating measures.” These mitigating measures include 

“oxygen therapy equipment and supplies,” “the use of assistive technology,” and 

“reasonable accommodations or auxiliary aids.” The use of a CPAP machine, which 

provides Orne with a steady supply of oxygen, thus counts as a mitigating measure 

whose effect is to be disregarded.270 

Considering the plaintiff’s sleep apnea in its untreated state, the court ruled that the plaintiff’s 

assertions that his condition affected multiple major life activities were sufficient to defeat the 

commission's motion to dismiss on the ground that he did not have a disability, and the court 

denied the motion. 

Another case involved a plaintiff who used a cane to get around and claimed that she was 

substantially limited in the major life activity of walking.271 The defendant countered by citing 

cases holding that “mere use of a cane does not establish ‘disability’ for purposes of the 

ADA.”272 The District Court for Maryland observed that the precedents cited by the defendant 

predated the enactment of the ADAAA, and that “the continued validity of such cases is 

suspect,”273 and went on to discuss the impact of the ADAAA in rejecting the Sutton decision’s 

stance on mitigating measures: 

the ADA, as amended by the ADAAA, requires that the “definition of disability ... shall 

be construed in favor of broad coverage,” and provides specifically that the 

“determination of whether an impairment substantially limits a major life activity shall 

be made without regard to the ameliorative effects of mitigating measures such as ... 

equipment, or ... mobility devices ....“ * * * Thus, under the ADAAA, the fact that 

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plaintiff was able, according to defendant, to travel to and from work and perform the 

functions of her job without substantial limitation, through the use of a cane, does not 

resolve whether she has a “disability” within the meaning of the ADA. The relevant 

question is whether plaintiff's mobility would be substantially limited without a cane.274 

Although the parties had not yet briefed the issue of the ADAAA’s impact, the court assumed, 

arguendo, for purposes of the pending motion for summary judgment, that the plaintiff had 

adequately alleged that she had a disability.275 

Harty v. City of Sanford is another example of a decision in which the court recognized and 

applied the ADAAA’s revised mitigating measures standard, albeit in that case with somewhat 

measured enthusiasm.276 The plaintiff had suffered a knee injury that did not heal completely, 

resulting in his needing to take pain medication and to use a cane or crutches to assist in 

walking, and caused permanent limitations on squatting, using stairs, kneeling, running, and 

jumping. Citing the Sutton court’s position on taking mitigating measures into account, the 

District Court for the Middle District of Florida indicated that “[h]ad the events in this case 

occurred prior to 2009, case law suggests that Harty might not be considered disabled under 

the ‘actual disability’ prong [of] the ADA.”277 The ADAAA had gone into effect on January 1, 

2009, however, and the district court observed that “[t]he purpose of the ADAAA was, in part, 

’[t]o reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 

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.’”278 “In effect,” 

added the court “these provisions require courts to look at a plaintiff's impairment in a 

hypothetical state where it remains untreated.”279 Expressing some disinclination toward the 

prospect of such an analysis, the court felt that it was called upon to “hypothesize whether Harty 

would be ‘substantially limited’ in the absence of any mitigating behaviors, [but, as] problematic 

as this is, it does not occur in a vacuum.”280 

The court found that “[t]here is some evidence to suggest that Harty would be substantially 

limited without his mitigating behavior,” and that the plaintiff had submitted evidence which, 

when taken in a light most favorable to him, suggested that he had substantial limitations in 

several major life activities including walking, standing, lifting, bending, and performing manual 

tasks.281 While he was able to ameliorate the effects of his condition by doing these things “in a 

different way,” the court noted that the ADAAA regulations list “learned behavioral modifications” 

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as “mitigating measures,“ and the “ADAAA does not permit such measures to be considered.“282 

Thus, the district court found that there was evidence to suggest that the plaintiff would be 

substantially limited without his mitigating behavior, including particularly that two physicians 

had indicated that he was permanently restricted from squatting, using stairs, kneeling, running 

or jumping. The court added that, while these acts might not be major life activities, “they could 

support a reasonable inference that Harty was substantially limited in walking, standing, lifting, 

bending, and performing manual tasks—which are defined as ‘major life activities’ in the 

regulations.”283 In light of Congressional directives in the ADAAA, and for the purposes of 

summary judgment, the court ruled that the plaintiff had presented sufficient evidence that he 

was actually disabled. 

In a few cases, courts have recognized the ADAAA requirement that mitigating measures are 

not to be taken into account in determining disability, but have clarified that it does not relieve 

plaintiffs from the obligation to make some showing of how major life activities would be 

impacted in the absence of mitigating measures. For example, in Lloyd v. Housing Authority, a 

case brought by a maintenance mechanic with hypertension and asthma, the court stated that 

“under Sutton, common maladies like asthma and hypertension would not likely, if ever, render 

a plaintiff disabled because readily available, inexpensive medication ameliorates the symptoms 

of these impairments so they would not substantially limit a major life activity.”284 The court 

noted, however, that ADAAA had markedly change the situation: 

[The ADAAA] rejected this approach. Now courts must inquire into whether an 

impairment substantially limits a major life activity “without regard to the ameliorative 

effects of mitigating measures.” This includes medication, assistive technology, and 

reasonable accommodations. The only exceptions are eyeglasses or contact lenses, 

the ameliorative effects of which courts must consider still. In effect, these provisions 

require courts to look at a plaintiff's impairment in a hypothetical state where it 

remains untreated.285 

The court ruled, however, that the plaintiff in such a case still bears “the burden of producing 

evidence about how his condition would affect him if left untreated. A contrary rule would require 

courts to gaze into a crystal ball, put on a white coat, and divine how a given impairment would 

have affected the plaintiff had he decided to leave it untreated.”286 In the situation before the 

court, it felt that the plaintiff had not produced evidence about whether his asthma and high 

blood pressure had substantially affected a major life activity in the relevant time period, and, 

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critically, had “failed to produce evidence tending to prove how either impairment would have 

affected him in a hypothetical, untreated state. ... Hence he has failed to produce evidence that 

would allow a reasonable jury to conclude that he suffered from a disability ...”287 The court did 

conclude that the plaintiff’s impairments had substantially limited his ability to work after he was 

transferred to another job location, but that decision appeared to be based on his conditions 

even with ameliorative treatments, as the court did not mention any evidence regarding his 

status without mitigating treatments in that part of its decision. 

In another case, a plaintiff with several mental health conditions for which he was receiving 

various forms of treatment including medication regimens, had his ADA case dismissed for 

failure to plead a plausible prima facie case.288 The court acknowledged that the ADAAA 

requires courts to examine whether an impairment substantially limits a major life activity 

“without regard to the ameliorative effects of mitigating measures,” and that mitigating measures 

include medication, assistive technology, and reasonable accommodations, with the result that 

“treatable yet chronic conditions may qualify as a disability.”289 But the court ruled that the 

plaintiff had made “no plausible allegations identifying substantial limits on the major life 

activities affected by his mental health disorders, whether treated or untreated, that would 

satisfy the ADA's definition of a disability,” and accordingly found that the Amended Complaint 

was devoid of sufficient factual matter, taken as true, to draw the reasonable inference that he 

suffered from substantial limitations to a major life activity.290 The court granted the defendants’ 

motion to dismiss plaintiff’s ADA disability discrimination claim, but granted it without prejudice 

and gave the plaintiff leave to amend his complaint.291 

Finding 12: The ADAAA statutory revision regarding consideration of mitigating 

measures is unequivocal and not particularly complicated, and the courts generally have 

had little trouble reincorporating into the legal framework for analyzing ADA claims the 

pre-Sutton principle that mitigating measures shall not be considered in determining 

disability. In a few cases, courts that have complied with the ADAAA requirement that 

mitigating measures are not to be taken into account in determining disability have 

clarified that it carries with it an obligation for plaintiffs to make some showing of the 

impact on major life activities that would result from the plaintiff’s condition in the 

absence of mitigating measures. 

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D. Transitory, Episodic, or In-Remission Impairments 

The ADAAA added the following new provision to the ADA: “An impairment that is episodic or in 

remission is a disability if it would substantially limit a major life activity when active.”292 The 

EEOC regulations simply reiterate the statutory provision verbatim.293 

EEOC explained its purpose by quoting the following statements from the legislative history of 

the ADAAA: 

This provision is intended to reject the reasoning of court decisions concluding that 

certain individuals with certain conditions—such as epilepsy or post traumatic stress 

disorder—were not protected by the ADA because their conditions were episodic or 

intermittent.”294 

This ... rule of construction thus rejects the reasoning of the courts in cases like Todd 

v. Academy Corp.[57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] where the court found 

that the plaintiff's epilepsy, which resulted in short seizures during which the plaintiff 

was unable to speak and experienced tremors, was not sufficiently limiting, at least in 

part because those seizures occurred episodically. It similarly rejects the results 

reached in cases [such as Pimental v. Dartmouth-Hitchock Clinic, 236 F. Supp. 2d 

177, 182-83 (D.N.H. 2002)] where the courts have discounted the impact of an 

impairment [such as cancer] that may be in remission as too short-lived to be 

substantially limiting. It is thus expected that individuals with impairments that are 

episodic or in remission (e.g., epilepsy, multiple sclerosis, cancer) will be able to 

establish coverage if, when active, the impairment or the manner in which it manifests 

(e.g., seizures) substantially limits a major life activity.295 

As additional examples of impairments that may be episodic, EEOC listed hypertension, 

diabetes, asthma, major depressive disorder, bipolar disorder, and schizophrenia. It also 

clarified that “[t]he fact that the periods during which an episodic impairment is active and 

substantially limits a major life activity may be brief or occur infrequently is no longer relevant to 

determining whether the impairment substantially limits a major life activity,” and added, as an 

example, “a person with post-traumatic stress disorder who experiences intermittent flashbacks 

to traumatic events is substantially limited in brain function and thinking.”296 

The provision regarding conditions that are episodic or in remission generally appears to be in 

the early stages of having its desired effect in the courts. Only a few of the cases examined 

addressed this issue under the ADAAA, but those that did pretty consistently relied on the new 

provision in allowing plaintiffs to prevail on the issue of pleading a disability when they have 

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conditions that only intermittently effect activities. To cite some examples, courts have ruled that 

conditions that are in remission or episodic can constitute disabilities under the ADA in the 

following situations: cancer that is in remission;297 fibromyalgia whose effects would “wax and 

wane”;298 vocal cord edema (brought about by mercury toxicity) which had inactive periods and 

active periods causing pain in speaking and “losing voice”;299 Hepatitis C “that has gone in and 

out of remission”;300 intermittent back pain, diagnosed as lumbar internal disc derangement, 

lumbar radiculopathy, and lumbago, from which the pain varied by the day from less to more 

severe;301 and kidney stones.302 

The ADAAA provision declaring that the “regarded as” avenue for establishing disability shall 

not apply to impairments that are “transitory and minor” is discussed in the subsection below 

dealing with that prong of the definition of disability. EEOC noticed, however, that an implication 

of that provision is that the exception is not made applicable to the other prongs of the definition. 

Accordingly, EEOC’s ADAAA regulations incorporate the following clarification: “The six-month 

‘transitory’ part of the ‘transitory and minor’ exception to “regarded as” coverage ... does not 

apply to the definition of “disability” under paragraphs (g)(1)(i) (the “actual disability” prong) or 

(g)(1)(ii) (the “record of” prong) of this section.”303 In light of the fact that the “regarded as” 

statutory exception defines “a transitory impairment” to refer to an impairment “with an actual or 

expected duration of 6 months or less,” the non-exception regulatory provision for actualdisability and record-of-disability showings includes a corresponding additional sentence which 

clarifies that “[t]he effects of an impairment lasting or expected to last fewer than six months can 

be substantially limiting within the meaning of this section.”304 

In its regulatory guidance, EEOC elaborated as follows: 

Therefore, an impairment does not have to last for more than six months in order to 

be considered substantially limiting under the first or the second prong of the 

definition of disability. For example, ... if an individual has a back impairment that 

results in a 20-pound lifting restriction that lasts for several months, he is substantially 

limited in the major life activity of lifting, and therefore covered under the first prong of 

the definition of disability.305 

To temper its recognition of short-term disabilities, the EEOC drew upon a statement in the 

ADAAA legislative history that “[t]he duration of an impairment is one factor that is relevant in 

determining whether the impairment substantially limits a major life activity. Impairments that 

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last only for a short period of time are typically not covered, although they may be covered if 

sufficiently severe.”306 

Because the EEOC’s ADAAA regulations were not in effect until May 24, 2011, to date, there 

are far too few court decisions interpreting the provision recognizing that an impairment lasting 

fewer than six months might in some circumstances constitute a disability under the ADA to 

draw any analytical conclusions. In one case, Newman v. Gagan LLC, the plaintiff had suffered 

a workplace injury, for which he was treated by a physician and received medications.307 When 

he was cleared to return to work about three months later, his physician limited him to sedentary 

activities so that he would not lift over ten pounds or operate machinery. Some five months 

later, the doctor withdrew the work limitations relating to sedentary work and not engaging in 

lifting. Even then, the court noted, “Newman was to use a cane and continue medication for 

pain.”308 The court declared that “[t]hese allegations are not exactly a model of detail and clarity. 

But they are specific and factual, and they show that for a time, Plaintiff was ‘substantially 

limited’ in lifting, which the ADA defines as a major life activity.”309 And the court made the 

following response to the question of whether the plaintiff’s temporary limitations could 

constitute a disability: 

The apparently transitory nature of Plaintiff's lifting impairment does not automatically 

negate the conclusion that he qualified as disabled under the ADAAA standard, see 

29 C.F.R. § 1630.2 (“The effects of an impairment lasting ... fewer than six months 

can be substantially limiting within the meaning of this section.”), and Defendants 

have not persuaded the Court that it should in this particular case.310 

The factual situation in the Newman case is quite similar to the example in the EEOC regulatory 

guidance – an impairment resulting in a lifting restriction that lasts for several months. According 

to the Commission, a person with such a condition “is substantially limited in the major life 

activity of lifting, and therefore covered under the first prong of the definition of disability.”311 In 

Newman, the court was similarly inclined, and it denied the defendants’ motion to dismiss the 

plaintiff’s disability discrimination claims. 

The court in Green v. DGG Properties Co., Inc., however, had quite a different perspective on 

short-term impairments.312 The plaintiff in that case was recovering from multiple surgeries, 

including hip surgery, relating to mobility problems.313 When he and his wife wanted to go to a 

resort, they chose one that advertised that it was wheelchair accessible, and featured a hotel, 

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spa, salon, and restaurants. As they were making reservations, the plaintiff notified the resort 

that he “was disabled, not ambulatory and substantially limited in mobility,” that he used a 

walker and/or a wheelchair, and was “not otherwise able to move without assistance.”314 Upon 

their arrival at the resort, however, the couple found that their hotel room, the restaurant, the 

salon, and the spa were not accessible, which led to a series of inconvenient and unpleasant 

experiences, including being escorted “to a dilapidated and odiferous freight elevator (laden with 

food stuffs) that deposited them to the basement and back of the kitchen,” from which they were 

escorted to and ate in “an area where no other guests were seated.”315 The spa and salon 

areas lacked ramp access and could only be reached via stairs. When the plaintiff confronted 

the manager on duty about the limited accessibility and the allegedly false advertisements, the 

manager “shrugged and speciously exclaimed, ‘this is an old hotel.’”316 

Green filed a disability discrimination action under Title III of the ADA, alleging that “[a]t the time 

of [his] visit to [the resort], he used a walker and a wheelchair for mobility and qualified as an 

individual with a disability as defined by the ADA.”317 The defendants argued that the plaintiff 

had failed to state a claim under the ADA “because he has alleged only that he was temporarily 

impaired.”318 The court acknowledged the applicability of the ADAAA to the case, discussed the 

Act’s general objective of broadening coverage, and quoted several of its major provisions. 

Since the Green lawsuit was not an employment case but involved claims under the public 

accommodations provisions – Title III – of the ADA, the EEOC ADAAA regulations had no 

binding effect, but the court looked to the regulations as “useful to understanding the intended 

meaning of the Amendments.”319 It quoted EEOC regulatory provisions lowering the standard 

for substantial limitation of a major life activity and addressing impairments that are episodic or 

in remission. 

Surprisingly, the court did not quote or even mention the provision in the regulations dealing 

with the non-application of the “transitory and minor” exception to proof of disability under the 

actual and record prongs. It did refer, however, to the same language presented as text in the 

regulatory guidance – “effects of an impairment lasting or expected to last fewer than six 

months can be substantially limiting within the meaning of this section.”320 The court took this 

provision in quite a different direction than the EEOC did, however. It stressed the statement in 

the ADAAA legislative history quoted in the regulatory guidance – “Impairments that last only for 

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a short period of time are typically not covered, although they may be covered if sufficiently 

severe,” and treated this language as completely overshadowing the “can be” wording in the 

regulation. The court announced flatly that “even under the ADAAA's broadened definition of 

disability, short term impairments would still not render a person disabled within the meaning of 

the statute,” and the court launched a cascade of quotations from pre-ADAAA decisions holding 

that transitional conditions cannot be disabilities: 

“[T]emporary, non-chronic impairments of short-duration, with little or no long term or 

permanent impact, are usually not disabilities”; “[f]or purposes of the ADA, short term, 

temporary restrictions are not ‘substantially limiting’ and do not render a person 

‘disabled’”; “[t]o establish a disability under the ADA, there must be some proof of 

permanency”; “temporary, non-chronic impairments of short duration, with little or no 

long-term or permanent impact, are usually not disabilities.”321 

The court took the plaintiff to task for failing to claim in his complaint that “his use of a walker or 

wheelchair was permanent or chronic, or indicate the duration or long-term impact of his 

impairment such that the Court may reasonably infer that his condition was anything but 

temporary.”322 The court even inferred from the plaintiff's “use of the qualifier ’at the time’ in 

describing his impairment while staying at [the resort] ... that his need for a wheelchair or walker 

was temporary.”323 It concluded that “[w]hile Plaintiff has pled facts showing that he was limited 

in a major life activity—walking—he has failed to demonstrate that he suffers from a 

nontemporary physical disability that is the cause of the limitation on this major life activity.”324 

Accordingly, the court ruled that the plaintiff had “failed to state a plausible claim for relief under 

the ADA,” and dismissed his ADA claim.325 

The analysis and outcome in the Green decision are harsh departures from the thrust of the 

new regulatory provision as interpreted by the EEOC in its guidance, and amount to a striking 

revival of pre-ADAAA analysis of short term impairments. Given the context of the case as a 

challenge to alleged major violations of ADA accessibility requirements, the court’s spirited 

rejection of the plaintiff’s eligibility to bring such a challenge is highly questionable from a 

disability policy point of view. The Green ruling is certainly out of step with the understanding of 

what is “minor” and, conversely, what is “severe” that underlies the EEOC’s interpretation of the 

provision as expressed in its regulatory guidance, and as put into effect in the Newman 

decision. If under the EEOC guidance, “a 20-pound lifting restriction” can represent a severe or 

not minor impairment of the activity of lifting, how can complete inability to walk, requiring the 

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use of a wheelchair or a walker not be a severe or not minor impairment of the activity of 

walking? Or is the term “severe” perhaps itself too severe? Given the paucity of relevant 

decisions on these legal interpretation questions, this is an issue that needs to be closely 

monitored in future decisions in the interest of determining the necessity for taking steps to 

avoid a resurrection of immoderately exacting duration standards for substantially limiting 

impairments. 

Finding 13: The emerging case law regarding the ADAAA provision decreeing that an 

impairment that is episodic or in remission constitutes a disability if it would 

substantially limit a major life activity when active generally appears to have begun to 

have its desired effect in the courts. Of the few cases examined that addressed this issue 

under the ADAAA, most relied on the provision in allowing plaintiffs to prevail on the 

issue of pleading a disability when they had conditions with only intermittent effect upon 

activities. 

Finding 14: The new EEOC regulatory provision recognizing that an impairment lasting 

fewer than six months might in some circumstances constitute a disability under the 

ADA did not take effect until May 24, 2011, with the result that there are insufficient court 

decisions to date about which to draw analytical conclusions. However, the decision of a 

federal district court in Green v. DGG Properties Co., Inc. raises a concern that some 

courts might blunt the effect of the provision and revive pre-ADAAA views about 

rejecting short-term impairments as disabilities. This issue should be closely monitored 

in future decisions to determine whether steps might be needed to avoid a resurrection 

of overly exacting duration standards for substantially limiting impairments. 

E. Regarded As 

The ADAAA made several changes to the application of the prong of the definition of disability 

that incorporates individuals who have been regarded as having a substantially limiting 

impairment: 

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	 It changed the breadth of coverage of the “regarded as” prong by rejecting the restrictive 

interpretation of it established by the Supreme Court in Sutton v. United Air Lines and 

reinstating the broad view of the third prong applied in School Board of Nassau County v. 

Arline. 

	 It substantially altered what an individual must show to establish that she or he has been 

regarded as having a disability, by changing the focus away from whether or not an 

impairment limits or is perceived to limit a major life activity to whether the individual has 

been subjected to an action prohibited under the Act because of an actual or perceived 

impairment. 

	 It established that an impairment cannot qualify as disability under the third prong if it is 

transitory and minor, and it provides that a “transitory impairment” is one with an actual or 

expected duration of 6 months or less. 

	 It eliminated the obligation of a covered entity under the ADA to provide a reasonable 

accommodation to an individual who meets the definition of disability solely under the 

“regarded as” prong. 

This subsection discusses each of these revisions in turn. 

1. Overall Breadth of the “Regarded As” Prong 

The ADAAA declares that one of the congressional purposes of the Act is: 

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 1973.326 

The EEOC’s regulatory guidance provides the following commentary on this objective: 

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.” In 

passing the original ADA, Congress relied extensively on the reasoning of School 

Board of Nassau County v. Arline “that the negative reactions of others are just as 

disabling as the actual impact of an impairment.” The ADAAA reiterates Congress's 

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reliance on the broad views enunciated in that decision, and Congress “believe[s] that 

courts should continue to rely on this standard.”327 

While frequently referred to and quoted, the new stated purpose relating to regarded as has not 

been the subject of much judicial commentary or interpretation. One case that did provide some 

discussion of it is Walker v. Venetian Casino Resort, LLC, which involved the ADA claim of a 

cocktail server at a casino who suffered an injury at work for which she took disability leave, 

after which she was terminated from her job.328 The plaintiff alleged that the defendants 

regarded her as having a disability. The court began its analysis of her claim by providing a 

pretty good, succinct summary of the standards applicable to the third prong of the definition of 

disability as revised by the ADAAA: 

The ADA defines “disability” in part as “being regarded as having [a physical or 

mental impairment].” An individual is “regarded as” having a disabling impairment if 

she has been subjected to unlawful discrimination because of it, “whether or not the 

impairment limits or is perceived to limit a major life activity.” A regarded-as 

impairment cannot be transitory and minor. Nor is an employer obliged to provide 

reasonable accommodations to an employee only regarded as disabled.329 

The court quoted from the regulatory guidance a statement that in the ADAAA Congress had 

repudiated “the Supreme Court's reasoning in [Sutton v. United Airlines, Inc.] with regard to 

coverage under [the regarded as prong] and reinstat[ed] the reasoning of the Supreme Court in 

School Board of Nassau County v. Arline, which set forth a broad view of the third prong of the 

definition of handicap under the Rehabilitation Act of 1973.”330 The court explained that “School 

Board of Nassau County reasoned that ‘the negative reactions of others are just as disabling as 

the actual impact of an impairment.’”331 In the case before it, the court ruled that “[u]nder the 

ADAAA, [the plaintiff] has successfully raised a genuine issue of material fact as to whether [the 

defendant casino] regarded her as disabled.332 The court ultimately granted summary judgment 

for the defendant on the plaintiff’s ADA claim based on another ADAAA revision – the plaintiff 

was seeking a reasonable accommodation but “[u]nder the ADAAA ... an employer has no duty 

to accommodate a regarded-as disability.”333 

2. Revised Focus of “Regarded As” Showing 

Prior to the ADAAA, an individual seeking to establish disability under the regarded as prong of 

the definition had to show that he or she had been regarded by the employer or other covered 

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entity as having a condition that either substantially limited a major life activity or was perceived 

to substantially limit a major life activity. This led to a convoluted and demanding analysis 

involving proof of what was in the mind of the defendant about the plaintiff’s condition, and 

whether the impairment, if the plaintiff really had it, did or would substantially limit a major life 

activity – an analysis that often had little or nothing to do with the situation and actions that were 

allegedly discriminatory. EEOC has observed that congressional intent was not to impose such 

a demanding and perplexing process for establishing that one was regarded as having a 

disability: “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).”334 

The ADAAA inserted the following provision: 

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 Act 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.335 

The EEOC regulations provide, in fewer words, that “[b]eing regarded as having such an 

impairment ... means that the individual has been subjected to an action prohibited by the ADA 

as amended because of an actual or perceived impairment that is not both “transitory and 

minor.”336 The entire focus of regarded-as analysis is thus shifted to how the individual was 

treated by the covered entity – was the individual subject to an adverse action because of her or 

his impairment or perceived impairment? 

The new provision entails a profound alteration of analysis under the regarded as prong, with 

major implications for pleading, evidence, argument, and judicial resolution. It might be 

expected that it would take the courts some time to adjust to this major transformation. 

However, perhaps because the revision replaced a thorny and complicated determination with a 

more straightforward one, the courts seem to have absorbed and applied it rather smoothly. The 

new standard has been applied to allow plaintiffs to successfully make a prima facie case that 

they have been regarded as having a disability in quite a number of court decisions.337 Of 

course, not all plaintiffs who have tried to claim that they have been regarded as having a 

disability have prevailed on that contention. The ADAAA requires that an individual seeking to 

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establish having been regarded as having an impairment must establish that he or she was 

subjected to an adverse action “because of” the actual or perceived impairment, a requirement 

the EEOC regulatory guidance refers to as “causation.”338 In a few cases, plaintiffs have failed 

to establish a link between the perception they had a condition and the adverse action they 

suffered. Thus, in Jenkins v. Medical Laboratories of Eastern Iowa, Inc., the plaintiff alleged that 

her employer perceived her as having a mental impairment due to perceived psychological 

problems (some time after she had been diagnosed with anxiety).339 She contended that she 

had been subjected to adverse employment actions by being ordered to go to dispute 

management counseling and, after she refused, being fired from her job.340 The court concluded 

that the order for the plaintiff to go to the counseling was not due to her perceived condition, as 

her fellow employees were also required to attend, and that her termination was because of her 

continued refusal to do so. The court declared that “[e]ven construing the definition of disability 

in favor of broad coverage, the court finds that Jenkins failed to set forth any facts establishing 

that MedLabs subjected Jenkins to an action prohibited by the ADA because of a perceived 

disability.”341 Accordingly, the court announced its final resolution of the case as follows: 

Because Jenkins failed to show that she was subjected to an action prohibited under 

the ADA due to a perceived disability, she cannot establish that MedLabs regarded 

her as having such an impairment. Accordingly, she cannot demonstrate a prima 

facie case of disability discrimination. For these reasons, the court shall grant 

summary judgment to MedLabs on Jenkins's disability discrimination claim.342 

In another case, Butler v. BTC Foods Inc., after returning to work from a medical leave of 

absence, the plaintiff had confided in management personnel at the company for which he 

worked that he was suffering from depression in large part due to the death of his son, and that 

he was receiving treatment including therapy and medication.343 He alleged that subsequently 

“management treated him in a distant manner and were unnecessarily hostile towards him 

when they interacted with him,” and he contended that he had ultimately been terminated from 

his job because of his perceived mental impairment.344 The court concluded, much like the court 

in the Jenkins case, that the plaintiff had failed to connect the dots between his impairment and 

the adverse employment actions he alleged, but along the way seemed to go a bit off track in 

trying to explain the difference between the concepts of a regarded as showing of disability and 

ultimate liability on the ADA claim. Thus, the court stated: 

Establishing that an individual is “regarded as having such an impairment” does not, 

by itself, establish liability. Liability is established under title I of the ADA only when an 

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individual proves that a covered entity discriminated on the basis of disability within 

the meaning of ... the ADA. The focus is on how a person has been treated because 

of a physical or mental impairment rather than on what an employer believed about 

the nature of the impairment.345 

This quotation distinguishes regarding a person as having a disability, which purportedly 

depends on what an employer believes about an impairment, with liability, which depends on 

how the individual has been treated. Actually, under the ADAAA revisions, establishing that an 

individual is regarded as having a disability does not depend upon “what an employer believed 

about the nature of the impairment,” and both perceived disability and ultimate liability depend 

upon how the covered entity treated the employee. The EEOC regulatory guidance gives a 

better description of the interplay between these elements: 

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.346 

3. Exclusion of “Transitory and Minor” Impairments 

Another significant revision made by the ADAAA to analysis of issues under the regarded as 

prong of the definition of disability is the mandate that an impairment cannot qualify as a 

disability under the third prong if it is transitory and minor. In so many words, the Act states that 

the third prong of the definition of disability “shall not apply to impairments that are transitory 

and minor.” It adds that “[a] transitory impairment is an impairment with an actual or expected 

duration of 6 months or less.”347 While this provision appears clear and simple, it has not always 

been interpreted and applied by the courts in a manner consistent with its plain language. 

Some courts have conscientiously applied the “transitory and minor” criterion. In Davis v. NYC 

Dept. of Educ., for example, the plaintiff suffered spinal, shoulder, and lower back damage in an 

automobile accident that she alleged left her disabled and in pain for three months.348 The court 

discussed the broader approach taken in the ADAAA, both as to how to establish substantial 

limitation of a major life activity and how to establish a perceived disability. As to the latter, the 

court observed that “[t]he ADAA specifies, however, that the ‘regarded as’ definition of disability 

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does not apply to impairments that are both transitory and minor,” and acknowledged the six 

months ceiling on “transitory.”349 The court also took heed of the directive in the EEOC ADAAA 

regulations that “[w]hether the impairment at issue is or would be ‘transitory and minor’ is to be 

determined objectively.”350 The court found that the plaintiff claimed she was regarded as 

disabled from the end of October 2008 until the end of January 2009, and that “during the 

period when she was on unpaid disability leave, defendants regarded her as disabled.”351 

Applying the standards applicable in considering defendants’ motion to dismiss, the court 

reached the following conclusion: 

Although plaintiff's three-month period of disability appears to be “transitory,” it is not 

apparent from the face of the Complaint that plaintiff's impairment was “minor.” 

Accordingly, because the Complaint must only give defendants fair notice of plaintiff's 

claims, the court finds that plaintiff has sufficiently alleged that she was disabled 

within the meaning of the ADA.352 

In Saley v. Caney Fork, LLC, the plaintiff had produced a medical record demonstrating that he 

had been diagnosed with “iron overload” in the blood (hemochromatosis), and he alleged that 

he had both an actual and a perceived disability under the ADA.353 When the defendant argued 

that the plaintiff’s condition could not be a disability because (according to the defendant) “it 

causes no symptoms,” the court responded that that argument “is inconsistent with the logic of 

the ‘regarded as’ prong of the ADAAA,” because, “[u]nder current law, whether an individual's 

impairment ‘substantially limits’ a major life activity is ‘not relevant’ to coverage under the 

‘regarded as’ prong,” so that “[the plaintiff] may recover under the “regarded as” prong in the 

absence of visible symptoms, or any symptoms at all.”354 The defendant also contended that the 

plaintiff’s condition did not qualify as a disability because “his perceived impairment is ‘transitory 

and minor.’”355 The court noted that a transitory impairment is “defined as lasting or expected to 

last six months or less,” while a minor impairment includes “common ailments like the cold or 

flu.”356 Based on the EEOC ADAAA regulations, the court replied to the defendant’s 

characterizing the plaintiff’s condition as transitory and minor as follows: 

The relevant inquiry is whether the actual or perceived impairment is objectively 

“transitory and minor,” not whether the employer subjectively believed the impairment 

to be 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.”357 

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And the court quoted the following provision from the regulations: 

[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.358 

The court had noted that the plaintiff’s medical record established that plaintiff’s condition was 

life-threatening,359 and found it was 

distinguishable from a minor ailment like the cold or flu. Hemochromatosis is an acute 

disease requiring regular phlebotomy treatments, for which Plaintiff has had to seek 

the care of hematologists. Additionally, Plaintiff has produced evidence showing that 

his impairment is not transitory. To combat hemochromatosis—an incurable, lifelong, 

and permanent ailment—Plaintiff has received phlebotomy treatments for more than 

two years[,] far longer than the six-month period required to be deemed not transitory. 

Moreover, even if Plaintiff's actual impairment were transitory and minor, he has 

produced sufficient evidence showing a genuine dispute of material fact as to whether 

his perceived impairment was transitory and minor.360 

Accordingly, the court concluded that, “drawing all reasonable inferences in favor of the 

nonmoving party, the Court finds that Plaintiff has shown a genuine dispute of material fact from 

which a reasonable juror could conclude that his impairment is not transitory and minor.”361 

In these two examples, the courts looked at both issues – whether the impairment was 

transitory and whether it was minor – in conformity with the clear statutory wording. 

Unfortunately, some other courts have not been so faithful to the plain meaning of the ADAAA. 

A line of cases has developed in which the courts have looked only to the issue of duration of 

the impairment in question. 

In one case, the plaintiff had suffered a work-related leg injury and was placed on medical 

leave; he alleged that he was terminated from his job when he exhausted his Family and 

Medical Leave Act leave time.362 In considering his claim that his employer had regarded him as 

having a disability, the court declared that “[t]he ADA states that the regarded-as-impaired 

provision ‘shall not apply to impairments that are transitory and minor,’ defining those 

impairments as having an actual or expected duration of 6 months or less.”363 To be accurate, 

the definition the court mentioned is of the term “transitory,” not “transitory and minor.” The court 

then continued to focus only on the duration, not the severity, of the condition, declaring that the 

plaintiff “does not directly allege the necessary durational threshold, and his related allegations 

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do not permit a reasonable inference thereof.”364 The court stated that the plaintiff’s statements 

that he “was experiencing significant recovery within one to two months of the ... injury, with 

even greater capability ‘well before’ the end of his three-month, FMLA leave period” led it to 

conclude that it could not reasonably infer “that the impairment had an actual or expected 

duration of more than six months,” and as a result, the court ruled that the plaintiff had “not 

alleged a disability which satisfies the regarded-as-impaired prong.”365 At no time did the court 

consider whether the level of limitation and severity associated with the plaintiff’s condition rise 

to a level above “minor.” 

In a second case, a plaintiff notified his employer that he had suffered a significant injury to his 

leg and requested medical leave; the employer subsequently terminated him from his job.366 

The court observed that “where a plaintiff is merely regarded as disabled rather than suffering 

from an actual disability, the perceived impairment must not be transitory and minor.”367 Making 

the same mistake as in the case described above, the court treated “transitory and minor” as if it 

was synonymous with “transitory”: “Transitory and minor impairments are defined as those with 

an expected duration of six months or less.”368 The plaintiff argued that his injury was not minor 

because it substantially limited a major life activity – he mentioned walking and working – but 

the court persisted in focusing on duration.369 The court agreed with the defendant “that a 

plaintiff's potential inability to work for a short period of time while recovering from an injury or 

surgery does not constitute a ’disability’ under the ADA's ‘regarded as’ analysis,” and that six 

months was the applicable minimum.370 Somewhat surprisingly, however, the court gave the 

plaintiff a pass because his complaint was not specific; the court declared that “[a]lthough 

Plaintiff does not allege that his injury would last six or more months in duration, it is not 

apparent from the pleadings that it did not last six or more months.”371 Accordingly, the court 

“[d]rawing all inferences favorably to the Plaintiff,” refused to dismiss the plaintiff’s ADA claim 

based on the issue of whether the injury was transitory and minor.372

 A third case involved a plaintiff who had taken six weeks of medical leave after knee surgery, 

had returned to work on a part-time basis, and was scheduled for another surgery on the knee 

when she was laid off from her job.373 When the court considered her claim that she had been 

regarded as having a disability, it took note of the “transitory and minor” exception under the 

regarded as prong. Although the court acknowledged that the plaintiff’s orthopedic surgeon had 

83
 
made repeated notations in her medical chart that she was “totally disabled,”374 it never focused 

on the possibility that the plaintiff’s condition was more than minor. Instead it considered only 

the issue of her condition being “transitory,” leading to the following conclusion: 

Based on Plaintiff's history of physical aliments and surgeries requiring leaves from 

work of between six (6) and twelve (12) weeks, which includes her first knee surgery, 

the evidence indicates, when objectively viewed at the time of the employment 

decision in question, that Plaintiff has presented evidence indicating only that she was 

regarded as having an impairment that was transitory and minor in nature. 

Accordingly, Plaintiff has not satisfied the second element of her prima facie case.375 

In still another case, also involving a plaintiff with a painful knee problem and upcoming knee 

surgery, who alleged that she was terminated the day before the surgery was to occur, the court 

reached the same result as the two cases previously discussed – that the plaintiff had not 

adequately shown that she had been regarded as having a disability – but did not undertake 

much analysis even of the transitory issue.376 It did mention the ADAAA and the “transitory and 

minor” exception under the third prong of the disability definition, and acknowledged the 

plaintiff’s allegations that her knee pain limited her ability to perform daily tasks, that she was 

scheduled for surgery to remedy the pain, and that she would be even more limited during the 

recovery period after the surgery.377 Instead of accepting such indications of the seriousness of 

he plaintiff’s condition, the court relied upon its generalized view, bolstered by two prior 

decisions it cited, one of which was from 1998, that “[s]everal courts have concluded that knee 

surgeries such as the Plaintiff's are insufficient to establish a disability under the ADA.”378 It 

ruled that the plaintiff “has not presented sufficient evidence that she is disabled under the 

ADA.”379 

If such an approach proliferates, it would raise the troubling possibility of more courts 

undercutting the precisely worded exception the ADAAA created along with its logical corollary 

that conditions that are either transitory or minor, but not both, can qualify a person for 

“regarded as” coverage. This issue should be monitored closely to see if it will be an 

increasingly serious problem or simply an early “growing pain” of a new provision, which with 

the passage of time will become more widely understood, accepted, and applied. 

4. No Reasonable Accommodation Requirement under the Regarded 

As Prong 

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The ADAAA eliminated the obligation of entities covered under the ADA to provide reasonable 

accommodations or reasonable modifications to people who meet the definition of disability only 

under the “regarded as” prong. The Act provides that 

a covered entity under title I, a public entity under title II, and any person who owns, 

leases (or leases to), or operates a place of public accommodation under title III, 

need not provide a reasonable accommodation or a reasonable modification to 

policies, practices, or procedures to an individual who meets the definition of disability 

... solely under subparagraph (C) [the regarded as prong].380 

The elimination of the reasonable accommodation/reasonable modifications obligation for 

individuals who seek protection on a perceived disability basis is straightforward – the obligation 

simply no longer applies. Presumably because the change is so clear-cut the court decisions 

applying it generally do so in an uncomplicated manner. Two themes characterize judicial 

discussions of the provision. The first is that the courts describe and quote the statutory 

elimination of the accommodation/modification obligation.381 The second theme, articulated in 

some of the cases, is that, as a logical consequence of the first, because reasonable 

accommodation is not available to a plaintiff alleging disability exclusively under the regarded-as 

prong, if such a plaintiff cannot perform essential job duties without accommodation, she or he 

will be deemed not qualified for the job.382 

The EEOC regulations suggest that the inapplicability of reasonable accommodation and 

reasonable modification requirements to plaintiffs who make use of the regarded as prong to 

establish a disability may have significant strategic and pleading implications. They provide: 

Where an individual is not challenging a covered entity's failure to make reasonable 

accommodations and does not require a reasonable accommodation, it is generally 

unnecessary to proceed under the “actual disability” or “record of” prongs, which 

require a showing of an impairment that substantially limits a major life activity or a 

record of such an impairment. In these cases, the evaluation of coverage can be 

made solely under the “regarded as” prong of the definition of disability, which does 

not require a showing of an impairment that substantially limits a major life activity or 

a record of such an impairment. An individual may choose, however, to proceed 

under the “actual disability” and/or “record of” prong regardless of whether the 

individual is challenging a covered entity's failure to make reasonable 

accommodations or requires a reasonable accommodation.383 

The EEOC regulatory guidance elaborated as follows: 

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[I]n many cases it may be unnecessary for an individual to resort to coverage under 

the “actual disability” or “record of” prongs. Where the need for a reasonable 

accommodation is not at issue—for example, where there is no question that the 

individual is “qualified” without a reasonable accommodation and is not seeking or 

has not sought a reasonable accommodation—it would not be necessary to 

determine whether the individual is substantially limited in a major life activity (under 

the actual disability prong) or has a record of a substantially limiting impairment 

(under the record of prong). Such claims could be evaluated solely under the 

“regarded as” prong of the definition. In fact, Congress expected the first and second 

prongs of the definition of disability “to be used only by people who are affirmatively 

seeking reasonable accommodations ...” and that “[a]ny individual who has been 

discriminated against because of an impairment—short of being granted a reasonable 

accommodation ... —should be bringing a claim under the third prong of the definition 

which will require no showing with regard to the severity of his or her impairment.”384 

It is not clear whether plaintiffs and their attorneys have yet appreciated such considerations 

and incorporated them into their litigation strategies. Certainly they have not done so in cases 

in which plaintiffs have proceeded under the regarded as prong, only to have the court decide 

that they were not entitled to workplace accommodations that they needed in order to be 

qualified.385 

Finding 15: The ADAAA’s articulation of a general broadening of the third prong of the 

definition of disability, including by rejecting the Supreme Court’s reasoning in Sutton v. 

United Air Lines, Inc., regarding it, and reinstating in its place the Court’s reasoning in 

School Board of Nassau County v. Arline, has not been the subject of much judicial 

commentary or elaboration, but the court decisions have referred to, quoted, and 

seemingly accepted that thrust. 

Finding 16: The ADAAA revision that changes the focus of being regarded as having an 

impairment to whether the individual has been subjected to an action prohibited by the 

ADA because of an actual or perceived impairment represents a profound alteration of 

analysis under the regarded as prong, with major implications for pleading, evidence, 

argument, and judicial resolution. Perhaps because the revision replaced a thorny and 

complicated determination with a more straightforward one, the courts seem to have 

absorbed and applied it rather smoothly. The new standard has been applied to allow 

plaintiffs to successfully make a prima facie case that they have been regarded as having 

a disability in quite a number of court decisions. 

86
 
Finding 17: The exclusion of “transitory and minor” impairments in analysis of 

allegations of disability under the regarded as prong of the definition of disability is an 

important ADAAA mandate. While the provision of the Act making this change is 

relatively clear and simple, the courts have not always interpreted and applied it in a 

manner consistent with its plain language. A worrisome line of cases has developed in 

which courts have focused only on the issue of duration of the impairment in question, 

and have ignored the “and minor” words of the statute. The continuing development of 

case law in this area should be monitored closely to see how big of a problem this may 

portend. 

Finding 18: The ADAAA’s elimination of the obligation of entities covered under the ADA 

to provide reasonable accommodations or reasonable modifications to people who meet 

the definition of disability only under the “regarded as” prong is a major change. The 

statutory change is straightforward and clear-cut, and, so far, the court decisions 

interpreting and applying it generally do so in an uncomplicated manner. In addition to 

describing and quoting the statutory elimination of the accommodation/modification 

obligation, some courts have noted that, because reasonable accommodation is not 

available to a plaintiff alleging disability exclusively under the regarded-as prong, if such 

a plaintiff cannot perform essential job duties without accommodation, she or he will be 

deemed not qualified for the job. As time goes by, such considerations can be expected 

to have a growing impact on legal pleading and litigation strategies. 

VI. ASSESSMENT OF OVERALL OUTCOMES AND SPECIFIC CONCERNS 

A. Overall Case Results 

Prior sections of this report examine particular issues, and present legal analysis primarily 

based on the content of numerous individual court decisions. Some very significant and 

informative insights into post-ADAAA case law to date can be gleaned, however, by stepping 

back from the “trees” of the individual court rulings to perceive the overall “forest” or the big 

picture of how individuals who have filed ADA lawsuits are doing in the courts. Such a 

perspective reflects an aggregation of the results of all the revisions that the ADAAA has made 

to ADA law, in pursuit of an answer to the big question whether they are working or not. Given 

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the relatively early state of judicial application of the amendments, and the very small number of 

such cases that have made it to decision in the appellate courts interpreting and applying the 

ADAAA changes, no major, long-term conclusions can be drawn at this time. But a sufficient 

number of decisions have been issued to date to make it possible to gauge which way the wind 

is blowing and to give a preliminary, but enlightening, progress report on the efficacy of the 

Amendments Act. 

As noted above, in about four out of five of the federal district court cases analyzed 

methodically, the court found that the ADAAA was in effect at the time the alleged discrimination 

occurred, quite a contrast to the mere 10 percent of the circuit court decisions finding the Act in 

effect. Of the district court cases in which the ADAAA was in effect, many of them did not give 

the court the occasion to apply substantive legal principles of the ADAAA for a variety of 

reasons, usually relating to the procedural posture of the case, as where the proceeding before 

the court focused on auxiliary issues, such as class certification or scope of discovery; or the 

court saw fit to decide the matter on non-substantive grounds, such as lack of standing, failure 

to exhaust remedies, or filing the lawsuit after the statute of limitations had run. Thus, in about 

one-fifth of the decisions in which the court acknowledged that the ADAAA was in effect, the 

court did not reach the substantive ADA nondiscrimination issues. 

In the remaining cases – in which the courts did apply substantive law under the ADAAA – the 

results were quite positive from the point of view of those filing the lawsuits claiming they had 

been discriminated against on the basis of disability. In such cases, the plaintiff prevailed on the 

showing of disability in more than three out of four decisions. What is meant by “prevailing” in 

this context depends upon the procedural posture of the case at the time of the decision. In 

many cases, it involved the court rejecting a motion to dismiss or a motion for summary 

judgment on the issue of the plaintiff having properly pled or made a prima facie case that he or 

she had a disability under the ADA. This three-out-of-four figure, combined with the six-of-seven 

plaintiffs who prevailed at the circuit court level, is impressive. Moreover, in some of the cases 

in which plaintiffs lost on the issue of establishing disability, the courts dismissed their claims 

“without prejudice” or with express permission to amend their complaints (or to “replead”) to 

address deficiencies in the allegations they had proffered. There is no real comparison figure for 

saying what a good success rate on the disability determination should be, but there can be no 

88
 
doubt that the present rate of prevailing is dramatically better than before the ADAAA was 

enacted, when studies were showing that more than 90 percent (some as high as 97 percent) of 

plaintiffs in ADA employment cases were having their cases thrown out of court on motions to 

dismiss or summary judgment – abysmal rates of dismissals that helped to prompt calls for 

amending the ADA that produced the ADAAA. 

The foregoing does not mean, however, that such prevailing plaintiffs were necessarily going to 

win their lawsuits, or even succeed in the proceeding in which they prevailed on the pleading or 

proof of disability issue. Quite a few plaintiffs who prevailed on the showing of disability fell short 

on proof that they are qualified or on proving that they were subjected to unlawful discriminating 

actions. In the decisions in which courts applied the ADAAA, almost six out of ten did not prevail 

in the proceeding before the court. Of those who prevailed on disability, more than half (a rate of 

about 55 to 45) prevailed in the proceeding, in that they were either victorious on the merits or 

were permitted to continue to pursue their lawsuits. 

Finding 19: Assessment of overall outcomes in court decisions interpreting and 

applying the ADAAA shows that the Act has had a dramatic impact in improving the 

success rates of plaintiffs in establishing disability. In cases in which district courts 

applied provisions of the Act, plaintiffs prevailed on the showing of disability in more 

than three out of four decisions – a huge improvement over pre-ADAAA decisions. This 

very positive development is tempered somewhat by the recognition that many plaintiffs 

who prevailed on establishing a disability still lost their cases on other grounds. 

B. Focus and Extent of Analysis of Disability 

An important question is whether the courts have fulfilled congressional intent that “the question 

of whether an individual’s impairment is a disability under the ADA should not demand 

extensive analysis.”386 A related question is whether under the ADAAA the focus of court 

inquiries in ADA cases, particularly those addressing employment discrimination, has shifted to 

determining whether disability discrimination occurred (“the primary object of attention in cases 

brought under the ADA should be whether entities covered under the ADA have complied with 

their obligations”387), as opposed to focusing primarily on determining whether an individual has 

a disability. In a section of its ADAAA regulatory guidance discussing provisions relating to 

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“Discrimination Prohibited,” EEOC touched on both of these issues: “We hope this will be an 

important signal to both lawyers and courts to spend less time and energy on the minutia of an 

individual's impairment, and more time and energy on the merits of the case—including whether 

discrimination occurred because of the disability ....”388 

In regard to avoiding extensive analysis, it is difficult to generalize about how well the courts 

have complied with the congressional intent and EEOC’s directions. Some courts have devoted 

minimal analysis to the issue of determining whether a plaintiff has a disability under the ADA. 

In one case in which the plaintiff had provided evidence that she had multiple sclerosis, the 

court’s analysis of whether her condition constituted a disability consisted, in its entirety, of the 

following: “The court assumes, without deciding, that [the plaintiff] can establish that she was 

disabled under the new, more lenient guidelines of the ADAAA and moves directly to the heart 

of the issue—whether [the plaintiff] established that she was discriminated against because of 

her disability..”389 The court proceeded to examine the plaintiff’s claims that she had suffered 

discrimination and determined that “there is simply no evidence before the court that [the 

defendant] discriminated against [the plaintiff] because of her disability. As such, summary 

judgment is due to be granted in favor of [the defendant] on [the plaintiff's] claims under the 

ADA.”390 A second court analyzed the plaintiff’s allegations of disability as follows: 

[The plaintiff] is disabled under the ADA. The parties agree that [she] cannot sit or 

stand for extended periods of time, and that she also cannot lift heavy objects or bend 

at the waist. Construing the ADA's definition broadly, the court finds that [the plaintiff] 

has produced sufficient evidence to prove that she is disabled within the meaning of 

the ADA.391 

Another court went so far as to consider no analysis even better than limited analysis and 

simply jumped over the issue of demonstrating disability: 

The ADAAA states 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....” Therefore, the “question of whether an 

individual's impairment is a disability under the ADA should not demand extensive 

analysis.” Id. In keeping with the clear directive of the ADAAA and recognizing that 

Plaintiff's claims fail for various other reasons, the Court will not engage in an analysis 

of Plaintiff's alleged disability.

392 

Other courts have expended paragraphs or pages in analyzing whether a plaintiff has 

adequately pled and proven the existence of a disability that meets the standards established in 

90
 
the ADAAA. Quite naturally, when courts are considering whether a plaintiff’s condition 

constitutes a disability under the ADA, they tend to cite and discuss previous decisions 

addressing the same or similar conditions. And, given the novelty of many of the ADAAA 

revisions, courts may be prone to over-discuss and over-analyze them. 

As to whether courts have shifted their focus, particularly in employment cases, away from 

determining whether an individual has a disability, and more toward determining whether 

disability discrimination occurred, this has certainly occurred to a considerable extent, 

particularly with conditions that affect major bodily functions or are included in EEOC’s 

“predictable assessments of disability” examples list. The consideration of conditions without 

taking into account mitigating measures has also simplified and abbreviated the process for 

establishing disability for conditions to which it applies. The very fact that more plaintiffs are 

prevailing on the proof of disability issue means that courts are required to go on to grapple with 

the substance of their discrimination claims. 

And yet, the careful and somewhat tentative application by courts of the ADAAA changes as 

they begin to become familiar with them has led some courts to put considerable effort into 

interpreting and parsing the standards; and some issues, such as the “transitory and minor” 

exception to inclusion of regarded-as disabilities, have occasioned extensive discussion in the 

decisions. At times, this has continued to lead to ADAAA-frowned-upon instances of courts 

spending considerable “time and energy on the minutia of an individual's impairment.” 

Finding 20: The courts have made progress in complying with ADAAA exhortations that 

determinations whether an individual’s impairment is a disability under the ADA “should 

not demand extensive analysis,” although the progress is uneven and some decisions 

continue to reflect considerable analytical parsing. As to the related question of whether 

courts have shifted their analytical focus, particularly in employment discrimination 

cases, away from determining whether an individual has a disability, to determining 

whether disability discrimination occurred, the courts’ decisions evidence quite a bit of 

movement in that direction, but some courts still spend considerable time and energy on 

the minutia of parsing the medical and other details and circumstances of an individual's 

impairment. 

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C. Individualized Assessment 

Since the enactment of the ADA, the elements of the term “disability” have been defined “with 

respect to an individual.”393 The EEOC regulations under the ADAAA have emphasized the 

individualization aspect of determining disability by mandating that “[t]he determination of 

whether an impairment substantially limits a major life activity requires an individualized 

assessment.”394 The question arises whether the courts are in fact making the requisite 

individualized assessment to determine whether an impairment substantially limits a major life 

activity. From the cases analyzed for this report, the answer appears to be a resounding “yes.” 

The courts routinely seek to assess whether each particular plaintiff has alleged sufficient facts 

and produced sufficient evidence to establish that she or he meets the criteria under the statute. 

From time to time, a court may make a determination about a plaintiff’s condition based upon 

the label or what other courts have said about it, but such instances are far from common. Of 

course, when a court is struggling with how to apply the legal criteria to the condition and 

circumstances before it, it is only to be expected that the court may seek guidance, support, and 

reassurance from the rulings of other courts. 

It is also true that some revisions made by and pursuant to the ADAAA have actually provided 

some impetus toward less-individualized determinations, while making it easier for plaintiffs to 

establish that certain conditions qualify as disabilities under the ADA. The statutory addition of 

the category of major bodily functions to the list of examples of major life activities and EEOC’s 

designation of examples of conditions that “virtually always” constitute disabilities definitely push 

in the direction of more categorically determined disabilities. 

Finding 21: In making determinations of disability in ADA actions, the courts have pretty 

consistently based them on individualized assessments of substantial limitation of major 

life activities. Some ADAAA revisions have reduced the need for individualization to a 

degree by making it easier for some types of impairments to be recognized as 

disabilities. 

D. Deficient Pleadings and Flawed Litigation 

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“Bad facts make bad law” is an old law school adage, but it might equally well be said that “bad 

pleadings make bad law,” or at least they lead to bad outcomes for litigants. A conspicuous 

aspect of the court decisions under the ADAAA is that some plaintiffs lost on their claims of 

having a disability and on other elements of their lawsuits because they simply did not make a 

minimally adequate case. Not uncommonly, courts’ opinions attribute the dismissal of claims to 

the failure of the pleadings and other submitted documents to adequately assert or support the 

necessary elements of a cause of action. Thus, in one case before the Seventh Circuit, the 

court complained that “[the plaintiff] has not produced evidence that his aneurism limits a major 

life activity. In his motion before the district court, [the plaintiff] merely cited the Wikipedia article 

on aneurisms and concluded that the ‘ability to function and live is certainly a major life 

function.’”395 Another court made the following finding: 

Plaintiff's allegations fail to even suggest that her work-related stress condition limited 

or impaired—substantially or otherwise—her ability to engage in any major life 

activity. Plaintiff's bare and conclusory allegation that her “work related stress 

condition renders her disabled” is insufficient to meet the pleading requirements 

discussed above. Accordingly, even under the ADAAA's substantially-broadened 

definition of disability, the Court finds that Plaintiff has failed to allege facts tending to 

show that she was or is disabled ....396 

In a case litigated under the “regarded as” prong of the definition of disability, a district court 

found as follows: 

Plaintiff merely relies upon her subjective belief and conclusory statements to argue 

that she was “regarded as” disabled. Plaintiff states that her supervisor regarded her 

as disabled because her supervisor knew that she had facet arthrosis. She then 

states that “they didn't want to accommodate me after I went through my physical 

therapy.” She acknowledges, however, that she did not ask for any accommodations. 

... Even in light of the ADA amendments, Plaintiff fails to create a genuine issue of 

fact on whether she was “regarded as” disabled. Subjective belief and conclusory 

allegations of discrimination are insufficient to defeat summary judgment.397 

A similar deficiency in pleading disability caused another court to conclude as follows: 

Plaintiff has only alleged that she suffered from the condition of transverse myelitis 

and has pled no other facts indicating how this condition substantially limited one or 

more major life activities. Consequently, Plaintiff has not even alleged a “formulaic 

recitation of the elements of a cause of action” [much]less the required factual 

enhancement to render her claim plausible under Rule 12(b)(6). Courts have held that 

“dismissal is appropriate where a plaintiff fails to allege how an impairment limits a 

major life activity.”398 

93
 
Compassionately, the court opted to dismiss the plaintiff’s claim “without prejudice,” and granted 

her leave to amend her complaint, if she can, to allege how her transverse myelitis substantially 

limited a major life activity and to clarify whether she is asserting a claim for disability 

discrimination arising from a failure to make a reasonable accommodation, a claim for 

discrimination arising from an adverse employment action taken because of her disability or 

both.399 

In one case, the plaintiff took vagueness about his condition to an even higher level. The court 

stated that “[the plaintiff’s] complaint alleged only that ‘he suffers from a recognized disability of 

which [the defendant] was well aware[;] however [the plaintiff] fails to state what this disability is 

and how [the defendant] knew about it.”400 

Sometimes poorly reasoned and poorly written legal briefs undercut plaintiffs’ ADA claims. In a 

recent, extreme case, the Eighth Circuit noted that “[a]fter spending ‘many hours’ reviewing [the 

plaintiff’s] bewildering brief in opposition to summary judgment, the district court granted [the 

defendants'] motion for summary judgment on all of [the plaintiff’s] claims.”401 Unfortunately the 

briefing did not improve on appeal, and the appellate court observed: 

Because [the plaintiff’s] brief, filled as it is with unsupported legal and factual 

assertions, sometimes borders on incomprehensible, the precise issues she is raising 

in this appeal are unclear. Like the district court, we struggle to decipher seemingly 

inconsistent claims, and we have interpreted [the plaintiff's] counsel's pages of 

arguments as favorably as the record allows.402 

In a footnote, the court stated that “[w]e echo the district court's notice to [the plaintiff’s] counsel 

that we are ‘not inclined to undertake this effort again in his cases.’“403 The footnote went on to 

say that “[n]ot only is the opening appellate brief submitted by [the plaintiff’s] counsel littered 

with irrelevant sentences, careless prose, and rambling multi-page paragraphs, but [the 

plaintiff’s] counsel did not submit a reply brief—a decision which, even if tactical, 

underestimated the persuasiveness of the appellees' arguments.”404 If that was not enough, the 

court reported that the plaintiff’s “brief contains no citation to the relevant statute,” so the court 

was compelled to ”infer she bases her disability-discrimination claim on a purported violation of 

the ADA's prohibition of employment discrimination ‘against a qualified individual on the basis of 

disability.’”405 Not surprisingly, the Eighth Circuit affirmed summary judgment in favor of the 

defendants on the plaintiff’s ADA claim. 

94
 
 

The decisions discussed here are only a sampling of cases in which plaintiffs’ failure to prevail 

appears to have stemmed as much or more from the poor quality of the legal papers submitted 

on their behalf as from intrinsic invalidity of their ADA claims. In assimilating the findings in this 

report regarding improvement in how plaintiffs are doing under the ADAAA, it should be borne in 

mind that the results could be even more favorable if the quality of the pleadings, briefs, 

arguments, and analysis could be upgraded. 

Finding 22: In more than a few cases in which individuals who claimed to have been 

subject to discrimination on the basis of disability have not succeeded in establishing 

that they had a legally cognizable disability, or otherwise did not prevail in their legal 

actions, their chances for a favorable outcome were squandered by substandard, 

sometimes dismal, legal pleadings and briefs on their behalf. The likelihood of such 

plaintiffs having a fair “day in court” could be significantly enhanced by the development 

and proliferation of high quality continuing education and training programs for 

attorneys and other advocates for people with disabilities. 

E. Potentially Emergent Ancillary Issues 

This report primarily focuses on providing a preliminary assessment of the extent to which the 

ADAAA is fulfilling its promise – whether it is addressing the problems and having the positive 

impact it was intended to. In addition, however, analysis of the court decisions suggests some 

possible issues or potential problems that go beyond the purview, or even a bit against the 

grain, of the ADAAA. This subsection points up a few such matters that merit ongoing 

observation and monitoring to see if they do, in fact, become serious enough to warrant 

remedial action. 

One such issue that deserves watching is the factor of duration of an impairment in the 

determination that it does or does not constitute a disability under the ADA. In the Supreme 

Court’s decision in Toyota Motor Manufacturing , Kentucky, Inc. v. Williams, the Court had 

endorsed a requirement that an “impairment’s impact must also be permanent or long term” to 

constitute a disability. NCD’s Righting the ADA report condemned the “permanent or long term” 

duration requirement, and included in the ADA Restoration Act proposal presented in the report 

a provision stating that “[a]n impairment that otherwise substantially limits a major life activity 

95
 
meets the definition of a disability ... even if the impairment is temporary or of limited 

duration.”406 When the ADAAA included two congressional findings and two statements of 

congressional purpose in which Congress rejected the standards and the narrowing of the 

scope of protection that the Williams decision had adopted, there was thought that the duration 

limitation was severely weakened, if not abolished. Congress furthered this line of thought in a 

fashion when it established an exception under the “regarded as” prong for impairments that are 

“transitory and minor,” with the implication that no such exception had been recognized under 

the other two prongs. EEOC, to its credit, has endorsed this interpretation of the exception and 

its limitation to the third prong, and has refused to extend the six-month criterion for “transitory” 

to the other two prongs. It has also refused to specify any time limit of minimum duration that an 

impairment must last for it to constitute a disability. These are positive developments. 

However, there is the line of cases that have applied the “transitory and minor” exception 

without actually taking the “and minor” part into account, as discussed in subsection V.D above. 

Courts are sometimes overly eager to screen out what, based upon pre-ADAAA law, they had 

learned to consider impairments of too short a duration to be substantially limiting. Accordingly, 

there is a danger that, in addition to the misinterpretation of “transitory and minor” for regarded 

as complainants, such sloppy analysis may bleed over into the first and second prongs and fuel 

the impulse to exclude temporary or transitory conditions, with an associated danger that courts 

will begin to apply the six month standard as the minimum duration period for disability 

generally. Hopefully these problems will not become serious or widespread, but the possibility 

that they will should be monitored to ensure early detection and the application of appropriate 

corrective measures if necessary. 

One of the major compromises that occurred during negotiations over the legislation that 

became the ADAAA was the incorporation of the provision that specifically states that covered 

entities do not have to provide a reasonable accommodation or reasonable modification for an 

individual who meets the definition of disability only under the “regarded as” prong. In Righting 

the ADA, NCD argued for reasonable accommodation for “regarded as” individuals and 

suggested statutory language requiring it.407 As enacted, the ADAAA did not follow that 

approach and specifically provided that accommodation/modification is not required in such 

situations. The congressional expectation was apparently that the broadened, less onerous 

96
 
“regarded as” standard would be used for most ADA cases except those that involved claims for 

reasonable accommodations/modifications, and that where accommodation/modification was at 

issue, the first and second prongs would fit the bill. 

It remains to be seen, however, whether any significant negative repercussions will flow from 

denying accommodation/modification rights to people who show that they were just perceived 

as having a disability. Certainly as the ADAAA began to take effect, some litigants were 

surprised to learn that the regarded as basis upon which they had successfully established 

disability to a court’s satisfaction would not entitle them to a reasonable accommodation. There 

may be many reasons why people cannot or do not want to use the first two prongs even 

though they have an impairment and really need reasonable accommodations or reasonable 

modifications. These include privacy concerns about disclosing confidential medical and mental 

health records, evidentiary concerns that it may be difficult to prove substantial limitation of a 

major life activity under the actual and record of disability prongs, and indignation about having 

to spend money and time to amass documentation and testimony to prove how seriously 

impaired you are just to get a reasonable adjustment to enable you to participate or do a job. 

Ongoing attention should be paid to court decisions relating to the disallowance of 

accommodations and modifications under the third prong in order to assess just how much of a 

problem it is going to pose. 

In one of its least insightful moments, the Supreme Court, in Sutton v. United Air Lines, Inc. and 

associated cases, questioned whether working should be considered a major life activity, and 

expressed doubts about the validity and authoritativeness of EEOC’s regulations interpreting 

the definition of disability.408 The ADAAA explicitly rejected the Court’s ruling on these matters 

by including “working” among a statutory list of major life activities and directly authorizing 

EEOC, the Department of Justice, and the Secretary of Transportation to issue regulations 

implementing the definition of disability as amended by the ADAAA.409 After having been 

vindicated in both its regulatory authority and its inclusion of working as a major life activity, 

EEOC has opted to deemphasize the major life activity of working by removing a discussion of it 

from its regulations, explaining that no other life activity had received comparable special 

attention in the regulations, and that, in light of the broadening of the definition of disability 

under the ADAAA, the major life activity “will be used in only very targeted situations.”410 EEOC 

97
 
expressed the expectation that in most instances an individual with a disability would establish 

coverage by demonstrating substantial limitation of some other major life activity, since 

“impairments that substantially limit a person's ability to work usually substantially limit one or 

more other major life activities.”411 

Related to the invoking of the life activity of working to establish disability is the requirement of 

demonstrating that the individual’s impairment substantially limits the ability to perform “a class 

of jobs or broad range of jobs.” This requirement, and its endorsement by the Supreme Court in 

its decision in Sutton, were decried by NCD in Righting the ADA.412 With the congressional 

repudiation of the Sutton decision in the ADAAA, the class-of-jobs/broad-range-of-jobs standard 

might have been discarded. Instead, EEOC chose to relax the concept and confine its usage as 

described in the regulatory guidance: 

In the rare cases where an individual has a need to demonstrate that an impairment 

substantially limits him or her in working, the individual can do so by showing that the 

impairment substantially limits his or her ability to perform a class of jobs or broad 

range of jobs in various classes as compared to most people having comparable 

training, skills, and abilities. In keeping with the findings and purposes of the 

Amendments Act, the determination of coverage under the law should not require 

extensive and elaborate assessment, and the EEOC and the courts are to apply a 

lower standard in determining when an impairment substantially limits a major life 

activity, including the major life activity of working, than they applied prior to the 

Amendments Act. ... Accordingly, as used in this section the terms “class of jobs” and 

“broad range of jobs in various classes” will be applied in a more straightforward and 

simple manner than they were applied by the courts prior to the Amendments Act.413 

Because the “class of jobs or broad range of jobs,” as applied before the ADAAA, had become 

very engrained in judicial analysis of the major life activity of working, it remains to be seen 

whether EEOC will succeed in its admirable effort to relax the criterion and limit its use. It will be 

important to keep a close eye on future court decisions to see if the standard has been 

appropriately lowered and confined. 

Finding 23: In addition to examining how well the courts are doing in carrying out the 

spirit and applying the specific provisions of the ADAAA, it will be important to monitor 

certain additional issue areas, incident to the Act and its implementation, that, depending 

upon the direction the court decisions take, have the potential to cause significant 

problems. Three such issues are (1) how the factor of duration affects the determination 

98
 
whether an impairment does or does not constitute a disability under the ADA; (2) 

application of the ADAAA provision freeing covered entities from the obligation to 

provide reasonable accommodations or reasonable modifications for individuals who 

meet the definition of disability only under the “regarded as” prong; and (3) the role of 

the major life activity of working and the application of the “class of jobs or broad range 

of jobs” standard in the determination whether an impairment substantially limits it. 

VII. RECOMMENDATIONS 

Consistent with its statutory mission that includes gathering information about the 

implementation, effectiveness, and impact of the ADA, and providing advice and 

recommendations to the President, Congress, and Federal agencies, NCD reports frequently 

include specific legislative, regulatory, and policy recommendations for the improvement of 

federal laws and programs affecting individuals with disabilities. Given the relative novelty of 

judicial consideration and application of the ADAAA, the current report provides a tentative 

preliminary assessment of the emerging trends and legal principles; as such, it does not provide 

a sufficient, solid basis for substantive policy and legislative recommendations. Accordingly, the 

recommendations presented here principally suggest the need for ongoing monitoring and study 

in certain designated issue areas, and some needed training and education initiatives. 

Recommendation 1: Led by the primary ADA enforcement agencies charged with 

implementing the requirements of the ADA – the Department of Justice, the Equal 

Employment Opportunity Commission, and the Department of Transportation – in 

conjunction with NCD, agencies of the federal government should maintain and 

systematize ongoing monitoring and analysis of court decisions interpreting and 

applying the changes in the law made by the ADAAA. 

In addition to analyzing the decisions, assessing how well the courts are doing in fulfilling the 

objectives of the ADA, and identifying problems and troubling decisions and lines of cases 

99
 
(including those identified in prior sections of this report), monitoring and research efforts should 

focus on specific issues and populations, including the following: 

	 The impact of the ADAAA on disability discrimination in the workplace, including the 

overall employment rates of people with disabilities. 

	 How the ADAAA is affecting: 

o the provision of accommodations by institutions of higher education. 

o	 implementation of requirements regarding the removal of architectural, 

transportation, and communication barriers. 

o	 examinations or courses related to applications, licensing, certification, or 

credentialing for secondary or postsecondary education, professional, or trade 

purposes. 

o	 accessibility of electronic services and websites. 

	 The effect of the ADAAA on: 

o	 people with invisible disabilities. 

o	 people with intellectual and developmental disabilities. 

o	 people with cognitive or information-processing disabilities. 

o	 people with disabilities from diverse cultures and diverse racial backgrounds. 

Recommendation 2: The Department of Justice and the Equal Employment Opportunity 

Commission, in conjunction with NCD, should organize, facilitate, and systematize 

programs for providing high quality information and training for judges regarding the 

content and implications of the revisions to ADA law made by the ADAAA. 

Such educational and training opportunities would assist judges by helping them become more 

aware of the changes made by the ADAAA to prior law, and assisting them to grasp and master 

the implications and nuances of the revisions, as well as to dispel misunderstandings. Finding 

11 of this report included the observation that “[a]lthough the courts have made a good start, 

routine acceptance and mastery by courts ... of these innovations will not occur easily or 

quickly,” and suggested that additional judicial education efforts devoted to these matters would 

greatly facilitate their dissemination and informed application. Members of the judiciary should 

be provided information about the ADAAA revisions, the implementing regulations, and the 

100
 
decisions of their fellow judges, including information of the kind provided in earlier sections of 

this report. 

Recommendation 3: The Department of Justice and the Equal Employment Opportunity 

Commission, in conjunction with NCD, should organize, facilitate, and systematize high 

quality continuing education and professional education programs for attorneys and 

other advocates regarding the content and implications of the revisions to ADA law 

made by the ADAAA. 

Subsection VI.D above described a number of cases in which plaintiffs had their lawsuits under 

the ADAAA thrown out of court due to deficient pleadings and other avoidable mistakes. Better 

training of attorneys who provide representation in ADA cases might help to reduce such 

failures to give individuals who believe they have been subject to discrimination based on 

disability their fair day in court. Such programs should target both public agency and private 

attorneys who practice or plan to practice disability nondiscrimination law, including, particularly, 

government lawyers, public interest lawyers, and lawyers for Protection and Advocacy 

agencies. The involvement and participation of the Regional ADA National Network Centers 

should be sought. 

101
 
 

 

ENDNOTES 

1

 154 Cong. Rec. S8349 (daily ed. Sept 11, 2008).

2 154 Cong. Rec. S8353 (daily ed. Sept. 11, 2008).

3 154 Cong. Rec. H8294 (daily ed. Sept. 17, 2008).

4

 The Righting the ADA report can be found on the NCD website at 

http://www.ncd.gov/publications/2004/Dec12004#IIIB. 5

 534 U.S. 184, 197 (2002).

6

 H.R. 6258, 109th Cong. (2006); S. 1881, 110th Cong. (2007); H.R. 3195,110th Cong. 

(2007)..

7

 Statement of Managers to Accompany ADA Amendments Act, 154 Cong. Rec. S8840-

S8844 (daily ed. Sept. 16, 2008).

8

 NCD recognizes that the ADAAA decisions of state courts are an important source of 

legal interpretation and application of the Act, but they raise complexities, comparability 

issues, and research quirks that make them somewhat more difficult to compile and 

analyze within the time and resource restraints of this project. 

9 Pub.L. No. 110–325, § 8; 122 Stat. 3553, 3553 (Sept. 25, 2008). 

10 Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 35 n. 3 (1st Cir.2009): Thomsen v. 

Stantec, Inc., 483 Fed.Appx. 620, 622 n. 2 (2d Cir. 2012); Weidow v. Scranton School Dist., 

460 Fed.Appx. 81, 185 n.7 (3d Cir. 2012); Lander v. ABF Freight System, Inc., 459 

Fed.Appx. 89, 91-92 (3d Cir. 2012); Young v. United Parcel Service, Inc., 707 F.3d 437, 

443 n.7 (4th Cir. 2013); Reynolds v. American Nat. Red Cross, 701 F.3d 143, 150 -152 (4th
 

Cir. 2012); Milton v. Texas Dept. of Criminal Justice, 707 F.3d 570, 573 n.2 (5th Cir. 2013); 

Wells v. Thaler, 460 Fed.Appx. 303, 312 n.20 (5th Cir. 2012); Bleak v. Providence Health 

Center, 454 Fed.Appx. 366, 368 n. 1 (5th Cir. 2011); Spence v. Donahoe, No. 11-3203, at 

*6, 2013 WL 628524 (6th Cir. February 21, 2013); Cardenas-Meade v. Pfizer, Inc., No. 12-

5043, at *2 n.1, 2013 WL 49570 (6th Cir. January 03, 2013); Powers v. USF Holland, Inc., 

667 F.3d 815, 823 n. 7 (7th Cir. 2011); Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 

734 n. 4 (8th Cir.2010); Elias v. Napolitano, No. 11-57056, at *1, 2013 WL 2177368 (9th Cir. 

May 21, 2013); Murphy v. Samson Resources Co., No. 12-5084, at *2 n.1, 2013 WL 

1896822 (10th Cir. May 08, 2013); Wehrley v. American Family Mut. Ins. Co., No. 12-1079, 

at *3, 2013 WL 1092856 (10th Cir. March 18, 2013); Latham v. Board of Educ. of 

Albuquerque Public Schools, 489 Fed.Appx. 239, 244-245 (10th Cir. 2012); Hetherington v. 

Wal-Mart, Inc., No. 12-13684, at *2 n.1, 2013 WL 811744 (11th Cir. March 05, 2013) 

(plaintiff conceded the ADAAA did not apply retroactively, and court rejected contention that 

legislative history of Act should be applied nonetheless); Kapche v. Holder, 677 F.3d 454, 

461 n.7 (D.C. Cir. 2012); Lytes v. DC Water and Sewer Authority, 572 F.3d 936, 940-942 

(D.C. Cir. 2009).

11 511 U.S. 244 (1994).

12 Id. at 264. 

13 122 Stat. at 3559. 

14 Cochran v. Holder, 436 Fed.Appx. 227, 232 (4th Cir. June 21, 2011).

15 Reynolds v. American Nat. Red Cross, 701 F.3d 143, 151 (4th Cir. 2012).

16 Id., quoting Landgraf, 511 U.S. at 273. 

102
 
 

 

 

17 Id., quoting Landgraf, 511 U.S. at 272–73.

18 Id. at 152. 

19 511 U.S. 244, 280 (1994).

20 572 F.3d 936, 940 (D.C.Cir.2009).
 21 Latham v. Board of Educ. of Albuquerque Public Schools, 489 Fed.Appx. 239, 245 (10th
 

Cir. 2012).

22 Id., quoting Landgraf, 511 U.S. at 280 (emphasis added in 10th Circ. Opinion). 

23 Id. at 245. 

24 Fernandez–Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (quoting Lindh v. Murphy, 521 

U.S. 320, 326 (1997)).
 25 Id. (quoting Landgraf, 511 U.S. at 278).
 26 Lytes v. DC Water and Sewer Authority, 572 F.3d 936, 939-940 (D.C. Cir. 2009) (citations 

to Landgraf omitted).

27 Id. at 940. 

28 Id.
 29 Id. at 941. 

30 EEOC, Questions and Answers on the Final Rule Implementing the ADA Amendments 

Act of 2008 (question 1), 

http://www1.eeoc.gov//laws/regulations/ada_qa_final_rule.cfm?renderforprint=1. 31 Jenkins v. National Bd. of Medical Examiners, No. 08-5371, at *1, 2009 WL 331638 (6th
 

Cir. Feb. 11, 2009).

32 534 U.S. 184 (2002).

33 Jenkins v. National Bd. of Medical Examiners, supra, at *1.

34 Id. at *2. 

35 Id. at *1. 

36 Id. at *2 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 247, 269-70, 282-83, 273 

(1994)).

37 Id. at *1 (citations omitted). 

38 Id.
 39 See, e,g,, Steffen v. Donahoe, 680 F.3d 738, 744-745 (7th Cir. 2012); Allen v. STHS Heart, 

LLC, No. 3:09-0455, at *12-*13, 2010 WL 2133901 (M.D.Tenn. May 21, 2010); Lawson v. 

Plantation General Hosp., L.P., 704 F.Supp.2d 1254, 1273 (S.D.Fla.2010); Geiger v. Pfizer, 

Inc., NO. 2:06-CV-636, at *2-*3, 2009 WL 973545 (S.D.Ohio Apr 10, 2009). 

40 555 F.3d 850, 853 (9th Cir.2009).

41 Id. at 860-861. 

42 Id. at 853. 

43 Id. at 861. 

44 Id., quoting P.L. 110–325, § 2(a)(4), 122 Stat. 3553 (2008) (codified at 42 U.S.C. § 12101 

note). 

45 Id. at 861, quoting provisions of the ADAAA, §§ 2(b)(5), 2(b)(6) & 4, at 122 Stat. 3554-

3556 (2008) (codified at 42 U.S.C. § 12101 note & 42 U.S.C. 12102 § (4)(E)(i)) (internal 

footnotes omitted).

46 Id. at 861-862, citing H.R.Rep. No. 110-730, at 8.

47 Id. at 862. 

103
 
 

 

48 Id. at 861. 

49 489 Fed.Appx. 239 (10th Cir. 2012).

50 662 F.3d 1134, 1144.

51 604 F.3d 848, 855.

52 610 F.3d 231, 236.

53 574 F.3d 169, 188 n. 17.

54 462 Fed.Appx. 773, 776–77.

55 455 Fed.Appx. 827, 834.

56 Latham v. Board of Educ. of Albuquerque Public Schools, 489 Fed.Appx. at 244-245 

(citations to specific ADAAA provisions omitted).

57 Reynolds v. American Nat. Red Cross, 701 F.3d 143 (4th Cir. 2012).

58 Id. at 152. 

59 Id. at 150-151 (internal citations omitted)..

60 409 Fed.Appx. 566 (3d Cir. 2011)

61 Id. at 568. 

62 696 F.3d 78, 87.

63 438 Fed.Appx. 388, 397 n.9.

64 378 Fed.Appx. 520, 525 n.7.

65 698 F.3d 598, 606 n.3.

66 433 Fed.Appx. 754, 762 n.9

67 696 F.3d 78, 87 n.6.

68 464 Fed.Appx. 395, 399 n. 2.

69 427 Fed.Appx. 337, 340.

70 698 F.3d 598, 606 n.3 (citations omitted). 

71 662 F.3d 1134, 1144.

72 Verhoff v. Time Warner Cable, Inc., 299 Fed.Appx. 488, 492 n. 2 (6th Cir. 2008) (citations 

to ADAAA provisions omitted).

73 Cochran v. Holder, 436 Fed.Appx. 227, 231 (4th Cir. 2011).

74 610 F.3d 231, 236 (5th Cir. 2010).

75 Id. 

76 Fryer v. Coil Tubing Services, LLC, 415 Fed.Appx. 37, 43 n.13 (10th Cir. 2011).

77 Hohider v. United Parcel Service, Inc., 574 F.3d 169, 188 n.17 (3d Cir. 2009).

78 Id., quoting 42 USC § 12102(3)(A).

79 Id., quoting 42 USC § 12102(3)(B).

80 Id., quoting 42 USC § 12201(h).

81 Dulaney v. Miami-Dade County, 481 Fed.Appx. 486, 489 n.3 (11th Circ. 2012).

82 Weidow v. Scranton School Dist., 460 Fed.Appx. 181,185-186 (3d Cir. 2012) (applying 

pre-ADAAA standards, the court ruled that the plaintiff had not shone that her bipolar 

disorder “severely restricted” her ability to interact with others, care for herself, concentrate, 

and sleep).

83 Grayer v. Welch, No. 09 C 3924, at *13, 2011 WL 4578373 (N.D.Ill. September 30, 2011) 

(“Plaintiff's status as a two-time breast cancer survivor fails to qualify as a “disability””). The 

court recognized that “under the ADA Amendments Act of 2008 (“ADAAA”), Plaintiff would 

in fact be considered disabled on account of her status as a two-time breast cancer 

survivor, as the ADAAA clearly provides that ‘an impairment that is episodic or in remission
 

104
 
 

 

 

is a disability if it would substantially limit a major life activity when active.’” Id. at *13 n.15 

(emphasis added by the court).

84 Rhodes v. Langston University, 462 Fed.Appx. 773, 779 (10th Cir. 2011) (“we conclude 

Rhodes' amputation and use of a prostheses constitute a physical impairment that is not 

substantially limiting,” applying the directive of the Supreme Court in Toyota Motor 

Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002) that the ADA “must ‘be 

interpreted strictly to create a demanding standard for qualifying as disabled’”). 

85 Id. 

86 Kemp v. Holder, 610 F.3d 231, 236 (5th Cir. 2010).

87 Carmona v. Southwest Airlines Co., 604 F.3d 848, 855 (5th Cir. 2010).

88 711 F.3d 883, 888-889 (8th Cir. 2013).

89 Id. at 888. 

90 Id. at 888-889 n.6. 

91 Id. at 889 (emphasis and bracketed insertion added by the court). 

92 Id. 

93 Id. 

94 Id. 

95 Id. at 890. 

96 29 U.S.C. § 794(a).

97 488 Fed.Appx. 465, 466 (11th Cir. 2012).

98 Id. at 466-467. 

99 Id. at 467. 

100 42 U.S.C. § 12102(3)(A) (emphasis added in the court’s quotation of the language 

reproduced here).

101 488 Fed.Appx. at 468.

102 488 Fed.Appx. at 468-469.

103 Allen v. SouthCrest Hosp., 455 Fed.Appx. 827, 828 (10th Cir. 2011).

104 Id. at 830. 

105 Id. at 834 (footnote and citations to ADAAA provisions omitted). 

106 ADAAA, P.L. 110–325 § 4, 122 Stat. 3555 (2008). 

107 Id. at § 2(a)(4), (6), & (7), 122 Stat. 3553.

108 Id. at § 2(b)(4) & (5), 122 Stat. 3554. 

109 Id. at 831 n.4 (quoting Allen’s Opening Appellate Brief, citation omitted). 

110 Id. at 829. 

111 Id. 

112 Id. 

113 Id. at 832. 

114 Id. at 831. 

115 Id. at 831. 

116 Id. at 831-832, citing EEOC v. Heartway Corp., 466 F.3d 1156, 1162 n. 5 (10th 

Cir.2006) (“If an individual is substantially limited in any other major life activity, no 

determination should be made as to whether the individual is substantially limited in 

working”). In EEOC v. Heartway Corp., the Tenth Circuit quoted the following from the 

Sutton decision: “even the EEOC has expressed reluctance to define ‘major life activities’ to 

105
 
 

 

 

 

 

 

 

include working and has suggested that working be viewed as a residual life activity, 

considered, as a last resort.” 466 F.3d 1156, 1162 n. 5, quoting Sutton v. United Air Lines, 

Inc., 527 U.S. 471, 492 (1999).

117 455 Fed.Appx. at 832, quoting Aplt.App., Vol. II at 192 (emphasis added by the court). 

118 Id. at 832. 

119 Id. at 833. 

120 Id. 

121 Id. 

122 Id., citing Johnson v. Weld Cty., 594 F.3d 1202, 1218 n. 10 (10th Cir. 2010).

123 Id.
 124 Id. at 834, citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999), which quoted 

29 C.F.R. § 1630.2(j)(3)(i) (2010).

125 455 Fed.Appx. at 834.

126 Id. at 835, quoting “Substantially Limited in Working,” Appendix to Part 1630—
 

Interpretive Guidance on Title I of the Americans With Disabilities Act, 29 C.F.R. Pt. 1630, 

App.

127 Id. 

128 Id. 

129 Id. 

130 Id. at 829. 

131 42 U.S.C. § 12102(4)(D).

132 42 U.S.C. § 12102(4)(E)(i).

133 Id. at § 2(b)(4) & (5), 122 Stat. 3554. 

134 Latham v. Board of Educ. of Albuquerque Public Schools, 489 Fed.Appx. 239, 245 (10th 

Cir. 2012) (citing Allen v. SouthCrest Hosp as “discussing congressional intent in enacting 

the ADAAA”).

135 Gregor v. Polar Semiconductor, Inc., No. CIV. 11-3306 DSD/TNL, at *3 n.5, 2013 WL 

588743 (D.Minn. Feb 13, 2013). The court quoted Allen v. SouthCrest Hosp. for its holding 

that “[t]he ADAAA did not ... explicitly discuss or modify the definition of the major life 

activity of working,” and its application of the 2010 regulations rather than retroactively 

applying the amended EEOC regulations. The Gregor court distinguished Allen because 

the case before it focused on the major life activity of performing manual tasks regarding 

which the 2010 EEOC regulations did not provide interpretive guidance, and the court 

found that “the amended EEOC regulations are persuasive indicia of Congress's intent 

when promulgating the ADAAA.” Id. 

136 Johnson v. City of Murray, No. 2:10-CV-1130 TS, at *20, 2012 WL 5473127 (D.Utah 

Nov 09, 2012) (citing Allen v. SouthCrest Hosp. primarily for “broad class of jobs” 

standard); Gluhic v. Safeway, Inc., No. 11-CV-02408-CMA-KMT, at *5, 2013 WL 1283820 

(D.Colo. Mar 28, 2013) (citing Allen v. SouthCrest Hosp. for elements of prima facie ADA 

case); Chicago Regional Council of Carpenters v. Thorne Associates, Inc., 893 F.Supp.2d 

952, 962 (N.D.Ill. 2012) (citing Allen v. SouthCrest Hosp. for “broad class of jobs” 

standard); Kinchion v. Cessna Aircraft Co., No. 12-1203-MLB, *8 n.6, 2013 WL 66077 

(D.Kan. Jan 04, 2013) (citing Allen v. SouthCrest Hosp. for ADAAA broadening of ADA 

coverage); Holmes v. Cutchall Management Kansas LLC, No. 10-2672-EFM, at *3 n.12, 

2012 WL 3071056 (D.Kan. Jul 26, 2012) (citing Allen v. SouthCrest Hosp. for holding that 

106
 
 

 

 

 

 

 

 

 

the third element in a disability termination claim requires the plaintiff to demonstrate that 

she was fired because of her disability); Azzam v. Baptist Healthcare Affiliates, Inc., 855 

F.Supp.2d 653, 660 (W.D.Ky. Jan 05, 2012) (citing Allen v. SouthCrest Hosp. for the 

ADAAA not being applied retroactively); Culotta v. Sodexo Remote Sites Partnership, 864 

F.Supp.2d 466, 476 (E.D.La. 2012) (citing Allen v. SouthCrest Hosp. for “broad class of 

jobs” standard); Hill v. Southeastern Freight Lines, Inc., 877 F.Supp.2d 375, 389 (M.D.N.C.
 

2012) (citing Allen v. SouthCrest Hosp. for “broad class of jobs” standard). 

137 Jenkins v. National Bd. of Medical Examiners, No. 08-5371, at *1, 2009 WL 331638 (6th
 

Cir. Feb. 11, 2009).

138 Jenkins v. National Bd. of Medical Examiners, No. 3:07-CV-698-H, at *3, 2008 WL 

410237 (W.D.Ky. Feb. 12, 2008).

139 Id. at *1. 

140 Id. at *3. 

141 Jenkins v. National Bd. of Medical Examiners, No. 08-5371, at *3, 2009 WL 331638 (6th
 

Cir. Feb. 11, 2009) (statutory citation omitted).

142 Id. at *3. 

143 Id. at *2. 

144 Id. at *3. 

145 Id. at *4. 

146 673 F.3d 120, 123-124 (2d Cir. 2012).

147 Id. at 123-124. 

148 Id. at 124. 

149 Id. 

150 Id. 

151 Id. 

152 Id. at 124-125. 

153 Id. at 125. 

154 Id.
 155 Id.
 156 Id. at 128. 

157 Id. 

158 Id. at 128-129 (quoting 42 U.S.C. § 12102(3)(A), emphasis added by the court). 

159 H.R.Rep. No. 110–730, pt. 1, at 14 (2008) (emphasis added). 

160 673 F.3d at 129. 

161 Id. at 129 & n.8. 

162 Id. at 129 n.8. 

163 Id. at 129. 

164 Id. at 129. 

165 Id. at 129-130. 

166 Id. at 130. 

167 Id. at 131. 

168 495 Fed.Appx. 899 (10th Cir. 2012).

169 Id. at 901. 

170 Id. 

107
 
 

 

 

 

 

171 Id. at 901-902. 

172 Id. at 902. 

173 Id.
 174 Id. (quoting Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir.2005), and 

citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996)).

175 Id.
 176 700 F.3d 635, 637 (2d Cir. 2012).

177 Id. 

178 McElwee v. County of Orange, No. 10 Civ. 00138(KTD), at *1, 2011 WL 4576123 

(S.D.N.Y. Sept. 30, 2011). 

179 700 F.3d at 637. 

180 Id. at 637-639. 

181 Id. at 639 (quoting McElwee v. County of Orange, No. 10 Civ. 00138(KTD), at *6, 2011 

WL 4576123 (S.D.N.Y. Sept. 30, 2011)).

182 700 F.3d at 642. 

183 Id. at 642 & n.5. 

184 Id. at 643 (discussing 42 U.S.C. § 12102(2); 29 C.F.R. §§ 1630.2(j)(1)(i) & (j)(3)(iii)). 

185 Id. at 643. 

186 Id. 

187 Id. at 644-646. 

188 P.L. 110–325, § 2(b)(1), 122 Stat. 3553 (Sept. 25, 2008) (codified at 42 U.S.C. § 12101 

note) (emphasis added).

189 42 U.S.C. § 12102(4)(A).

190 Statement of Managers to Accompany ADA Amendments Act, 154 Cong. Rec. S8840, 

S8841 (daily ed. Sept. 16, 2008).

191 29 C.F.R. § 1630.1(c)(4).

192 Anderson v. Kohl's Corp., No. 2:12-CV-00822, at *6-*7, 2013 WL 1874812 (W.D.Pa. 

May 03, 2013) (citations omitted) 

193 Semenko v. Wendy's Intern., Inc., No. 2:12-CV-0836, at *6, 2013 WL 1568407 

(W.D.Pa., April 12, 2013) (quoting Chedwick v. UPMC, No. 07–806, at *19, 2011 WL 

1559792 (W.D.Pa. April 21, 2011)). 

194 Barlow v. Walgreen Co., No. 8:11-CV-71-T-30EAJ, at *4, 2012 WL 868807 (M.D.Fla. 

March 14, 2012). The identical statement has been made by other courts. See, e.g., Beatty 

v. Hudco Industrial Products, Inc., 881 F.Supp.2d 1344. 1351 (N.D.Ala. 2012); Mecca v. 

Florida Health Sciences Center Inc., No. 8:12-CV-2561-T-30TBM, at *2, 2013 WL 136212 

(M.D.Fla. Jan. 10, 2013).

195 Jones v. Bracco Ltd. Partnership, No. CIV. 11-4117-KES, at *7 n.4, 2013 WL 696381 

(D.S.D. February 26, 2013) (quoting Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 

(8th Cir.2010)).

196 Haley v. Community Mercy Health Partners, No. 3:11-CV-232, at *11, 2013 WL 322493
 

(S.D.Ohio Jan. 28, 2013).

197 Graham v. St. John's United Methodist Church, No. 12–CV–297–MJR, at *3, 2012 WL 

5298156 (S.D.Ill. Oct.25, 2012) (quoting 42 U.S.C. § 12102(4)(A)). This language was 

quoted in Newman v. Gagan LLC, No. 2:12-CV-248-JVB-PRC, at *11, 2013 WL 1332247 

108
 
 

(N.D.Ind. March 28, 2013). The latter court referred also to “the substantial liberalizations of 

the 200[8] ADA Amendments Act.” 2013 WL 1332247, at *10. 

198 Johnson v. Farmers Ins. Exchange, No. CIV-11-963-C, at *1, 2012 WL 95387 

(W.D.Okla. Jan.12, 2012).

199 Kravits v. Shinseki, No. CIV.A. 10-861, at *5, 2012 WL 604169 (W.D.Pa. Feb. 24, 2012). 

The identical statement was made by another court in Karr v. Napolitano, No. C 11-02207 

LB, at *8, 2012 WL 4462919 (N.D.Cal. Sept. 25, 2012).

200 Carter v. City of Syracuse School Dist., No. 5:10-CV-690 FJS/TWD, at *4 n.6, 2012 WL 

930798 (N.D.N.Y. March 19, 2012). 

201 Mills v. Temple University, 869 F.Supp.2d 609, 620 (E.D.Pa. 2012).

202 Cleveland v. Mueller Copper Tube Co., Inc., No. 1:10CV307-SA-SAA, at *4, 2012 WL 

1192125 (N.D.Miss. April 10, 2012). 

203 Molina v. DSI Renal, Inc., 840 F.Supp.2d 984, 993 (W.D.Tex. 2012) (footnotes omitted). 

204 Curley v. City of North Las Vegas, No. 2:09-CV-01071-KJD, at *3, 2012 WL 1439060 

(D.Nev. April 25, 2012).

205 Diaz v. City of Philadelphia, No. CIV.A. 11-671, at *9, 2012 WL 1657866, (E.D.Pa. May 

10, 2012).

206 Pearce-Mato v. Shinseki, No. 2:10-CV-1029, at *6, 2012 WL 2116533 (W.D.Pa. June 

11, 2012).

207 Mayorga v. Alorica, Inc., No. 12-21578-CIV, at *4, 2012 WL 3043021 (S.D.Fla. July 25, 

2012).

208 Poper v. SCA Americas, Inc., No. CIV.A. 10-3201, at *8, 2012 WL 3288111 (E.D.Pa. 

August 13, 2012).

209 George v. Roush & Yates Racing Engines, LLC, No. 5:11CV00025-RLV, at *5, 2012 WL 

3542633 (W.D.N.C. Aug. 16, 2012).

210 Love v. Baptist Memorial Hosp. - North Mississippi, Inc., No. 2:10CV176-SA-JMV, at *3, 

2012 WL 4465569 (N.D.Miss. Sept. 25, 2012). 

211 Flynt v. Biogen Idec, Inc., No. 3:11-CV-22-HTW-LRA, at *4, 2012 WL 4588570 

(S.D.Miss. Sept. 30, 2012).

212 Butler v. BTC Foods Inc., No. CIV.A. 12-492, at *2, 2012 WL 5315034 (E.D.Pa. Oct. 19, 

2012).

213 Peters v. University of Cincinnati College of Medicine, No. 1:10-CV-906, at *6, 2012 WL 

3878601 (S.D.Ohio Sept. 06, 2012).

214 Harty v. City of Sanford, No. 11–cv–1041, at *5, 2012 WL 3243282 (M.D.Fla. Aug. 8, 

2012), quoted in Rico v. Xcel Energy, Inc., 893 F.Supp.2d 1165, 1169 (D.N.M. 2012).

215 Cordova v. University of Notre Dame Du Lac, No. 3:12-CV-153, 2013 WL 1332268 

(N.D.Ind. March 29, 2013).

216 Id. at *3-*4 (citations omitted).

217 Healy v. National Bd. of Osteopathic Medical Examiners, Inc., 870 F.Supp.2d 607, 617 

(S.D.Ind. 2012) (citations omitted).

218 No. CIV.A. 10-4126 PGS, at *12-*16, 2012 WL 1623870 (D.N.J. May 9, 2012). 

219 P.L. 110–325, § 2(b)(4), 122 Stat. 3554 (2008) (codified at 42 U.S.C. § 12101 note). 

220 Statement of Managers to Accompany ADA Amendments Act, 154 Cong. Rec. S8840, 

S8844 n. 17 (daily ed. Sept. 16, 2008), citing “Substantially Limited in Working,” Appendix 

109
 
 

 

 

 

 

 

to Part 1630—Interpretive Guidance on Title I of the Americans With Disabilities Act, 29 

C.F.R. Pt. 1630, App. (Section 1630.2(i) Major Life Activities). 

221 In its Righting the ADA report (2004), NCD proposed a more proper definition with a 

considerably expanded list of examples: 

The term "major life activities of such individual" means activities that either are 

important in the individual's life or are important for most people in the general 

population. It includes all significant endeavors of ordinary daily and occupational life, 

such as living; breathing; caring for one's self, including personal-care tasks; eating; 

standing, walking, and running; seeing; hearing; speaking; thinking, learning, 

and concentrating; lifting, reaching, grabbing, climbing, holding, and performing 

manual tasks, including housework and household chores, and manual job tasks; 

working; dating and engaging in sexual activities; procreating; sleeping; interacting 

and communicating with others; reading and writing; driving; and engaging in 

physical exercise. 

Id. at 113. 

222 42 U.S.C. § 12102(2)(A).

223 29 C.F.R. § 1630.2(i)(1)(i).

224 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.2(i) Major Life Activities). 

225 Id. 

226 Thomas v. Bala Nursing & Retirement Center, No. CIV.A. 11-5771, at *1, 2012 WL 

2581057 (E.D.Pa., July 03, 2012).

227 Id. at *2, *6. 

228 Id. at *6 n.14. 

229 Id., quoting Taylor v. Phoenixville School Dist., 184 F.3d 296, 307 (3d Cir.1999) (finding 

“thinking” to be a major life activity because it is “inescapably central to anyone's life”). 

230 Id. 

231 See, e.g., Williams v. U.S. Services, Inc., No. CIV.A. 2:10-1546-RMG, at *5, *7, 2012 WL 

590049 (D.S.C., January 31, 2012) (sitting); Molina v. DSI Renal, Inc., 840 F.Supp.2d 984, 994-

996 (W.D.Tex. 2012) (sitting) (EEOC regulations considered “helpful guidance” in claim under 

state Human Relations Act); Bar-Meir v. University of Minnesota, No. CIV. 10-936 SRN/JJK, at 

*2-*3, 2012 WL 2402849 (D.Minn., June 26, 2012) (interacting with others). 

232 Howard v. Steris Corp., 886 F.Supp.2d 1279, 1291 (M.D..Ala..2012), quoting 

Lloyd v. Montgomery Hous. Auth., 857 F.Supp.2d 1252, 1263, No. 2:10–cv–1103, 2012 WL 

1466561, at *7 (M.D.Ala. Apr. 27, 2012). In both decisions, however, the court ruled that 

the plaintiff had met his initial burden of showing that he had a disability under the 

broadened list. Howard, at 886 F.Supp.2d 1291-1292; Lloyd, 857 F.Supp.2d at 1264.

233 42 U.S.C. § 12102(2)(B).

234 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.2(i) Major Life Activities). 

235 29 C.F.R. § 1630.2(i)(1)(ii). 

236 Id. 

237 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.2(i) Major Life Activities). 

110
 
 

 

 

 

238 Id. 

239 Id. 

240 29 C.F.R. § 1630.2(j)(3)(i). 

241 Id., § 1630.2(j)(3)(ii).

242 Id., § 1630.2(j)(3)(iii).

243 Id. 

244 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.2(j)(3) Predictable Assessments) 

(quoting Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249, 256 (4th Cir. 2006)).

245 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.2(j)(3) Predictable Assessments). 

246 Franklin v. City of Slidell, No. CIV.A. 12-1940, at *11, 2013 WL 1288405, (E.D.La. March 

27, 2013); Kravits v. Shinseki, No. CIV.A. 10-861, at *5, 2012 WL 604169 (W.D.Pa. Feb. 24, 

2012) (observing that “[t]he regulations expressly state that “post-traumatic stress disorder 

substantially limits brain function,” but that the plaintiff had identified no actual evidence that he 

suffered from the condition).

247 Haley v. Community Mercy Health Partners, No. 3:11-CV-232, at *11, 2013 WL 322493 

(S.D.Ohio Jan. 28, 2013); Angell v. Fairmount Fire Protection Dist., No. 11-CV-03025-

CMA-CBS, at *4, 2012 WL 5389777 (D.Colo. Nov. 5, 2012); Katz v. Adecco USA, Inc., 845 

F.Supp.2d 539, 548 (S.D.N.Y.2012); Norton v. Assisted Living Concepts, Inc., 786 

F.Supp.2d 1173, 1185 (E.D.Tex. 2011); Hoffman v. Carefirst of Fort Wayne, Inc., 737 

F.Supp.2d 976, 985–86 (N.D.Ind. 2010); Chalfont v. U.S. Electrodes, No. 10–2929, at *9, 

2010 WL 5341846 (E.D.Pa. Dec. 28, 2010).

248 Coker v. Enhanced Senior Living, Inc., 897 F.Supp.2d 1366, 68-1369,1375-1376 

(N.D.Ga. 2012).

249 Feldman v. Law Enforcement Associates Corp., 779 F.Supp.2d 472, 483-484 (E.D.N.C. 

2011); Carbaugh v. Unisoft Intern., Inc., No. H–10–0670, at *8, 2011 WL 5553724 

(S.D.Tex. Nov. 15, 2011) (citing with approval Feldman v. Law Enforcement Associates 

Corp., 779 F.Supp.2d at 483-484).

250 Hardin v. Christus Health Southeast Texas St. Elizabeth, No. 1:10-CV-596, at *6. 2012 

WL 760642 (E.D.Tex. Jan. 6, 2012).

251 Lapier v. Prince George's County, Md., No. 10-CV-2851 AW), at *1, *8, 2012 WL 

1552780, (D.Md. April 27, 2012 ).

252 Alexiadis v. New York College of Health Professions, 891 F.Supp.2d 418, 428, 429-430 

(E.D.N.Y. 2012).

253 Lema v. Comfort Inn, No. 1:10-CV-00362-SMS, at *2, *9, 2013 WL 1345510, (E.D.Cal. 

April 03, 2013).

254 Davis v. Vermont, Dept. of Corrections, 868 F.Supp.2d 313, 325 (D.Vt. 2012).

255 Kravtsov v. Town of Greenburgh, No. 10-CV-3142 CS, at *1, *10 n.25, 2012 WL 

2719663 (S.D.N.Y. July 09, 2012).

256 Barlow v. Walgreen Co., No. 8:11-CV-71-T-30EAJ, at *4, 2012 WL 868807 (M.D.Fla., 

March 14, 2012).

257 Fierro v. Knight Transp., No. EP-12-CV-00218-DCG, at *3, 2012 WL 4321304 

(W.D.Tex., Sept. 18, 2012). 

111
 
 

 

 

 

 

 

 

 

 

 

258 Id., citing Ellison v. Software Spectrum, Inc., 85 F.3d 187, 190–91 (5th Cir.1996). 

259 Jones v. Bracco Ltd. Partnership, No. CIV. 11-4117-KES, at *8, 2013 WL 696381 

(D.S.D. February 26, 2013).

260 Id. at *9. 

261 527 U.S. 471, 482 (1999).

262 NCD, Righting the ADA, at 44. 

263 42 U.S.C. § 12102(4)(E)(i).

264 29 C.F.R. §1630.2(j)(1)(vi). 

265 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. §1630.2(j)(1)(vi) Mitigating Measures). 

266 Orne v. Christie, No. 3:12-CV-00290-JAG, at *2, 2013 WL 85171 (E.D.Va. Jan. 7, 2013). 

267 Id. 

268 Id. at *3. 

269 Id. 

270 Id. 

271 Barrett v. Bio-Medical Applications of Maryland, Inc., No. CIV.A. ELH-11-2835, at *8, 

2013 WL 1183363 (D.Md. March 19, 2013). 

272 Id. 

273 Id. at *8. 

274 Id. at *9 (emphasis added by the court).

275 Id. at *10. 

276 Harty v. City of Sanford, No. 11–cv–1041, 2012 WL 3243282 (M.D.Fla. Aug. 8, 2012).

277 Id. at *4. 

278 Id. 

279 Id. 

280 Id. at *5. 

281 Id. 

282 Id., quoting 29 C.F.R. § 1630.2(j)(5)(iv).

283 Id. at n.8. 

284 Lloyd v. Housing Authority, 857 F.Supp.2d 1252, 1258-1259, 1260, 1263 

(M.D.Ala.2012).

285 Id. at 1263 (statutory citations omitted).

286 Id. 

287 Id. at 1263-1264. 

288 O'Donnell v. Colonial Intermediate Unit 20, No. CIV.A. 12-6529, at *1, *4, *6, 2013 WL 

1234813 (E.D.Pa. March 27, 2013).

289 Id. at *6. 

290 Id. 

291 Id. at *10. 

292 42 U.S.C. § 12102(4)(D).

293 29 C.F.R. § 1630.2(j)(1)(vii). 

294 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(j)(1)(vii) Impairments That 

Are Episodic or in Remission), quoting House Majority Leader Steny Hoyer and 

112
 
 

 

 

 

 

 

Representative Jim Sensenbrenner, Joint Statement on the Origins of the ADA Restoration 

Act of 2008, H.R. 3195, 154 Cong. Rec. H6067 (daily ed. June 25, 2008).

295 Id., quoting H.R. Rep. No. 110-730, pt. 2, at 19-20 (2008) (Judiciary Committee). 

296 Id. 

297 E.g., Haley v. Community Mercy Health Partners, No. 3:11-CV-232, at *11, 2013 WL 

322493 (S.D.Ohio Jan. 28, 2013); Angell v. Fairmount Fire Protection Dist., No. 11-CV03025-CMA-CBS, at *4, 2012 WL 5389777 (D.Colo. Nov. 5, 2012); Katz v. Adecco USA, 

Inc., 845 F.Supp.2d 539, 548 (S.D.N.Y.2012); Norton v. Assisted Living Concepts, Inc., 786 

F.Supp.2d 1173, 1185 (E.D.Tex. 2011); Hoffman v. Carefirst of Fort Wayne, Inc., 737 

F.Supp.2d 976, 985–86 (N.D.Ind. 2010); Chalfont v. U.S. Electrodes, No. 10–2929, at *9, 

2010 WL 5341846 (E.D.Pa. Dec. 28, 2010).

298 Howard v. Pennsylvania Dept. of Public Welfare, No. CIV.A. 11-1938, at *12, 2013 WL 

102662 (E.D.Pa. Jan. 9, 2013).

299 Pearce-Mato v. Shinseki, No. 2:10-CV-1029, at *7, *9, *10-*11, 2012 WL 2116533 

(W.D.Pa. June 11, 2012).

300 Hardin v. Christus Health Southeast Texas St. Elizabeth, No. 1:10-CV-596, at *6. 2012 

WL 760642 (E.D.Tex. Jan. 6, 2012).

301 Molina v. DSI Renal, Inc., 840 F.Supp.2d 984, 994-995 (W.D.Tex. 2012).

302 Esparza v. Pierre Foods, Nos. 1:11-CVB874, 1:11-CV875-HJW, at *6, 2013 WL 550671 

(S.D.Ohio Feb. 12, 2013).

303 29 C.F.R. § 1630.2(j)(1)(ix).

304 Id. (emphasis added).

305 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(j)(1)(ix): Effects of an 

Impairment Lasting Fewer Than Six Months Can Be Substantially Limiting). 306 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(j)(1)(ix): Effects of an 

Impairment Lasting Fewer Than Six Months Can Be Substantially Limiting), quoting House 

Majority Leader Steny Hoyer and Representative Jim Sensenbrenner, Joint Statement on 

the Origins of the ADA Restoration Act of 2008, H.R. 3195, 154 Cong. Rec. H6068 (daily 

ed. June 25, 2008).

307 Newman v. Gagan LLC, No. 2:12-CV-248-JVB-PRC, at *2, 2013 WL 1332247 (N.D.Ind. 

March 28, 2013).

308 Id. 

309 Id. 

310 Id. 

311 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(j)(1)(ix): Effects of an 

Impairment Lasting Fewer Than Six Months Can Be Substantially Limiting). 312 Green v. DGG Properties Co., Inc., No. 3:11-CV-01989 VLB, 2013 WL 395484 (D.Conn. 

Jan. 31, 2013).

313 Id. at *11. 

314 Id. at *1. 

315 Id. 

113
 
 

 

 

 

 

 

 

316 Id. 

317 Id. at *11. 

318 Id. at *9. 

319 Id. at *10, quoting Hutchinson v. Ecolab, Inc., No.3:09cv1848 (JBA), 2011 WL 4542957,
 

at *8 n.6 (D.Conn. Sept. 28, 2011).

320 Id. 

321 Id., quoting, respectively, Kennebrew v. N.Y. City Housing Auth., No. 01 CIV 1654, , at 

*18 n. 32, 2002 WL 265120 (S.D.N.Y. Feb. 26, 2002); Leahy v. Gap. Inc., No. 07–CV–
 

2008, at *4, 2008 WL 2946007 (E.D.N.Y. July 29, 2008); Green v. N.Y. City Health & Hosp. 

Corp., No. 04–CV–5144, at *4, 2008 WL 144828 (S.D.N.Y. Jan. 15, 2008); Adams v. 

Citizens Advice Bureau, 187 F.3d 315, 316–17 (2d Cir.1999); Williams v. Salvation Army,
 

108 F.Supp.2d 303, 312–13 (S.D.N.Y.2000) (same).

322 Id. at *11. 

323 Id. 

324 Id. 

325 Id. 

326 ADAAA, § 2(b)(3) at 122 Stat. 3554 (2008) (codified at 42 U.S.C. § 12101 note). 

327 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(l) Substantially Limited in a 

Major Life Activity), quoting Statement of Managers – S. 3406, 154 Cong. Rec. S8840, 

S8842 (daily ed. Sept. 16, 2008); H.R. Rep. No. 110-730, pt. 2, at 17 (2008) (Judiciary 

Committee).

328 Walker v. Venetian Casino Resort, LLC, No. 02:10-CV-00195-LRH, at *1, *14, 2012 WL 

4794149, (D.Nev. Oct. 9, 2012).

329 Id. at *14 (citations omitted).

330 Id. at *14-*15, quoting EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of 

the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. (“Introduction”) (citations 

omitted).

331 Id. at *15, quoting School Board of Nassau County v. Arline, 480 U.S. 273, 282 (1980), 

which set forth a broad view of the third prong of the definition of handicap under the 

Rehabilitation Act of 1973. 

332 Id. at *15 n.11. 

333 Id. at *15. 

334 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(l) Substantially Limited in a 

Major Life Activity), citing H.R. Rep. No. 110-730, pt. 2, at 17 (2008) (Judiciary Committee). 

335 42 U.S.C. § 12102(3)(A).

336 29 C.F.R. § 1630.2(g) (iii). 

337 See, e.g., Gil v. Vortex, LLC, 697 F.Supp.2d 234, 240-241 (D.Mass. 2010) (plaintiff 

“establish[ed] a plausible allegation that Vortex believed him to be disabled, and terminated 

him as a result,” so plaintiff “met his burden of pleading a claim of ‘regarded as’ disability”); 

Barnes v. Metropolitan Management Group, L.L.C., No. 11-CV-3355 AW, at *4, 2012 WL 

1552799 (D.Md. Apr. 27, 2012) (plaintiff was fired because she was “a liability to the 

company” due to her back injury and “[a]ccordingly, Plaintiff has stated a cognizable 

114
 
 

 

perceived disability discrimination claim”); Shelton v. City of Cincinnati, No. 1:11-CV-381,
 

2012 WL 5385601 (S.D.Ohio Nov. 1, 2012) (plaintiff with diabetes and chronic kidney 

disease who was subjected to adverse employment action of being refused reinstatement 

to full-duty status had established “genuine issues of material fact as to whether the City 

regarded plaintiff as disabled under the more lenient ADAAA standard”); Azzam v. Baptist 

Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 661 (W.D.Ky. 2012) (plaintiff was terminated 

after having a stroke/cardiovascular incident; court found that, “pursuant to the broadened 

standards of the ADAAA, such evidence [was] sufficient to show that Plaintiff was regarded 

as disabled”); Wells v. Cincinnati Children's Hosp. Medical Center, 860 F.Supp.2d 469, 478 

(S.D.Ohio 2012) (“sufficient evidence in the record to demonstrate to a reasonable juror 

that [the defendant] regarded Plaintiff as disabled and took adverse employment action 

against the Plaintiff on the basis of a perceived disability”); Davis v. NYC Dept. of Educ.,
 

No. 10-CV-3812 KAM LB, at *6, *8, 2012 WL 139255 (E.D.N.Y. Jan. 18, 2012) (plaintiff 

whose employer withheld part of her expected bonus after she went on medical leave as a 

result of injuries suffered in an automobile accident had suffered an “adverse action” and 

and sufficiently alleged that she was regarded as having a disability) Cleveland v. Mueller 

Copper Tube Co., Inc., No. 1:10CV307-SA-SAA, at *4, 2012 WL 1192125 (N.D.Miss. April 

10, 2012) (plaintiff who had suffered a back injury (from a lift truck accident) who had some 

lifting limitations was denied a block crane position she desired; court ruled that “assuming 

Cleveland can otherwise show that Mueller's failure to place her in the block crane position 

was a ‘prohibited action,’ there is sufficient evidence in the record from which a reasonable 

juror could conclude that Cleveland was ‘regarded as’ having a disability”); 

338 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(l) Substantially Limited in a 

Major Life Activity).

339 Jenkins v. Medical Laboratories of Eastern Iowa, Inc., 880 F.Supp.2d 946, 958 (N.D. 

Iowa 2012). 

340 Id. at 954. 

341 Id. at 959. 

342 Id. at 960. 

343 Butler v. BTC Foods Inc., No. CIV.A. 12-492, at *1, 2012 WL 5315034 (E.D.Pa. Oct. 19, 

2012).

344 Id. at *4. 

345 Id. at *3. 

346 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(l) Substantially Limited in a 

Major Life Activity).

347 42 U.S.C. § 12102(3)(B).

348 Davis v. NYC Dept. of Educ., No. 10-CV-3812 KAM LB, at *1, 2012 WL 139255 (E.D.N.Y. 

Jan. 18, 2012).

349 Id. at *5. 

350 Id., quoting 29 C.F.R. § 1630.15(f) (2011). 

351 Id. at *5. 

352 Id.
 

115
 
 

 

 

 

 

 

 

 

 

353 Saley v. Caney Fork, LLC, 886 F.Supp.2d 837, 850 (M.D.Tenn. 2012).

354 Id. at 850-851, citing 29 C.F.R. § 1630.2(j)(2).

355 Id. at 850. 

356 Id. at 851, quoting 29 C.F.R. § 1630.15(f); EEOC, Appendix to Part 1630—Interpretive 

Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 

C.F.R. § 1630.2(l) Substantially Limited in a Major Life Activity). 

357 Id. at 851, quoting EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the 

Americans with Disabilities Act, 29 C.F.R. Pt. 1630, App. (29 C.F.R. § 1630.2(l) 

Substantially Limited in a Major Life Activity).

358 Id. at 851, quoting 29 C.F.R.. § 1630.15(f).

359 Id. at 850. 

360 Id. at 851-852 (citations omitted).

361 Id. at 852. 

362 Martinez v. City of Weslaco Tex., No. 7:12–CV–417, at *1, 2013 WL 2951060 (S.D.Tex. 

June 14, 2013).

363 Id. at *9. 

364 Id. 

365 Id. 

366 Kiniropoulos v. Northampton County Child Welfare Service, No. CIV.A. 11-6593, at *1, 

2013 WL 140109, (E.D.Pa. Jan. 11, 2013).

367 Id. (emphasis added by the court).

368 Id. 

369 Id. at *4, *1 n.2.

370 Id. at *5. 

371 Id. 

372 Id. 

373 Zurenda v. Cardiology Associates, P.C., 3:10–CV–0882, at *4, *5, 2012 WL 1801740 

(N.D.N.Y. May 16, 2012). 

374 Id. at *5. 

375 Id. at *9. 

376 Tramp v. Associated Underwriters, Inc., No. 8:11CV371, at *7, 2013 WL 3071258 

(D.Neb. June 17, 2013).

377 Id. 

378 Id. 

379 Id. 

380 42 U.S.C. § 12201(h).

381 See, e.g., Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 662 (W.D.Ky. 

2012) (the plaintiff “was not entitled to reasonable accommodation because she only 

qualified as disabled under the ‘regarded as’ prong”); Walker v. Venetian Casino Resort, 

LLC, No. 02:10-CV-00195-LRH, at *15, 2012 WL 4794149, (D.Nev. Oct. 9, 2012) (“Under 

the ADAAA ... an employer has no duty to accommodate a regarded-as disability”); Hoback 

v. City of Chattanooga, No. 1:10–CV–74, at *4, 2012 WL 3834828 (E.D.Tenn. Sept. 4, 

2012) (quoted the statutory language); Ryan v. Columbus Regional Healthcare System, 

Inc., No. 7:10-CV-234-BR, at *5, 2012 WL 1230234 (E.D.N.C. Apr. 12, 2012) (“the ADAAA 

has now clarified that an individual who is ‘regarded as’ disabled is not entitled to a 

116
 
 

 

 

reasonable accommodation”); Dennis v. Cnty. of Atl. Cnty., Civ. A. No. 09– 

6171(NLH)(AMD) , at *5, 2012 WL 1059420 (D.N.J. Mar. 28, 2012) (“[T]he 2008 

amendments to the ADA exempt public employers from the requirement of providing 

accommodations for ‘regarded as' disabilities.”); Mercer v. Drohan Mgmt. Grp., Inc., No. 

1:10CV1212, at *7, 2011 WL 5975234 (E.D.Va. Nov. 28, 2011) (“[T]he 2008 Amendments 

to the ADA formally adopt th[e] position” that an employer is not obligated to accommodate 

an employee who is merely regarded as disabled.); Fleck v. WILMAC Corp., Civ. A. No. 

10–05562, at *6 n. 3, 2011 WL 1899198 (E.D.Pa. May 19, 2011) (“Notably, the ADAAA ... 

dictates that a plaintiff who is only perceived as disabled may not seek reasonable 

accommodation.”); Blackburn v. Trs. of Guilford Tech. Cmty. Coll., 733 F.Supp.2d 659, 665 

n. 4 (M.D.N.C. 2010) (noting that the ADAAA, although not retroactively applicable to the 

case, formally adopted the position that an employer is under no obligation to 

accommodate an employee who is simply regarded as disabled); Bateman v. Am. Airlines, 

Inc., 614 F.Supp.2d 660, 672–73 (E.D.Va. 2009) (same).

382 See, e.g., Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 662 (W.D.Ky. 

2012) (plaintiff who was not entitled to reasonable accommodation because she only 

qualified as disabled under the regarded-as prong, “could not perform the essential 

functions of a surgical RN, [and therefore] was not ‘otherwise qualified” for the position”); 

Hoback v. City of Chattanooga, No. 1:10–CV–74, at *4, 2012 WL 3834828 (E.D.Tenn. 

Sept. 4, 2012) (“an individual who is only “regarded as” disabled must be able to perform 

the essential functions of the job without reasonable accommodation”); Walker v. Venetian 

Casino Resort, LLC, No. 02:10-CV-00195-LRH, at *15, 2012 WL 4794149, (D.Nev. Oct. 9, 

2012) (because her employer had no duty to accommodate a regarded-as disability, and 

the plaintiff “has not demonstrated that she was qualified for her job absent 

accommodation, she has failed to properly allege the elements of an ADA discrimination 

claim”).

383 29 C.F.R. § 1630.2(g)(3).

384 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.2(g) Disability) (quoting 

Representative Steny Hoyer and Representative Jim Sensenbrenner, Joint Statement on 

the Origins of the ADA Restoration Act of 2008, H.R. 3195, 154 Cong. Rec. H6067, H6068 

(daily ed. June 25, 2008)). 385 See, e.g., Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 662 (W.D.Ky. 

2012); Walker v. Venetian Casino Resort, LLC, No. 02:10-CV-00195-LRH, at *15, 2012 WL 

4794149, (D.Nev. Oct. 9, 2012)).

386 P.L. 110–325, at § 2(b)(4), 122 Stat. 3554 (2008), (codified at 42 U.S.C. § 12101 note). 

387 Id. 

388 EEOC, Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with 

Disabilities Act, 29 C.F.R. Pt. 1630, App. (Section 1630.4 Discrimination Prohibited). This 

statement was quoted by the court in Angell v. Fairmount Fire Protection Dist., No. 11-CV03025-CMA-CBS, at *4 n.7, 2012 WL 5389777 (D.Colo. Nov. 5, 2012). 

389 Beatty v. Hudco Industrial Products, Inc., 881 F.Supp.2d 1344, 1355 (N.D.Ala. 2012).

390 Id. at 1356. 

391 Barlucea Matos v. Corporacion del Fondo del Seguro del Estado,
 

117
 
 

 

 

No. CIV. 10-1868 GAG, at *6, 2013 WL 1010558 (D.Puerto Rico Mar. 14, 2013).

392 Torres v. Bremen Castings, Inc., No. 3:11-CV-035, at p. *10 n.7, 2012 WL 4498876 

(N.D.Ind. Sept. 28, 2012) (statutory citation omitted) (emphasis added). 

393 42 U.S.C. § 12102(2).

394 29 C.F.R. § 1630.2(j)(1)(iv). 

395 Fleishman v. Continental Cas. Co., 698 F.3d 598, 606-607 (7th Cir. 2012) (ADAAA not in 

effect).

396 Carter v. City of Syracuse School Dist., No. 5,10-CV-690 FJS/TWD, at *5, 2012 WL 

930798 (N.D.N.Y. Mar. 19, 2012) (statutory citation omitted) (Section 504 case). 

397 Dube v. Texas Health and Human Services Com'n, No. SA-11-CV-354-XR, at *4, 2012 

WL 2397566 (W.D.Tex. June 25, 2012).

398 Wanamaker v. Westport Bd. of Educ., 899 F.Supp.2d 193, 210 (D.Conn. 2012).

399 Id. at 212. 

400 Mecca v. Florida Health Sciences Center Inc., No. 8:12-CV-2561-T-30TBM, at *2, 2013 

WL 136212 (M.D.Fla. Jan. 10, 2013).

401 Brown v. City of Jacksonville, 711 F.3d 883, 887 (8th Cir. 2013).

402 Id. at 887-888. 

403 Id. at 888 n.5. 

404 Id. 

405 Id. at 888. 

406 NCD, Righting the ADA, at 60-66, 124 (2004), available at 

http://www.ncd.gov/publications/2004/Dec12004#IIIB. 407 Id. at 118-119. 

408 Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). 

409 42 U.S.C. § 12102(2)(A); 42 U.S.C. § 12205a. 

410 “Substantially Limited in Working,” Appendix to Part 1630—Interpretive Guidance on Title I 

of the Americans With Disabilities Act, 29 C.F.R. Pt. 1630, App. (Substantially Limited in 

Working).

411 Id. 

412 NCD, Righting the ADA, at 49-51 (2004), available at 

http://www.ncd.gov/publications/2004/Dec12004#IIIB. 413 “Substantially Limited in Working,” Appendix to Part 1630—Interpretive Guidance on Title I 

of the Americans With Disabilities Act, 29 C.F.R. Pt. 1630, App. (Substantially Limited in 

Working). 

118