NCD

National Council on Disability 

Policy Brief Series: Righting the ADA 

No. 15

The Supreme Court’s Decisions Discussing the “Regarded As”

Prong of the ADA Definition of Disability

May 21, 2003
In addition to persons who have a physical or mental impairment that substantially limits a major 

life activity and persons who have a record of a substantially limiting condition, the Americans 

with Disabilities Act (ADA) also provides protection from discrimination to individuals who are 

"regarded as having such an impairment" (42 U.S.C. § 12102(2)(C)). The "regarded as" prong of 

the definition of disability represents a broad approach that would extend statutory protection to 

anyone who has been excluded or disadvantaged by a covered entity on the basis of a physical or 

mental impairment, whether real or perceived. The Supreme Court has taken a restrictive 

approach to the "regarded as" prong, narrowing its applicability in significant ways. This policy 

brief examines the origin, purpose, and meaning of the "regarded as" component of the definition 

of disability, and the implications of the Court's interpretation and application of it. 

THE ORIGINS OF THE "REGARDED AS" PRONG 

Congress first formulated the three-prong definition of disability in the Rehabilitation Act 

Amendments of 1974. It included: "any person who (i) has a physical or mental impairment 

which substantially limits one or more major life activities, (ii) has a record of such an 

impairment, or (iii) is regarded as having such an impairment.”1

 The Rehabilitation Act of 1973 

had been enacted the previous year with a traditional vocational rehabilitation perspective as to 

what constituted a "handicap," focusing on whether an individual was employable and on 

whether he or she could benefit from vocational rehabilitation services.2 The legislative history 

indicates that Congress found the prior definition "far too narrow and constricting" for the 

broader problems addressed in the innovative Title V of the 1973 Act,3 including Section 504*s 

prohibition of discrimination in all programs and activities receiving federal financial 

assistance.4 The Senate Committee Report accompanying the 1974 Amendments declared that 

the prior definition had proven to be "troublesome" in its application to the affirmative action 

requirement of Section 503 and the nondiscrimination requirement of Section 504, particularly 

due to its focus on employability and vocational rehabilitation services.5 The Senate Committee 

explained that it had devised a new definition "which would provide sufficient latitude (but still 

not be totally open ended), particularly for the nondiscrimination programs carried out under 

sections 501, 503, and 504....”6 

In developing the revised definition, Congress did not simply expand the focus of the definition 

from employment and rehabilitation to include other types of programs and activities; it made 

two other important additions. It established a definition for an actual disability that required a 

substantial limitation on a major life activity, and it added the "record of" and "regarded as" 

components to the definition.7

 By adding the additional two prongs to the definition Congress 

was, as the Supreme Court would later acknowledge, including within the definition persons 

who "may at present have no actual incapacity at all.”8

 The first prong, which is patterned after 

the prior Vocational Rehabilitation eligibility definition, is worded in restrictive terms, while the 

second and third prongs are expansive in scope. This difference derives from the dual purposes 

that Congress framed this definition to serve. The three-prong definition applies to affirmative 

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action efforts required under Sections 501 and 503, to barrier removal efforts under Section 502, 

and to nondiscrimination requirements imposed under Sections 501, 503, and 504. Congress 

wanted a very broad definition for nondiscrimination purposes — to protect people from being 

discriminated against on the basis of "handicap" whether they had any actual impairment or not. 

On the other hand, the objective of affirmative action programs would surely be undermined if 

covered employers could claim success based upon workers whom the employer merely 

"regards" as being a person with a disability. It would be inappropriate to permit an employer to 

claim compliance with affirmative action requirements under Section 501 or Section 503 by 

asserting that it regards employees as impaired. Nor does it make any sense to remove 

architectural and transportation barriers with reference to people with a record of disability or 

only regarded as having a disability. 

The legislative history explicitly describes the purposes of the third prong as linked to the 

nondiscrimination mandates; the Senate Committee explained: 

Clause [iii] in the new definition clarifies the intention to include those persons who are 

discriminated against on the basis of handicap, whether or not they are in fact 

handicapped, just as Title VI of the Civil Rights Act of 1964 prohibits discrimination on 

the ground of race, whether or not the person discriminated against is in fact a member of 

a racial minority. This subsection includes within the protections of sections 503 and 504 

those persons who do not in fact have the condition which they are perceived as having, 

as well as those persons whose mental or physical condition does not substantially limit 

their life activities and who thus are not technically within clause [i] of the new 

definition. Members of both of these groups may be subjected to discrimination on the 

basis of their being handicapped.9 

The Committee went on to clarify that the definition had other applications focused on the more 

restrictive first prong; it contrasted the broad nondiscrimination purpose with the affirmative 

action obligations created in the 1973 Act: 

The new definition applies to section 503, as well as to section 504, in order to avoid 

limiting the affirmative action obligation of a federal contractor to only that class of 

persons who are eligible for vocational rehabilitation services. It should be noted, 

however, that the affirmative action obligation cannot be fulfilled by the expediency of 

hiring or limiting services to persons marginally or previously handicapped or persons 

"regarded as" handicapped.10 

To whatever extent the original phrasing of the definition in the Rehabilitation Act of 1973 

would have restricted Section 504's protection to a select group of people, the second and third 

prongs of the revised definition clearly moved beyond such narrow constraints. The second 

prong includes not only those who once had a disability but no longer do, but also those who 

never really had such a condition but were mistakenly listed or described in someone's records as 

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having had a disability. And the third prong of the revised definition clearly can be invoked by 

anyone who claims that she or he has been "regarded as" having a disability. 

Since 1974, the three-pronged definition has formed the basis of Section 504 analysis, and in 

1990 the Americans with Disabilities Act adopted it as well.11 

REGULATORY INTERPRETATION 

The first regulations implementing Section 504 of the Rehabilitation Act were those of the 

Department of Health, Education, and Welfare (HEW) issued in 1977. Noting that "these 

regulations were drafted with the oversight and approval of Congress,"12 the Supreme Court has 

recognized the preeminent influence of the original HEW regulations as "an important source of 

guidance on the meaning of § 504.”13 Subsequently, the Court has declared that "the ADA must 

be construed to be consistent with regulations issued to implement the Rehabilitation Act," and 

that a specific provision of the ADA "requires us to construe the ADA to grant at least as much 

protection as provided by the regulations implementing the Rehabilitation Act."14 

In its Section 504 regulations, HEW defined the third prong as follows: 

"Is regarded as having an impairment" means (A) has a physical or mental impairment 

that does not substantially limit major life activities but that is treated . . . as constituting 

such a limitation; (B) has a physical or mental impairment that substantially limits major 

life activities only as a result of the attitudes of others toward such impairment; or (C) has 

none of the impairments defined [in the actual impairment paragraph] but is treated . . . as 

having such an impairment.15 

The three elements of this formulation focus on how individuals are treated rather than upon 

technical distinctions about how much impairment makes a person disabled, i.e., it focuses on 

the existence of discrimination, not upon the characteristics of the person upon whom 

discrimination is visited. 

The HEW three-part definition of the "is regarded as" prong was incorporated in Department of 

Justice regulations coordinating Section 504 regulations16 and subsequently in regulations of 

other federal agencies.17 The Senate and House committee reports accompanying the Americans 

with Disabilities Act direct that analysis of the term "individual with handicaps" in the 

Department of Health, Education and Welfare (HEW) Section 504 regulations should be applied 

to the term "disability" in the ADA.18 In 1992, Section 504 was amended to substitute the term 

"disability" for "handicap."19 

The HEW definition of "is regarded as" was adopted in the ADA Title I regulations of the Equal 

Employment Opportunity Commission (EEOC),20 in the ADA Title II and Title III regulations of 

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the Department of Justice,21 and in the Department of Transportation's ADA regulations.22 In its 

interpretive guidance, the EEOC emphasized a "myths, fears and stereotypes" approach to 

showing that a person was regarded as having a disability. The Interpretive Guidance declares: 

"An individual rejected from a job because of the ‘myths, fears and stereotypes’ associated with 

disabilities would be covered under this part of the definition of disability . . . .”23 The EEOC 

considers exclusions based on "common attitudinal barriers" toward individuals with 

disabilities—including "concerns regarding productivity, safety, insurance, liability, attendance, 

cost of accommodation and accessibility, workers* compensation costs, and acceptance by 

coworkers and customers" — to constitute discrimination based on perceptions of disability.24 

And, if an individual with a physical or mental impairment can show that he or she was 

terminated from or not hired for a particular job, and the employer took the exclusionary action 

because of one of the listed concerns, such a showing may be sufficient to establish that the 

individual was “regarded as” having a substantially limiting impairment.25 

THE ARLINE DECISION 

At the time the ADA was enacted, the leading judicial decision applying the second and third 

prongs of the statutory definition of disability was the ruling of the U.S. Supreme Court in 

School Board of Nassau County v. Arline.26 The plaintiff in that case was discharged from her 

job as an elementary public school teacher because she had infectious tuberculosis. When she 

brought a lawsuit alleging that she had been discriminated against in violation of Section 504 of 

the Rehabilitation Act of 1973, the school board defended by arguing that she was not a 

"handicapped person" within the statutory definition.27 

The Supreme Court quoted the words of Senator Hubert Humphrey regarding the overriding goal 

of the 1973 Act: "to share with handicapped Americans the opportunities for an education, 

transportation, housing, health care, and jobs that other Americans take for granted.”28 After 

setting out the three-pronged statutory definition, the Court described its understanding of the 

purposes of this definition: 

The amended definition reflected Congress' concern with protecting the handicapped 

against discrimination stemming not only from simple prejudice, but from "archaic 

attitudes and laws" and from "the fact that the American people are simply unfamiliar 

with and insensitive to the difficulties confront[ing] individuals with handicaps.” To 

combat the effects of erroneous but nevertheless prevalent perceptions about the 

handicapped, Congress expanded the definition of "handicapped individual" so as to 

preclude discrimination against "[a] person who has a record of, or is regarded as having, 

an impairment [but who] may at present have no actual incapacity at all."29 

The Court determined that Arline did have an actual physical impairment — tuberculosis — that 

affected one of the principal body systems — her respiratory system — and that "[t]his 

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impairment was serious enough to require hospitalization, a fact more than sufficient to establish 

that one or more of her major life activities were substantially limited by her impairment.”30 The 

Court thus concluded that Arline*s hospitalization for tuberculosis sufficed to establish that she 

had "a record of . . . impairment" under the second prong of the statutory definition. 

To the school district's argument that this record of impairment was not relevant in the 

circumstances of the case because Arline was dismissed not because of diminished physical 

capabilities or her history of hospitalization, but because of the threat raised by the 

contagiousness of her condition, the Court replied that such a distinction was inconsistent with 

the legislative history of the definition, since "[t]hat history demonstrates that Congress was as 

concerned about the effect of an impairment on others as it was about its effect on the 

individual.”31 In support of this conclusion, the Court particularly examined the third prong of 

the statutory definition: 

Congress extended coverage . . . to those individuals who are simply “regarded as 

having” a physical or mental impairment. The Senate Report provides as an example of a 

person who would be covered under this subsection "a person with some kind of visible 

physical impairment which in fact does not substantially limit that person*s functioning.” 

Such an impairment might not diminish a person*s physical or mental capabilities, but 

could nevertheless substantially limit that person*s ability to work as a result of the 

negative reactions of others to the impairment.32 

The Court emphasized that the "basic purpose of Section 504" was "to ensure that handicapped 

individuals are not denied jobs or other benefits because of the prejudiced attitudes or the 

ignorance of others" and declared that, by enacting the third branch of the definition, 

Congress acknowledged that society*s accumulated myths and fears about disability and 

disease are as handicapping as are the physical limitations that flow from actual 

impairment. . . . The Act is carefully structured to replace such reflexive reactions to 

actual or perceived handicaps with actions based on reasoned and medically sound 

judgments . . .33 

Pursuant to the Arline decision, it is clear that individuals can be included under the third prong 

of the statutory definition of disability solely because of the negative reactions, prejudiced 

attitudes, ignorance, misapprehensions, irrational fears, mythology, or reflexive reactions of 

others, regardless of whether an individual has or does not have a mental or physical impairment 

that satisfies the other prongs of the definition. 

ADA LEGISLATIVE HISTORY 

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In the process of considering and enacting the ADA, Congress gave some insights into its 

understanding of the purpose and effect of the "regarded as" prong. The Senate Committee 

Report declared: 

A person who is excluded from any activity covered under this Act or is otherwise 

discriminated against because of a covered entity*s negative attitudes towards disability 

is being treated as having a disability which affects a major life activity. For example, if a 

public accommodation, such as a restaurant, refused entry to a person with cerebral palsy 

because of that person*s physical appearance, that person would be covered under the 

third prong of the definition. Similarly, if an employer refuses to hire someone because of 

a fear of the "negative reactions" of others to the individual, or because of the employer*s 

perception that the applicant had a disability which prevented that person from working, 

that person would be covered under the third prong.34 

The Senate Committee discussed several other types of situations in which the third prong would 

apply. It declared that "[t]he third prong is particularly important for individuals with stigmatic 

conditions that are viewed as physical impairments but do not in fact result in a substantial 

limitation of a major life activity. For example, severe burn victims often face discrimination.35“ 

The third prong was also intended to serve to "ensure that persons with medical conditions that 

are under control, and that therefore do not currently limit major life activities, are not 

discriminated against on the basis of their medical conditions. For example, individuals with 

controlled diabetes or epilepsy are often denied jobs for which they are qualified. Such denials 

are the result of negative attitudes and misinformation”.36 Other examples cited by the 

Committee included people "rejected for a particular job for which they apply because of a back 

abnormality on an x-ray, notwithstanding the absence of any symptoms," and people "rejected 

for a particular job because they wear hearing aids, even though such people may compensate for 

their hearing impairments by using their aids, speechreading, and a variety of other strategies."37 

The ADA report of the House Committee on Education and Labor discussed fewer examples 

than the Senate Committee, although it did reiterate the example of a person with severe burns, 

but it expressed largely the same overall views of the third prong: "A person who is excluded 

from any basic life activity, or is otherwise discriminated against, because of a covered entity's 

negative attitudes toward that person's impairment is treated as having a disability.”38 The House 

Committee on the Judiciary was quite explicit regarding its understanding of the "regarded as" 

standard. It declared: 

This test is intended to cover persons who are treated by a covered entity as having a 

physical or mental impairment that substantially limits a major life activity. It applies 

whether or not a person has an impairment that substantially limits a major life activity, if 

that person was treated as if he or she had an impairment that substantially limits a major 

life activity.39 

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The Committee reiterated the examples of persons with severe burns and people rejected from 

jobs because a back x-ray reveals some anomaly, even though the person has no symptoms of a 

back impairment.40 It also stressed that: 

a person who is rejected from a job because of the myths, fears, and stereotypes 

associated with disabilities would be covered under this third test, whether or not the 

employer*s perception was shared by others in the field and whether or not the person's 

physical or mental condition would be considered a disability under the first or second 

part of the definition.41 

The Committee added that: 

[i]n the employment context, if a person is disqualified on the basis of an actual or 

perceived physical or mental condition, and the employer can articulate no legitimate 

job-related reason for the rejection, a perceived concern about employing persons with 

disabilities could be inferred and the plaintiff would qualify for coverage under the 

"regarded as" test.42 

The chief sponsor of the ADA in the House — Representative Steny Hoyer — expressed similar 

views in his floor statement during debates on the bill when he declared that the third prong of 

the definition focuses on discriminatory treatment of an individual "whether or not the person 

had an impairment that actually limited participation.”43 These various expressions of 

congressional intent articulate a consistent congressional intention that the focus of the third 

prong was to center on how an individual is treated, and, if a person is excluded or otherwise 

treated discriminatorily because of a real or perceived impairment, the person should be 

protected by the ADA under the "regarded as" prong of the definition. 

THE SUPREME COURT'S ADA DECISIONS AND THE "REGARDED AS" PRONG 

As discussed in a previous section of this policy brief, the Supreme Court had discussed the third 

prong of the definition of disability quite extensively and in expansive terms in its decision in the 

Arline case under the Rehabilitation Act of 1973. However, it was not until 1999 that the Court 

considered the application of the third prong under the ADA. In Sutton v. United Airlines, 527 

U.S. 471, 489 (1999), the Court recognized that under the third prong of the definition of 

disability "individuals who are `regarded as' having a disability are disabled within the meaning 

of the ADA.” Having recognized the "regarded as" prong of the statutory definition, the Court 

ruled, however, that the plaintiffs in the Sutton case were not "regarded as" having a substantial 

limitation on the major life activity of working. En route to this decision, the Court made three 

principal rulings affecting the interpretation of the "regarded as" prong of the definition of 

disability. First, the Court ruled that a person whose impairment is addressed satisfactorily by 

mitigating measures, but is nonetheless excluded from an activity covered by the ADA because 

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of the person's underlying impairment, has neither an actual disability nor has been regarded as 

having a disability. The Court's problematic rulings regarding "mitigating measures" are 

discussed in some detail in another policy brief in the National Council on Disability’s (NCD) 

Righting the ADA series; see 

http://www.ncd.gov/newsroom/publications/mitigatingmeasures.html. 

Second, the Court ruled in Sutton that a person has not been regarded as being substantially 

limited in the major life activity of working unless the person can demonstrate that the employer 

considered her or him as being unable to perform either a class of jobs or a broad range of jobs in 

various classes.44 The Court's restrictive rulings regarding proving a substantial limitation in 

working are discussed in another policy brief in NCD’s Righting the ADA series; see 

http://www.ncd.gov/newsroom/publications/limitation.html. 

Third, the Court characterized the third prong in terms that are more narrow than it had 

traditionally been defined. In Sutton, the Supreme Court declared: 

There are two apparent ways in which individuals may fall within this statutory 

definition: (1) a covered entity mistakenly believes that a person has a physical 

impairment that substantially limits one or more major life activities, or (2) a covered 

entity mistakenly believes that an actual, nonlimiting impairment substantially limits one 

or more major life activities. In both cases, it is necessary that a covered entity entertain 

misperceptions about the individual – it must believe either that one has a substantially 

limiting impairment that one does not have or that one has a substantially limiting 

impairment when, in fact, the impairment is not so limiting.45 

This statement should be contrasted with the definition of the third prong in the ADA regulations 

and Section 504 regulations: 

"Is regarded as having an impairment" means (1) has a physical or mental impairment 

that does not substantially limit major life activities but that is treated . . . as constituting 

such a limitation; (2) has a physical or mental impairment that substantially limits major 

life activities only as a result of the attitudes of others toward such impairment; or (3) has 

none of the impairments defined [in the actual impairment paragraph] but is treated . . . as 

having such an impairment.46 

The three elements of the latter formulation all focus on how individuals are treated by covered 

entities. The description of the third prong in Sutton, on the other hand, focuses on a mistaken 

belief or "misperceptions" by a covered entity. The difference between these two formulations, 

while perhaps appearing to be a subtle one, actually is quite dramatic. The Sutton description 

calls for a showing of something in the mental state of a covered entity — a belief or perception. 

In addition, it is necessary to show that the belief or perception is wrong. Proving what an 

employer, state or local government agency, or the operator of a private business believes, 

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thinks, or perceives is a difficult proposition. Unless the covered entity makes the mistake of 

articulating the depths of its prejudices or the exact nature of its motivation, it will be difficult to 

produce evidence of its state of mind. 

If, for example, a private company or a state or local government agency that offers tours of 

wilderness areas has a policy that excludes from its tours anyone who has diabetes or uses 

hearing aids, people whose diabetes is controlled by medication or for whom hearing aids 

successfully mitigate hearing loss would be hard pressed to challenge their exclusion under the 

ADA if the Sutton framework is applied. Such persons would not have an actual disability 

because their conditions do not substantially limit their major life activities in their mitigated 

state. Trying to prove that the covered entity had a mistaken belief or a misperception about their 

condition would be quite troublesome unless the covered entity explained the rationale behind its 

policy. Absent such a disclosure, the excluded person would be left to speculate about the belief 

or perception behind the policy. Does the tour service think that hearing aids might fall out and 

cause a safety risk at some precarious point in the tour? Does the service have a perception that 

the altitude, temperature conditions, or strenuousness of the tour might cause elevations or 

depression of blood sugar levels for individuals with diabetes, thus thwarting the controlling 

effects of medication? Are the tour operators concerned that other customers will be 

uncomfortable around people with such conditions? Is the tour service under a prejudiced 

misconception that people who have diabetes or use hearing aids have reduced intelligence? Do 

they consider that such people are genetically inferior and should not be allowed to participate in 

normal social endeavors? Do they have the misperception that participation by such people will 

increase insurance costs? Are they acting under the ridiculous impression that these conditions 

are contagious? These somewhat extreme examples of potential rationales serve to demonstrate 

that if a covered entity remains silent about its motivation, proving what it believed or perceived 

about a condition will often be nearly impossible. 

If an ADA claimant seeks to demonstrate that an employer regarded her or him as substantially 

limited in regard to the activity of working, the task becomes even more difficult, because, in 

addition to demonstrating what the employer was thinking, the claimant must be able to show 

that the employer's belief about the worker's inability to perform jobs extended to a class or 

broad range of jobs. So as long as the employer maintains that it merely regarded the worker as 

unable to perform only the particular job at issue, the worker will have great difficulty meeting 

the necessary burden of proof. Indeed, this approach virtually eliminates the chance to assert 

most "failure-to-hire" claims; rejected applicants’ claims that they were unfairly excluded by 

medical screening or other discriminatory mechanisms despite their actual ability to perform the 

job will fail, so long as employers are able to convince courts that they only regarded the 

applicant as unable to perform a single job. 

The situation under the regulatory language, which focuses on whether one was "treated as" 

having a substantially limiting condition, is considerably different. By interpreting "regarded as" 

as equivalent to being "treated as," the formulation in the regulations removes the extremely 

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subjective element of what was in the mind of the covered entity and instead looks at how the 

individual was treated by the covered entity. What does it mean to be "treated as having" a 

substantially limited impairment? The answer is that a covered entity treats a person as being 

substantially limited when it excludes or disadvantages the person because of an actual or 

purported condition. The Senate Committee that approved the ADA summarized the effect of the 

third prong very aptly, when it declared "[a] person who is excluded from any activity covered 

under this Act or is otherwise discriminated against because of a covered entity*s negative 

attitudes towards disability is being treated as having a disability which affects a major life 

activity.”47 Under this interpretation, whenever a covered entity excludes or takes action to treat 

a person worse than it otherwise would because of some physical or mental condition the person 

has or is believed to have, then the covered entity has treated the person as having a substantially 

limiting impairment. In such circumstances the person has been "regarded as" having a 

disability, and it should not matter whether the person actually has the condition, or whether the 

condition does or does not otherwise actually result in a substantial limitation of a major life 

activity. If a covered entity treats the person as having a substantially limiting condition, that 

should be sufficient to establish disability under the third prong. 

The Supreme Court offered no support or justification for deviating from the language of the 

regulations and the clearly expressed intent of Congress, to arrive at its narrow reading of the 

basic thrust of the third prong in the Sutton decision. It may be that the Court did not intend the 

two circumstances it discussed — both involving mistaken beliefs by a covered entity — to 

describe the full scope of the third prong. After all, the Court prefaced this discussion by saying 

that "[t]here are two apparent ways in which individuals may fall within this statutory definition 

....”48 Perhaps it was leaving open the possibility that there are other, less apparent ways of 

proving that one is regarded as having a disability. Such speculation, however, does not refute 

the fact that the Court's discussion can easily be read more definitively and, coupled with the 

Court's other restrictive interpretations of the third prong in Sutton, poses a significant threat to 

the breadth of the third prong. The lower courts had generally not accorded the third prong of the 

definition the broad scope the regulatory language calls for;49 the Sutton ruling accelerated this 

tendency. Subsequent to the issue of the decision in Sutton, both the EEOC and the Department 

of Justice reported that they were less likely to pursue certain cases involving claims that a 

person had been regarded as having a disability.50 The EEOC reported that while it had always 

been reserved in its use of the third prong, after Sutton, "we tend to rely on the theory even less, 

in part because of the proof element that the employer must regard the individual as being 

substantially limited in a major life activity, and evidence of this perception is difficult to 

obtain.”51 It certainly is easier to marshal evidence of how one was treated by a covered entity 

than to demonstrate that the covered entity had a particular "mistaken belief" or "misperception" 

that fueled its actions. 

CONCLUSION 

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The "regarded as" prong of the definition of disability was established in 1974. It was conceived 

as an extremely broad element of the definition that would extend statutory protection to anyone 

who had been excluded or disadvantaged by a covered entity on the basis of a physical or mental 

impairment, whether real or perceived. Such a broad interpretation was embraced in Section 504 

regulations and validated by the Supreme Court in its decision in School Board of Nassau 

County v. Arline. Subsequently, ADA Committee reports endorsed the broad interpretation of 

being regarded as having a disability and this approach was codified in ADA regulations. In its 

decision in Sutton v. United Airlines, however, the Supreme Court disregarded the expansive 

view of the third prong and took a restrictive approach to its interpretation. Specifically, the 

Court has narrowed the scope of the "regarded as" prong by (1) the Court's rulings on mitigating 

measures, (2) its requirement that proving one was regarded as substantially limited in working 

must involve a showing that the employer considered the person as unable to perform either a 

class of jobs or a broad range of jobs in various classes, and (3) by redirecting the focus from 

whether the covered entity treated the person as having a substantially limiting condition to 

whether the covered entity was motivated by certain kinds of mistaken beliefs or misperceptions 

— a notoriously hard thing to prove. The result is that the Supreme Court has greatly restricted 

the applicability of the "regarded as" prong and has significantly impeded the ability of many 

plaintiffs to challenge the discrimination they have encountered. 

This policy brief was written for the National Council on Disability by Professor Robert L. 

Burgdorf Jr. of the University of the District of Columbia, David A. Clarke School of Law. 

ENDNOTES 

1. Pub. L. No. 93-516, § 111(a)(6), 89 Stat. 2–5 (1974) (codified


at 29 U.S.C. § 706(8)(B)).


2. In the 1973 Act, the term "handicapped individual" was defined


as:


any individual who (i) has a physical or mental disability


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which for such individual constitutes or results in a


substantial handicap to employment and (ii) can reasonably


be expected to benefit in terms of employability from


vocational rehabilitation services provided pursuant to


subchapters I and III of this chapter.


Pub. L. No. 93-112, §7(6), 87 Stat. 361 (1973).


Even after the 1974 amendments, this definition was retained as


the criterion for eligibility for vocational rehabilitation


services. 29 U.S.C. § 706(8)(A).


3. S. REP. NO. 93-1297 (1974), reprinted in 1974 U.S.C.C.A.N.


6373, 6413.


4. 29 U.S.C. § 794.


5. S. REP. NO. 93-1297 (1974), reprinted in 1974 U.S.C.C.A.N.


6373, 6388.


6. S. REP. NO. 93-1297 (1974), reprinted in 1974 U.S.C.C.A.N.


6373, 6413.


7. Pub.L.No. 93-516, § 111(a), 88 Stat. 1619 (1974).


8. Southeastern Community College v. Davis, 442 U.S. 397, 405-06


n. 6 (1979).


9. S. REP. NO. 93-1297, (1974), reprinted in 1974 U.S.C.C.A.N.


6373, 6389-90. See also 120 Cong. Rec. 30531 (1974) (statement of


Sen Cranston).


10. Id. at 6390.


11. 42 U.S.C. § 12102(2) provides:


The term "disability" means, with respect to an individual— 


(A) a physical or mental impairment that substantially


limits one or more of the major life activities of such


individual;


(B) a record of such an impairment; or


(C) being regarded as having such an impairment.


12. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 279


(1987) (citing Consolidated Rail Corp. v. Darrone, 465 U.S. 624,


634-35, & nn. 14-16 (1984)).


13. Alexander v. Choate, 469 U.S. 287, 304 n. 24 (1985); School


Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987).


14. Bragdon v. Abbott, 524 U.S. 624, 638, 632-33 (1998) (citing 

42 U.S.C. § 12201(a)). 

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15. 45 C.F.R. § 84.3(j)(2)(iv) (quoted verbatim in H.R. REP. NO.
 485, 101st Cong., 2d Sess. pt. 3, at 29 (1990) (House Committee


on the Judiciary).


16. 28 C.F.R. § 41.31(b)(4).


17. See, e.g., 29 C.F.R. § 32.3 (Dep't of Labor); 15 C.F.R. §


8b.3(g)(3)(iv) (Dep't of Commerce). In 1976, during the period


when the HEW regulations were still in proposed form, the


Department of Labor issued its Section 503 regulations, making


these the first final regulations that were promulgated under the


three-pronged definition of disability. Appended to the Section


503 regulations are "Guidelines on the Application of the


Definition "Handicapped Individual" which provide that the "is


regarded as having such an impairment" prong includes individuals


who, "because of attitudes or any other reason," are "perceived"


as having a disability, "whether an impairment exists or not." 41


C.F.R. pt. 60-741 app. A (1995).


18. S. REP. NO. 101-116, 21 (1989); H.R. REP. NO. 101-485, pt. 2,


at 50 (1990) (Committee on Education and Labor); H.R. REP. NO.


101-485, pt. 3, at 27 (1990) (Committee on the Judiciary).


19. Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569,


§§ 102 (f)(1)(A), (f)(2)(B), (f)(3), (P), 106 Stat. 4344, 4348,


4349, 4356-58 (1992).


20. 29 C.F.R. §1630.2(l).


21. 28 C.F.R. § 35.104(4); 28 C.F.R. § 36.104(4).


22. 49 C.F.R. § 37.3(4).


23. 29 C.F.R. pt. 1630, app. (commentary on §1630.2(l)).


24. Id.


25. Id. (unless employer can articulate nondiscriminatory reason


for the employment action in such a situation, "an inference that


the employer is acting on the basis of `myth, fear or stereotype'


can be drawn").


26. 480 U.S. 273, reh*g denied, 481 U.S. 1024 (1987), on remand, 

692 F. Supp. 1286 (M.D.Fla. 1988). 

27. 480 U.S. at 277.


28. Id.


The Americans with 

Disabilities Act Policy Brief 

14 Series: Righting the ADA 
29. Id. at 279 (brackets in original) (quoting S. REP. NO. 93-


1297, 50 (1974), reprinted in 1974 U.S.C.C.A.N. 6400, and


Southeastern Community College v. Davis, 442 U.S. 397, 405–06


(1979)).


30. 480 U.S. at 281.


31. Id. at 282.


32. Id. at 282–83 (quoting S. REP. NO. 93-1297, 64 (1974)).


33. Id. at 284–85.


34. S. REP. NO. 101-116, 24 (1989), citing Thornhill v. Marsh, 866


F.2d 1182 (9th Cir. 1989) and Doe v. Centinela Hospital, No.


CV87-2514 PAR, 57 U.S.L.W. 2034, 1988 WL 81776 (C.D. Cal. June


30, 1988).


35. S. REP. NO. 101-116, 24 (1989).


36. Id.


37. Id.


38. H.R. REP. NO. 101-485, pt. 2, at 53 (1990) (Committee on


Education and Labor).


39. H.R. REP. NO. 101-485, pt. 3, at 29 (1990) (Committee on the


Judiciary).


40. Id. at 30-31.


41. Id. at 30.


42. Id. at 30-31.


43. 136 CONG. REC. E1914 (daily ed. June 13, 1990) (statement of


Rep. Hoyer of May 22, 1990).


44. 527 U.S. at 493-94.


45. 527 U.S. at 489.


46. 29 C.F.R. § 1630.2(l) (ADA Title I regulations of EEOC); 28


C.F.R. § 35.104(4) (DOJ ADA Title II regulations); 28 C.F.R. §


36.104(4) (DOJ ADA Title III regulations); 49 C.F.R. § 37.3(4)


(Department of Transportation's ADA regulations); 45 C.F.R. §


84.3(j)(2)(iv) (HHS (originally HEW) Section 504 regulations); 28


C.F.R. § 41.31(b)(4) (DOJ Section 504 coordination regulations).


The Americans with 

Disabilities Act Policy Brief 

15 Series: Righting the ADA 
See also, e.g., 29 C.F.R. § 32.3 (Dep't of Labor Section 504


regulations); 15 C.F.R. § 8b.3(g)(3)(iv) (Dep't of Commerce


Section 504 regulations); H.R. REP. NO. 101-485, pt. 3, at 29


(1990) (House Committee on the Judiciary ADA report) (quoting HHS


definition verbatim).


47. S. REP. NO. 101-116, 24 (1989). See also H.R. REP. NO. 101-485,


pt. 2, at 53 (1990) (Committee on Education and Labor) ("A person


who is excluded from any basic life activity, or is otherwise


discriminated against, because of a covered entity's negative


attitudes toward that person's impairment is treated as having a


disability.").


48. 527 U.S. at 489.


49. In Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 199 (1st


Cir. 1999), for example, the Court of Appeals for the First


Circuit ruled that the scope of protection afforded under the


third prong of the ADA definition of disability could not extend


to conditions not covered under the first prong, even if the


discriminatory actions at issue were fueled by "stereotyping,"


"myth," or "unwarranted assumptions" about the person's


impairment.


50. See Sharon Perley Masling, The Impact of the Supreme Court's


ADA Decisions on the Rights of Persons With Disabilities


(http://www.ncd.gov/newsroom/publications/decisionsimpact.html)


text accompanying nn. 67-69 (February 25, 2003), quoting


Correspondence from The Equal Employment Opportunity Commission


to Sharon Masling, December 6, 2002 (on file with the author);


and E-mail correspondence from the U.S. Department of Justice to


Sharon Masling, December 5, 2002 (on file with the author). See


also, http://www.eeoc.gov/stats/ada-charges.html;


http://www.eeoc.gov/press/2-6-03.html.


51. See Sharon Perley Masling, The Impact of the Supreme Court's


ADA Decisions on the Rights of Persons With Disabilities


(http://www.ncd.gov/newsroom/publications/decisionsimpact.html)


text accompanying n. 69 (February 25, 2003), quoting


Correspondence from The Equal Employment Opportunity Commission


to Sharon Masling, December 6, 2002 (on file with the author).


See also, http://www.eeoc.gov/stats/ada-charges.html;


http://www.eeoc.gov/press/2-6-03.html.


The Americans with 

Disabilities Act Policy Brief 

16 Series: Righting the ADA