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. e du/thir dc ir c uit_1997/204Filed August 25, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96

- 7174

STACY L. DEANE,

Appellant

v.

POCONO MEDICAL CENTER,

Appellee

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. Action No. 94

- 1139)

Argued

January 31, 1997

Before: BECKER and ROTH, Circuit Judges,

and BARRY, District Judge*

(Filed August 25, 1997)

_________________________________________________________________ * Honorable Maryanne Tru mp Barry of the United States District Court

for the District of New Jersey, sitting by designation.

GALFAND BERGER, LURIE,

BRIGHAM, JACOBS, SWAN,

JUREWICZ & JENSEN, LTD.

BY: DEBRA A. JENSEN, ESQUIRE

[Argued]

DANIEL BENCIVENGA,

ESQUIRE

Suite 2300, 1818 Market Street

Philadelphia, PA. 19103

- 3623

Attorneys for Appellant

Stacy L. Deane

POST & SCHELL, P.C.

BY: SIDNEY R. STEINBERG,

ESQUIRE [ Argued]

1800 JFK Boulevard, 19th Floor

Philadelphia, PA 19103

Attorneys for appellee Pocono

Medical CenterOPINION OF THE COURT

BARRY, District Judge

In recognition of the fact that discrimination against the

physi cally and mentally disabled was a "serious and

pervasive social problem," Congress, in 1990, enacted the

Americans with Disabilities Act ("ADA" or "Act") in order to

level the playing field for disabled individuals in the

workplace. Toward this end, Co ngress extended the

provisions of the ADA not only to those who are actually

disabled, but also to individuals wrongly regarded as being

disabled. Unfortunately, however, the extent to which

individuals who are merely "regarded as" disabled are

entitl ed to be treated as though they are actually disabled

was left far from clear. We decide today an important issue

of first impression in this circuit

-- where, as here, an

individual is "regarded as" being disabled but is not, in fact,

disabled, the AD A does not entitle that individual to

accommodation in the workplace.

2

I.

Appellant Stacy L. Deane, a former employee of appellee

Pocono Medical Center ("PMC"), filed a complaint which

alleged that PMC termi nated her employment in violation of

the ADA, 42 U.S.C. SS 12101 et seq.; the Rehabilitation Act

of 1973, 29 U.S.C. SS 701 et seq.; and the Pennsylvania

Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann.

SS 951 et seq.1 The district court granted su mmary

judgment in favor of PMC, and Deane has appealed. For the

reasons that follow, we affirm.

II.

In April 1990, PMC hired Deane as a registered nurse to

work primarily on the medical/surgical floor of the medical

center. On June 22, 1991, whil e all the nurses on the

medical/surgical floor, with the exception of Deane and one

other nurse, were at lunch, Deane responded to an

emergency situation in a patient's room. Upon entering the

room, Deane discovered an elderly male patient who had

som ehow removed all but one of his restraints and was

hanging off his bed between the side rails. Because the

patient was in danger of falling farther and pulling the

intravenous line out of his neck, Deane lifted him back into

his bed. As she was about t o replace the last restraint, the

patient grabbed her right wrist, twisting it counterclockwise

and causing the injury which culminated in this case. Thatinjury

-- a sprained right wrist and cartilage tear in the

wrist

-- caused her to miss approximat ely a year of work.

In June 1992, Deane and Barbara Manges, a nurse

assigned to Deane's workers' compensation case,

telephoned PMC and advised Charlene McCool, PMC's

_________________________________________________________________

1. Although we will address only Deane's ADA claim, the only claim

raised on appeal, our analysis applies equally to Deane's Rehabilitation

Act and PHRA claims. See Kelly v. Drexel University, 94 F.3d 102, 105

(3d Cir. 1996) (holding that the district court properly t reated the

plaintiff's PHRA claims as coextensive with his ADA claim); McDonald v.

Dep't of Public Welfare, 62 F.3d 92, 94 (3d Cir. 1995) (holding that,

whether an action is brought under the ADA or the Rehabilitation Act,

the substantive standards are the same). Neither party disputes this on

appeal.

3

Benefits Coordinator, of Deane's intent to return to work

with certain restrictions. According to Deane, she informed

McCool that she was unable to lift more than 15

- 20 pounds

or perform repetitive manual tasks, such as typing, but

that her physician, Dr. Osterman, had released her to

return to "light duty" work.2 Deane further explained to

McCool that, if she could not be accommodated in a light

duty posi tion on the medical/surgical floor, she was willing

to move to another area of the hospital, as long as she

could remain in nursing.3

After speaking with Deane and Manges, McCool advised

Barbara Hann, PMC's Vice President of Human Resources,

_______

__________________________________________________________

2. In a letter dated June 8, 1992, the contents of which were

communicated by Deane and Manges to McCool during their telephone

conversation, Dr. Osterman opined as follows:

I do not think [Deane] can return to unrestricted nursing i.e. I

would

place a lifting limit of 20 pounds and a limit on unrestricted

repetitive motion of her wrist. She does believe that she can

return

to some nursing and I would agree wit h this. She has suggested

pediatric nursing, neonatal nursing and possibly even the cancer

unit at the hospital which apparently does not involve lifting the

patients. All would be acceptable.

Another of Deane's physicians, Dr. S ipowicz, evaluated Deane

approximately one week after Dr. Osterman's examination. His notes

from June 16, 1992 reveal the following conclusions:It is my professional opinion that Ms. Deane is permanently

disabled from heavy activity an d that she not have a position

requiring lifting greater than 20 pounds, or that on a rare

- or

occasional basis, or any repetitive lifting using her right upper

extremity. Ms. Deane is seeking employment in a neo

- natal and/or

oncology unit. This is quite all right with us. She is a registered

nurse. She certainly is employable. If those positions become

available, I feel that she should, indeed, take them. But regular

floor

nursing is, in my profession al opinion, out of the question now and

in the future. I feel that she is permanently disabled.

3. This telephone call was PMC's only interaction with Deane during

which it could have assessed the severity of or possible accommodation

for her injuries. PMC never requested additional information from Deane

or her physicians. According to Deane, however, she subsequently

attempted to contact PMC on several occasions and, at least once, was

treated rudely by McCool and told not to call again.

4

of Deane's request to return to work, her attendant work

restrictions, and her stated need for accommodation.

Shortly after considering the information conveyed by

McCool and after comparing it to the job descr iption of a

medical/surgical nurse at PMC, Hann determined that

Deane was unable to return to her previous position. Hann

then asked Carol Clarke, PMC's Vice President of Nursing,

and Susan Stine, PMC's Director of Nursing

Resources/Patient Care Servi ces, to review Deane's request

to return to PMC and explore possible accommodations for

her. Both Clarke and Stine concluded that Deane could not

be accommodated in her previous job as a nurse on the

medical/surgical floor or in any other available pos ition at

the hospital. Finally, Hann asked Marie Werkheiser, PMC's

Nurse Recruiter, whether there were any current or

prospective job openings for registered nurses at PMC.

According to Werkheiser, there were no such openings at

that time.

As a res ult of the collective determination that Deane

could not be accommodated in her previous job or in any

other available position in the hospital, PMC sent Deane an

"exit interview" form on August 7, 1992. On August 10,

1992, Hann notified Deane by telep hone that she could not

return to work because of her "handicap," and this

litigation ensued.4

Deane argued before the district court that she was both

actually disabled as a result of her injury and that she was

perceived to be so by PMC. On summar y judgment, thecourt rejected both theories and held that Deane was

neither disabled nor regarded by her employer as being

disabled and that, even if she were, she failed to meet the

statutory definition of a qualified individual with a

disability. D eane has not appealed the district court's

determination that she was not actually disabled. Indeed,

she now concedes that "[i]n light of the decisional trends in

this Circuit and others," she is not now and never was

__________________________________ _______________________________

4. In March 1993, Deane accepted a registered nurse position at a non

acute care facility, where she remained until May 1993. Deane has been

employed by a different non

- acute care facility since July 1993. These

posit ions do not require heavy lifting, bathing patients, or the like.

5

disabled and, consequently, that, but for PMC's erroneous

perception of her actual impairment, she would have no

claim under the ADA.

What is left for us, then, are Deane's contentions that

she was disabled under the terms of the ADA by virtue of

the fact that PMC regarded her limitations as being far

worse than they actually were, that PMC failed to

accommodate her lifting restriction, and that she was

eventually terminated on account of PMC's perception that

she was disabled. In support of her perception claim, Deane

relies on a so

- called "laundry list" of PMC's allegedly

erroneous perceptions. According to Deane, PMC believed

that sh e was unable to lift more than ten pounds, push or

pull anything, assist patients in emergency situations,

move or assist patients in the activities of daily living,

perform any patient care job at PMC or any other hospital,

perform CPR, use the rest o f her body to assist patients,

work with psychiatric patients, or use medical equipment.5

Deane refutes each of these perceptions

-- or, in her view,

misperceptions

-- and contends that her injury was, in

fact, minor in nature.6 Deane further contends that PMC

should be held responsible for these misperceptions

because they were the result of PMC's "snap judgment"

arrived at without analyzing, investigating or assessing, in

good faith, the nature of her injury.

Finally, notwithstanding Deane's co ntention that her

impairment was minor, Deane has maintained throughout

the course of this litigation, and continues to maintain on

appeal, that she requires and is entitled to accommodation

for her lifting restriction.7 In this regard, Deane contends

_________________________________________________________________

5. With the exception of certain alleged misperceptions that are not evenarguably borne out by the record, such as Deane's inability to open file

drawers or operate housekeeping equip ment, we accept, as we must,

Deane's description of PMC's misperceptions.

6. Given that Deane vigorously maintained before the district court that

she was actually disabled and has only now shifted her sole focus to her

perception claim, Deane's posi tion in this regard is somewhat

disingenuous.

7. Aside from a few scattered references in her briefs on appeal and at

oral argument suggesting that she could have performed the lifting

6

that she could be acco mmodated either in her previous

position as a nurse on the medical/surgical floor or

through reassignment to another position that would not

require heavy lifting. As to the former, Deane has, from the

outset, suggested the following accommodations: (1 ) the use

of an assistant to help her move or lift patients; (2) the

implementation of a functional nursing approach, in which

nurses would perform only certain types of nursing tasks;

and (3) the use of a Hoyer lift to move or lift patients. With

res pect to the latter, Deane maintains that she could have

been transferred to another unit within the medical center

such as the pediatrics, oncology, or nursery units, which

would not have required heavy lifting.

III.

We have appellate jurisdiction over the district court's

grant of summary judgment pursuant to 28 U.S.C. S 1291.

Because our standard of review is plenary, Kelly v. Drexel

University, 94 F.3d 102, 104 (3d Cir. 1996), we apply the

____________________________________________________ _____________

required of a nurse on the medical/surgical floor with no

accommodation, Deane's main argument on appeal is that

accommodation was wrongly withheld. Indeed, the bulk of her

submissions to this court focuses on the argument that had PMC

engaged in interactive communications with her, it would have realized

that her impairments could have been easily accommodated. Deane

never informed PMC that she could have performed the required lifting

without accommodation and the record is entirel y bereft of any evidence

that she could have performed without accommodation at the time of her

termination. More importantly, Deane argued to the district court that

she could have been accommodated through job restructuring or

reassignment and never once contended in her brief in opposition to

PMC's motion for summary judgment that no accommodation was

necessary. Accordingly, Deane will not be allowed to transform the

nature of this case, yet again, by relying on arguments raised for the

first tim e on appeal.Deane's alternative argument in this regard is that she can perform

the essential functions of her previous job without accommodation

because, according to Deane, lifting is not an essential function of

nursing. As discussed below, this position is not only factually

untenable, but is legally irrelevant.

7

same test the district court should have applied in the first

instance. Olson v. General Electric Astrospace, 101 F.3d

947, 951 (3d Cir. 199 6); Helen L. v. DiDario, 46 F.3d 325,

329 (3d Cir. 1995). We must determine, therefore, whether

the record, when viewed in the light most favorable to

Deane, shows that there is no genuine issue of material fact

and that PMC was entitled to summary jud gment as a

matter of law. See, e.g., Olson , 101 F.3d at 951; Celotex

Corp. v. Catrett, 477 U.S. 317, 322

- 23 (1986); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249

- 50 (1986).

IV.

Congress enacted the ADA in 1990 in an effort to remove

societa l barriers that historically have prevented disabled

individuals "from enjoying the same employment

opportunities that are available to persons without

disabilities."8 29 C.F.R. App. S 1630, Background. Despite

Congress's stated purpose of providing " clear, strong,

consistent, enforceable standards," 42 U.S.C. S 12101(b)(2),

however, the statutory language does not well serve that

end. See Note, The Americans With Disabilities Act: Great

Progress, Greater Potential, 109 Harv. L. Rev. 1602, 1615

(1 996) ("One of the Act's major problems is its vagueness.

Many of the statute's terms are ambiguous, leaving

employers and disabled individuals uncertain about their

rights and responsibilities and requiring costly litigation to

________________________ _________________________________________

8. The ADA, itself, provides the following statement of purposes:

(1) to provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with

disabi lities;

(2) to provide clear, strong, consistent, enforceable standards

addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in

enforcing the sta ndards established in this chapter on behalf of

individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including thepower to enforce the fourteenth amendment and to regulate

commerce, in or der to address the major areas of discrimination

faced day

- to

- day by people with disabilities.

42 U.S.C. S 12101(b).

8

resolve the uncertainties."). As a result, courts have been

left to determine, with little legislative history to assist

them, the meaning and application of vague terms and

concepts through a fact

- sensitive, case

- by

- case inquiry. We

do not mean to suggest, however, that Congress is

necessarily to be faulted for its lack of specifici ty, as the

capabilities of disabled persons and the manifestations of

their disabilities are often as diverse and unique as are the

individuals themselves. Nevertheless, the use of vague and

general standards rather than strict guidelines

-- particula rly with respect to what constitutes a disability, a

qualified individual, and reasonable accommodation

-- has

permitted inconsistent if not absurd judgments and favored

those with easily accommodated disabilities or minor

impairments, rather than thos e with serious disabilities

who seek nothing more than the equal employment

opportunities to which they are entitled. Id.

The core antidiscrimination section of the ADA provides

that:

No covered entity shall discriminate against a qualifie d

individual with a disability because of the disability of

such individual in regard to job application procedures,

the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms,

conditions, and privileges of employment.

42 U.S.C. S 12112 (emphasis supplied). Thus, in order to

make out a prima facie case under the ADA, a plaintiff

must be able to establish that he or she (1) has a

"disability," (2) is a "qualified indi vidual," and (3) has

suffered an adverse employment action because of a

disability. See, e.g., Turco v. Hoechst Celanese Corp., 101

F.3d 1090, 1092 (5th Cir. 1996) (citing Rizzo v. Children's

World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir.

19 96)); Benson v. Northwest Airlines, Inc., 62 F.3d 1108,

1112 (8th Cir. 1995) (citing Wooten v. Farmland Foods, 58

F.3d 382, 385 (8th Cir. 1995)). The August 10, 1992 call

from Ms. Hann terminating Deane because of her

"handicap" is uncontroverted direc t evidence that Deane

suffered an adverse employment action because of her

employer's perception of her disability. Deane has,

therefore, established the third element of her prima facie9

case and that element will not be discussed in further detail.9

See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th

Cir. 1997) ("When an employer concededly discharges an

employee because of a disability, the employee need prove

nothing more to meet the third prong o f the prima facie

test").

A.

Mirroring the elements of the prima facie case, the first

step in deciding any ADA claim is to determine whether the

plaintiff is disabled under the terms of the Act. The ADA

defines a "disability" as:

(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.

42 U.S.C. S 12102(2); 29 C.F.R. 1630.2(g). 10

Because, on appeal, Deane concedes that she is not

actually disabled, but that she was only "regarded as" being

disabled, we direct our focus to the third tier of the

statutory definition. Read in conjunction with t hefirst tier

of the definition, defining an actual disability, the third tier

requires us to determine whether PMC regarded Deane as

having an impairment and whether the impairment, as

perceived by PMC, would have substantially limited one or

________ _________________________________________________________

9. Likewise, because of this direct evidence, there is no need to analyze

Deane's claims under the McDonnell Douglas burden shifting framework.

See Torre v. Casio, Inc., 42 F.3d 825, 829 n.3 (3 d Cir. 1994) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

10. Because the ADA does not define many of the pertinent terms,

phrases, or concepts, we are guided by the Regulations issued by the

Equal Employment Opportunity Commission ("EEOC") to implement Title

I of the Act. See 42 U.S.C. S 12116 (requiring the EEOC to implement

said Regulations); 29 C.F.R. S 1630.2. Regulations such as these are

entitled to substantial deference. See Chevron, U.S.A., Inc. v. Natural

Resources Def ense Council, Inc., 467 U.S. 837, 844 (1984); Blum v.

Bacon, 457 U.S. 132, 141 (1982); Helen L., 46 F.3d at 331

- 32.

10more of Deane's major life activities. Deane's actual

impairment, therefore, is of no consequ ence to our analysis.

Parenthetically, it initially may seem odd that Congress

chose to extend the protections of the Americans with

Disabilities Act to individuals who have no actual disability.

The primary motivation for the inclusion of perceptions or,

more appropriately, misperceptions, of disabilities in the

statutory definition, however, was that "society's

accumulated myths and fears about disability and diseases

are as handicapping as are the physical limitations that

flow from actual impai rment."11 See 29 C.F.R. App.

_________________________________________________________________

11. The limited legislative history makes clear that Congress's primary

concern in enacting the "regarded as" prong of the ADA was for

individuals with no limitations but who, because of some non

- limiting

impairment, are prevented from obtaining employment as a result of

society's myths, fears and prejudices. As the final House Report

provides,

The rationale for this third test [the "regarded a s" prong] as

used

in the Rehabilitation Act of 1973, was articulated by the Supreme

Court in School Board of Nassau County v. Arline. The Court noted

that although an individual may have an impairment that does not

in fact s ubstantially limit a major life activity, the reactions of

others

may prove just as disabling. `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.'

The Court concluded that, by including this test, `Congress

acknowledged that society's accumulated myths and fears about

disability a nd diseases are as handicapping as are the physical

limitations that flow from actual impairment.'

H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 1990, 1990 U.S.C.C.A.N.

445 (emphasis added).

The only two examples given in the House Report o f individuals

regarded as disabled are individuals with cosmetic impairments, such as

burn scars, and individuals who "are rejected from jobs because a back

x

- ray reveals some anomaly, even though the person has no symptoms

of a back impairment." Id. ( emphasis added). Neither of these examples

involves individuals with limitations. Accordingly, there is no indication

in the legislative history that Congress gave any thought whatsoever to

individuals who, like Deane, are not actually disabled but who are

impaired to the extent that they would require accommodation.11

S 1630.2(l) (citing School Bd. of Nassau County v. Arline,

480 U.S. 273, 284 (1987)). Thus, as one of our sister

circuits has appropriately re cognized, a perception claim

[a]lthough at first glance peculiar, actually makes a

better fit with the elaborate preamble of the Act, in

which people who have physical or mental impairments

are compared to victims of racia l and other invidious

discrimination. Many such impairments are not in fact

disabling but are believed to be so, and the people

having them may be denied employment or otherwise

shunned as a consequence. Such people, objecti vely

capable of performing as well as the unimpaired, are

analogous to capable workers discriminated against

because of their skin color or some other vocationally

irrelevant characteristic.

Vande Zande v. Wisconsin Dep't . of Administration, 44 F.3d

538, 541 (7th Cir. 1995) (emphasis supplied).

The EEOC Regulations provide that an individual is

"regarded as" being disabled if he or she

(1) [h]as a physical or mental impairment that does

not substanti ally limit major life activities but is

treated by a covered entity as constituting such

limitation;

(2) [h]as a physical or mental impairment that

substantially limits major life activities only as a result

of the attitude of others toward such impairment; or

(3) [h]as none of the impairments defined in

paragraph (h)(1) or (2) of this section but is treated by

a covered entity as having a substantially limiting

impairment.12

____ _____________________________________________________________

12. 29 C.F.R. 1630.2(h) defines "physical or mental impairment" as:

(1) [a]ny physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal, special

sense

organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genito

- urinary, hemic and lymphatic, skin,

and endoc rine; or

(2) [a]ny mental or psychological disorder, such as mental

retardation, organic brain syndrome, emotional or mental illness,and specific learning disabilities.

12

29 C.F.R. S 163 0.2(l). See also S. Rep. No. 116, 101st

Cong., 2d Sess. 23 (1989) ("Senate Report"); H.R. Rep. No.

485 pt. 2, 101st Cong., 2d Sess. 53 (1990) ("House Labor

Report"), reprinted in 4 U.S. Code Cong. & Admin. News

335; H.R. Rep. No. 485 pt. 3, 101st Cong. , 2d Sess. 29

(1990) ("House Judiciary Report"), reprinted in 4 U.S. Code

Cong. & Admin. News 452. Significantly, common to each

definition is the requirement that the individual not in fact

have an impairment that, absent the misperceptions of

others , would substantially limit a major life activity.

Each of the three definitions of being "regarded as"

disabled, as set forth in the Regulations, applies, as

written, to a discrete factual setting. The first applies to an

individual with an impairme nt that others might consider

to be a disability but does not technically fall within the

statutory definition of an actual disability. For example, if

an employee has high blood pressure, which is controlled

and is not substantially limiting, and if a n employer

reassigns that employee to a less strenuous job because of

unsubstantiated fears that the employee will suffer a heart

attack if he or she continues to perform strenuous work,

the employee would have been perceived as disabled. 29

C.F.R. ap p. S 1630.2(l). The second definition applies to an

individual who has an impairment that might not ordinarily

be considered a disability, but is, nonetheless, substantially

limiting because of the attitudes of others toward it. For

example, if an empl oyee has a prominent facial scar that is

not otherwise substantially limiting, and if an employer

discriminates against that employee because of customers'

negative reactions to the scar, the employee would have

been perceived as disabled. Id. Finally, the third definition

targets a person who has no impairment at all but is

treated by his or her employer as if he or she is disabled.

For example, if an employer discharges an employee in

response to a rumor that the employee was infected with

Human Immunodeficiency Virus ("HIV"), even though the

rumor was completely unfounded, the employee would have

been perceived as being disabled and, therefore, would be

disabled for purposes of the ADA. Id.

Deane contends that she satisfies the first defini tion

because PMC erroneously perceived the nature and extent

13of her impairment. In order to maintain a "regarded as"

claim under the ADA, however, a plaintiff must

demonstrate more than the fact that an emplo yer

misperceived the severity of the impairment. Rather, a

plaintiff must demonstrate that the impairment, as

erroneously perceived by his or her employer, would

"substantially limit" one or more of his or her "major life

activities."13 See generally Olson, 101 F.3d at 953

- 55;

_________________________________________________________________

13. Major life activities include, but are not limited to, "functions such

as

caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking , breathing, learning, and working," see 29 C.F.R. S 1630.2(I), as

well as "sitting, standing, lifting, [and] reaching." 29 C.F.R. app.

S 1630.2(I); Senate Report at 22; House Labor Report at 52; House

Judiciary Report at 28

- 29.

An individual is defi ned as "substantially limited" in a major life

activity other than working if he or she is

(I) [u]nable to perform a major life activity that the average

person

in the general population can perform; or

(ii) [s]ignificantly res tricted as to the condition, manner or

duration

under which an individual can perform a particular major life

activity as compared to the condition, manner or duration under

which the average person in the general population can per form the

same major life activity.

29 C.F.R. S 1630.2(j)(1). In determining whether a person is substantially

limited in a major life activity, courts should consider

(I) [t]he nature and severity of the impairment;

(ii) [t] he duration or expected duration of the impairment; and

(iii) [t]he permanent or long term impact, or the expected

permanent

or long term impact of or resulting from the impairment.

29 C.F.R. S 1630.2(j)(2).

Where, as here, the majo r life activity at issue is working, the term

"substantially limited" is defined as "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 comparabl e training,

skills and abilities." Olson, 101 F.3d at 952 (citing 29 C.F.R.

S 1630.2(j)(3)(I)). Thus, the mere "inability to perform a single,

particularjob does not constitute a substantial limitation in the major life

activity

of working." Id. In ma king these determinations, courts may consider

14

MacDonald v. Delta Airlines, Inc., 94 F.3d 1437, 1445 (10th

Cir. 1996); Bridges v. City of Bossier, 94 F.3d 329, 333

- 34

(5th Cir. 1996).

After rejecting Deane' s claim that she was actually

disabled, a conclusion that Deane does not challenge here,

the district court rejected her perceived disability claim on

three grounds. First, the court found, as a matter of

undisputed fact, that PMC regarded Deane's impa irment as

limiting her ability to work as a nurse on the

surgical/medical floor but not her ability to work as a

nurse in general. Next, the court determined that Deane

could not have been precluded from working in general in

her field because, follow ing her termination from PMC, she

held two positions as a registered nurse. Finally, the court

concluded, as a matter of law, that PMC's perception of

Deane's impairment was not motivated by "myth, fear or

stereotype" and, therefore, was not actionable under the

ADA. While, as noted earlier, we affirm the district court's

conclusion that summary judgment should be granted on

Deane's "regarded as" claim, we do so not on the grounds

the district court found persuasive, as each of those

grounds was er ror.

Taking the three grounds in reverse order, although the

legislative history to the ADA indicates that Congress was

concerned about eliminating society's myths, fears,

_________________________________________________________________

(A ) [t]he geographical area to which the individual has reasonable

access;

(B) [t]he job from which the individual has been disqualified

because

of an impairment, and the number and types of jobs utilizing

similar

training, knowledge, skills or abilities, within that geographical

area,

from which the individual is also disqualified because of the

impairment (class of jobs); and/or

(C) [t]he job from which the individual has been disqualified

because

of an impairment, and the number and types of other jobs not

utilizing similar training, knowledge, skills or abilities, within

thatgeographical area, from which the individual is also disqualified

because of the impairment (broad range of jobs in various classes).

29 C.F.R. S 1630.2(j)(3)(ii).

15

stereotypes and prejudices with respect to the disabled, the

EEOC's Regulations and interpretive appendix make clear

that even an inn ocent misperception based on nothing

more than a simple mistake of fact as to the severity, or

even the very existence, of an individual's impairment can

be sufficient to satisfy the statutory definition of a perceived

disability. 29 C.F.R. app. S 1630 .2(l). Thus, whether or not

PMC was motivated by myth, fear or prejudice is not

determinative of Deane's "regarded as" claim.

The second ground

-- that Deane's subsequent

employment in the field of nursing demonstrated that she

was not substantially limited in the major life activity of

nursing

-- confuses her actual impairment with PMC's

misperception thereof, confusion caused in no small part by

Deane having raised, in the alternative, these wholly

inconsistent claims before the district court. In any event,

Deane's subsequent work history could, at most, reflect her

lack of an actual disability. It sheds no light, however, on

whether, at the time of her termination, PMC regarded her

impairment as substantially limiting her ability to work.

Finally, in determining whether PMC regarded Deane as

substantially limited in the major life activity of working,

the district court overlooked evidence which could have

precluded summary judgment. Specifically, the court failed

to consider the aff idavit of Deane's vocational expert, Daniel

Rappucci, who attempted to tie PMC's perception of Deane's

injury to potential limitations in the workplace, both with

respect to the "class of jobs" and "broad range of jobs" from

which Deane would have been excluded.14 We need not,

_________________________________________________________________

14. Some courts have held that summary judgment is appropriate when

a plaintiff fails to produce vocational evidence with reference to the

factors delineated in 29 C.F.R. S 1630.2(j)(3)(ii), factors tailored

specifically to the major life activity of working and, instead, relies

solely

on the factors set forth in 29 C.F.R. S 1630.2(j)(2). See, e.g., Bolton v.

Scrivner, 36 F.2d 939, 944 (10th Cir. 1994), cer t. denied, 115 S. Ct. 110

(1995); Dotson v. Electro

- Wire Products, Inc. , 890 F. Supp. 982, 988

- 89

(D. Kan. 1995); Marschland v. Norfolk and Western Ry. Co., 876 F. Supp.

1528, 1539 (N.D. Ind. 1995), aff'd on other grounds, 81 F.3d 714 (7th

Cir. 1996). Such a bright

- line rule appears to be inconsistent with the

wording of the Regulations, which provides that the factors enumeratedin 29 C.F.R. S 1630.2(j)(2) "should" be considered and that those listed

in 29 C.F.R. S 1630.2(j)(3)(ii) "may" be conside red. In any event, Deane

presented vocational evidence tying PMC's perception of Deane's

impairment to the factors set forth in 29 C.F.R.S 1630.2(j)(3)(ii).

16

however, remand for a determination of whether, in l ight of

this vocational evidence, summary judgment should be

granted on Deane's "regarded as" claim because, as is

discussed below, she cannot, as a matter of law, prevail on

that claim.

B.

The second element of a prima facie case under the ADA

requires a plaintiff to demonstrate that he or she is a

"qualified individual." The ADA defines the term "qualified

individual with a disability" as an individual "who, with or

without reasonable accommodation, can perform the

essential functions of th e employment position that such

individual holds or desires." 42 U.S.C. S 12111 (8). The

interpretive appendix to the EEOC Regulations divides this

inquiry into two prongs. First, a court must determine

whether the individual satisfies the requisite sk ill,

experience, education and other job

- related requirements of

the employment position that such individual holds or

desires. 29 C.F.R. app. S 1630.2(m). Second, the court must

determine whether the individual, with or without

reasonable accommodati on, can perform the essential

functions of the position held or sought.15 Id. See also

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563

(7th Cir. 1996); Benson, 62 F.3d at 1112.

Determining whether an individual can, with or without

reasonab le accommodation, perform the essential functions

of the position held or sought, is no easy task and

conceptually should be separated into two distinct steps.

First, a court should ask whether the disabled individual

can perform all the requisite job functions without

accommodation. If so, the individual obviously is qualified

and, because he or she can perform all job functions

without assistance, is not entitled to accommodation from

his or her employer. If, however, the individual cannot

perfor m all the requisite job functions without

accommodation, the court must determine whether there

_________________________________________________________________

15. Because PMC does not dispute Deane's general qualifications as a

registered nurse, t here is no need to dwell on the first step of the

"qualified individual" analysis.17

exists any reasonable accommodation to which the

individual would be entitled that would enable him or her

to perform the ess ential functions of the position.16

_________________________________________________________________

16. "In general, an accommodation is any change in the work

environment or in the way things are customarily done that enables an

individual with a disability to enjoy equal employment opportunities." 29

C.F.R. app. S 1630.2(o). The text of the ADA provides that "reasonable

accommodation" may include

--

(A) making existing facilities used by employees readily accessible

to and usabl e by individuals with disabilities; and

(B) job restructuring, part

- time or modified work schedules,

reassignment to a vacant position, acquisition or modifications of

equipment or devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of

qualified readers or interpreters, and other similar accommodations

for individuals with disabilities.

42 U.S.C. S 12111(9) (emphasis added).

The EEOC Regulatio ns further define "reasonable accommodation" to

include

(I) modifications or adjustments to a job application process that

enable a qualified applicant with a disability to be considered for

the

position such applicant desires; o r

(ii) modifications or adjustments to the work environment, or to

the

manner or circumstances under which the position held or desired

is customarily performed, that enable a qualified individual with a

disability to perf orm the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity's

employee with a disability to enjoy equal benefits and privileges

of

employment as are enjoyed by its other similar ly situated employees

without disabilities.

29 C.F.R. S 1630.2(o)(1).

An individual's right to reasonable accommodation may be subject,

however, to certain limitations. For example, an employer is not required

to provide accommodation if it would impose an "undue hardship" on the

employer as defined in 29 C.F.R. S 1630.2(p)(1) and (2). An employer also

is not required to provide accommodation if the individual poses a "directthreat" to the health or safety of himself/herself or others un less such

accommodation would either eliminate such risk or reduce it to an

acceptable level. 29 C.F.R. S 1630.2(r).

18

Several of our sister circuits have adopted a similar two

pronged inquiry modeled on the Su preme Court's

interpretation of the Rehabilitation Act in Arline, 480 U.S.

at 287 n.17. The Fifth Circuit, for example, has held that

[f]irst, we must determine whether the individual could

perform the essential functions of the job[wit hout

accommodation], i.e., functions that bear more than a

marginal relationship to the job at issue. Second, if

(but only if) we conclude that the individual is not able

to perform the essential functions of the job, we mus t

determine whether any reasonable accommodation by

the employer would enable him to perform those

functions.

Chandler v. City of Dallas, 2 F.3d 1385, 1393

- 94 (5th Cir.

1993) (emphasis added) (interpreting the Rehabilitation

Ac t), cert. denied, 511 U.S. 1011 (1994). See also Lowe v.

Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir.

1996) (interpreting the ADA); White v. York International

Corp., 45 F.3d 357, 361

- 62 (10th Cir. 1995) (interpreting

the ADA); Gilbert v . Frank, 949 F.2d 637, 640

- 42 (2d Cir.

1991) (interpreting the Rehabilitation Act).

While our re

- formulation of the inquiry will invariably

lead to the same results that would be reached under

Chandler, our phraseology makes explicit what that of the

Fifth Circuit, if correctly applied, leaves implicit. That is,

our phraseology embodies the common sense notion that

any employee, disabled or otherwise, must be able to

perform all the requisite functions of a given job unless the

individual is enti tled to accommodation by operation of the

ADA or a similar remedial statute. The problem with the

Fifth Circuit test is that it is easily misapplied and, as a

result, could lead to the mistaken impression that a

disabled individual

-- or one perceived to be disabled

-- who could perform the essential functions of a job without

accommodation as to those functions, but who could not

perform one or more marginal or nonessential tasks, should

be considered qualified without accommodation. That

conclusi on, however, would overlook the fact that job

restructuring, i.e., excusing the performance of

nonessential functions or reassigning them to other

employees, is itself a statutorily defined form of

19accommodat ion. 42 U.S.C. S 12111(9)(B).17 So

accommodated, then, and only then, would the individual

be able to perform the essential functions of the position.

Thus, the formulation we posit today better allows courts

and parties alike to remain focused on the fact that an

employee who is excused from performing marginal tasks is

being accommodated and, in turn, on whether such

accommodation is statutorily required.18

Applying our two

- pronged inquiry to the facts of the case

before us, it is clear that D eane could not perform all the

requisite functions of her position. To arrive at this

conclusion, we, of course, shift our focus from PMC's

misperceptions back to Deane's actual capabilities and

limitations. To proceed otherwise would allow an employer 's

misperceptions not only to render an individual disabled,

but to defeat his or her claim by rendering him or her

unqualified as well.

The record before us reveals that both PMC and Deane

acknowledged that lifting patients was a function or

condi tion, be it essential or otherwise, of employment as a

_________________________________________________________________

17. The dissent charges us with improperly importing the consideration

of nonessential functions into the qualified individual ana lysis for

"regarded as" plaintiffs. It is Congress, however, that defined

"accommodation" to include the restructuring or reassigning of

nonessential functions. 42 U.S.C. S 12111(9)(B). Thus, when determining

whether an individual can, with or without accommodation, perform the

essential functions, see 42 U.S.C. S 12111(8), courts necessarily must

look to whether the individual may be excused from the nonessential

functions that he or she cannot perform. Indeed, the lynchpin of the

ADA is that a dis abled individual's qualifications are to be assessed only

after he or she is accommodated through job restructuring or otherwise.

Where that accommodation is not available, we do not read the ADA as

permitting the individual or the court to focus exclus ively on the

essential functions of the relevant position.

18. It is clear that when Congress included job restructuring within the

definition of reasonable accommodation, it envisioned only the

restructuring or reallocating of the marginal functions of a given

position. As the appendix to the regulations indicates, an employer is

never required to reallocate essential functions, as essential functions

are, by definition, those that the employee must be able to perform. 29

C.F.R. app. S 1630.2(o).

20registered nurse on the medical/surgical floor. That being

undisputed, both of Deane's treating physicians were of the

opinion that, in June of 1992, Deane was "permanently

disabled from heavy activity," tha t she could "return to

work but cannot do unrestricted lifting," and that her

limitations "should be considered permanent." 19 (See June

8, 1992 and June 16, 1992 letters of Drs. A. Lee Osterman

and Carl Sipowicz, respectively.) In addition, Deane test ified

at her deposition that, while lifting patients was necessary

for complete patient care, her restrictions would have made

doing so dangerous and would have presented "an awful

risk" to both her and her patients.20 Thus, when she felt

ready to re turn to work, she informed PMC that she had a

lifting restriction and hoped to be put on light duty

assignments or be reassigned to another area of the

hospital. Most importantly, she never argued before the

district court on summary judgment that she could perform

the requisite heavy lifting. Rather, she contended that her

_________________________________________________________________

19. The fact that these diagnoses might have changed in the years

following Deane's injury is irrelevant to th e issue of Deane's limitations

and capabilities at the time of the adverse employment action.

20. At Deane's deposition, the following exchange took place:

Q. Was it ever necessary for a total care patient to put them in a

wheelchair?

A. When I was working there?

Q. Yes.

A. Yes. Not for their bath, but

--

Q. Could you have done that with a lifting restriction?

A. With a lifting restriction, no. I'd like to rephrase that. I

suppose

anything is possible, if you think about it, we are taking an awful

risk. I may or may not have been able to get that patient out of

the

bed and into the wheelchair. I don't think it's a worthwhile risk

to

take when you take a ch ance that somebody could fall.

Q. So that would have been dangerous for the patient?

A. I would think so, yes.

Q. Probably dangerous for you as well, correct?

A. Possibly.21

lifting restriction easily could have been accommodated

through either reassignment or job restructuring. Thus, it

is clear that Deane could not perform all functions of the

position without some form of accommodation.

Accordingly, we next must dete rmine whether Deane is

entitled to accommodation and, if so, whether reasonable

accommodations exist that would enable her to perform the

essential functions of the position. Deane is at most

statutorily disabled in that, while her impairment does not

rise to the level of being a disability, PMC might well have

perceived her to be disabled. In other words, but for her

employer's misperception, she would not be afforded the

protections of the ADA at all. Viewed as such, we do not

believe that Congre ss intended that an individual who is

only perceived to be disabled would be entitled to

accommodation.

We begin our analysis of Congressional intent on this

issue with the text of the statute, itself. The core anti

discrimination provision of the ADA provides that"[n]o

covered entity shall discriminate against a qualified

individual with a disability because of the disability of such

individual...." 42 U.S.C. S 12112(a) (emphasis added). Thus,

while far

- reaching, the ADA is not boundless and on ly

prohibits discrimination engaged in "because of [the

individual's] disability." Id. In turn, the Act defines the term

"discriminate" as including an employer's failure to "make[ ]

reasonable accommodations to the known physical or

mental limitation s of an otherwise qualified individual with

a disability...." 42 U.S.C. S 12112(b)(5)(A). On its face,

however, this definition leaves open the question of which

limitations the employer must accommodate. Specifically, it

does not indicate whether an e mployer must accommodate

any limitation that adversely affects a disabled employee's

performance or only those limitations caused by his or her

disability. Reading the two subsections together, we are

convinced that the ADA requires an employer to

acc ommodate only those limitations caused by the

individual's disability.

This reading is borne out repeatedly in the appendix to

the Regulations regarding reasonable accommodation.

There it is stated, in explicit terms, that "[a]n individual

22

with a disability is `otherwise qualified'... if he or she isqualified for a job, except that, because of the disability, he

or she needs a reasonable accommodation..."; that

"[e]mployers are obligated to make reasona ble

accommodation only to the physical or mental limitations

resulting from the disability of a qualified individual..."; and

that "[w]hen a qualified individual with a disability has

requested a reasonable accommodation... the employer...

should... a scertain the precise job

- related limitations

imposed by the individual's disability and how those

limitations could be overcome with a reasonable

accommodation. 29 C.F.R. app. S 1630.9 (emphasis added).

Likewise, requiring accommodation only for that which

actually renders an employee disabled is virtually mandated

by Congress's intent "to remove barriers which prevent

qualified individuals with disabilities from enjoying the

same employment opportunities that are available to

persons without dis abilities." 29 C.F.R. app., Background

(emphasis added). With the passage of the ADA, Congress

intended not to erect impenetrable spheres of protection

around the disabled, but hoped merely "to level the playing

field" for them. Siefken v. Village of A rlington Heights, 65

F.3d 664, 666 (7th Cir. 1995). Thus, where an individual is

actually disabled, Congress recognized that reasonable

accommodations would often be necessary to, in a sense,

compensate for the individual's disability and allow him or

her to compete with the non

- disabled. See Vande Zande, 44

F.3d at 541 (recognizing that Congress was "unwilling to

confine the concept of disability discrimination to cases in

which the disability is irrelevant to the performance of the

disabled perso n's job"). Once accommodated for his or her

disability, an individual should be on an equal playing field

with others and thereafter would be on his or her own to

deal with any non

- disabling impairments just as would any

similarly impaired person witho ut a disability.

In the context of an individual who is not actually

disabled but is merely "regarded as" such, i.e., one who is

only statutorily disabled, that which renders him or her

disabled is not the individual's impairment, if impairment

ther e be, but the employer's unfounded stereotypes, fear or

simple misperception that the impairment is serious

23

enough to be disabling. To compensate for a statutory

disability, then, the employer need only be dis possessed of

its misperception as it is that which renders the employee

disabled. Thereafter, the individual would be neither

actually nor statutorily disabled and, like any non

- disabled

individual, would not be able to invoke the accommodation

provis ions of the ADA for any non

- disabling impairments

--including the impairment that initially might have given

rise to the employer's perception of a disability.

Accommodation, therefore, would play no role in leveling

the playing field.21 Indeed, to ho ld otherwise would give an

individual "regarded as" being disabled an undeserved

windfall were he or she to have a right to be accommodated

solely by virtue of the employer's misperception where

others with the same impairment would have no such right. 22

_________________________________________________________________

21. The evil the "regarded as" provision was intended to combat was the

effect of "archaic attitudes," erroneous perceptions, and myths. Arline,

480 U.S. at 279, 285; Wooten, 58 F.3 d at 385

- 86. As more than one

court has recognized, an ADA perception claim is akin to a racial

discrimination claim in which an individual is denied employment

because the employer erroneously perceived that the color of the

individual's skin somehow made him or her inferior. See, e.g., Vande

Zande, 44 F.3d at 541. Title VII proscribes such invidious discrimination

and protects individuals who suffer adverse consequences as a result

thereof. Such protection, however, does not include any form of

"a ccommodation" because it is presumed that the individuals can

perform their jobs without accommodation. Because the type of

discrimination faced by those who are perceived to be disabled so closely

resembles discrimination on the basis of race, with the only significant

difference being the object of the misperception, we see no reason not to

treat them in like fashion.

22. It is not by coincidence that this analysis dovetails neatly with the

EEOC's suggestion that, once a request for accommodation is made, the

employer and employee should engage in a flexible, interactive exchange

whereby the employer can become familiar with the precise contours of

the employee's limitations and can devise appropriate and effective

accommodations. 29 C.F.R. ap p. 1630.9. After an employee requests

accommodation, a meaningful interactive exchange could well rectify any

misperceptions regarding the employee's impairments. Ideally, once the

true facts are discovered, the employer could either provide reasonable

accommodation if it believes the employee to be actually disabled or

refuse to do so based on its belief that the employee is not, in fact,

disabled. Of course, if the employer takes the latter course, it will do

so

24

We are aware of only one decision of a Court of Appeals

that has held that accommodation is appropriate in the

context of a perceived disability claim, and no decision that

has held that it is not

-- until this one. In Katz v. City

Metal Co., I nc., 87 F.3d 26 (1st Cir. 1996), the plaintiff, a

recent heart

- attack victim, sought accommodation from his

employer in the form of a part

- time work schedule in

connection with his "actual" and "perceived" disability

claims. After the district court gr anted summary judgmentin favor of the employer, the First Circuit reversed on the

basis that there was enough evidence to reach the jury on

the perception claim. Id. at 32. In doing so, the court held

that, irrespective of whether the plaintiff was ac tually

disabled, he would be entitled to reasonable

accommodation if the employer perceived him to be

disabled, reasoning that

Congress, when it provided for perception to be the

basis of disability status, probably had principally in

mind the more usual case in which a plaintiff has a

long

- term medical condition of some kind, and the

employer exaggerates its significance by failing to make

a reasonable accommodation. But both the language

and the policy of the statute seem to us to offer

protection as well to one who is not substantially

disabled or even disabled at all but is wrongly

_________________________________________________________________

at the risk of an ADA lawsui t being filed against it alleging that the

employee is actually disabled. The employee would not, by definition,

however, be able to allege the facts necessary to make out a perception

claim because the employer's position would be that the employee is not

disabled.

We agree with Deane that PMC's efforts in this regard were dismal and

fell far below what has been suggested by the EEOC and required by us.

See Mengine v. Runyon, 114 F.3d 415, 420

- 21 (3d Cir. 1997). Had PMC

engaged in a meaningful in teractive process, moreover, it assuredly

would have realized the minor nature of Deane's limitations. And, of

course, while Deane would not have been entitled to any form of

accommodation or protection under the ADA given the minor nature of

her limit ations, PMC may well have decided to retain her in one of a

number of positions available during the relevant period of time,

rendering this litigation unnecessary. PMC deserves no medals.

25

perceived to be so. And, of course, it may well be that

Katz was both actually disabled and perceived to be so.

Id. at 33.

We disagree with both the First Circuit's reasoning and

its conclusion. Initially, the court's position that an

individual can be "both actually disabled and perceived to

be so" is contrary to the unambiguous definition of a

perceived disability in which an element of each of the three

categories of perceived disabilities is that the individual not

have an actual disability. 29 C .F.R. S 1630.2(l). Thus,

because the finding of an actual disability would prevent

one from satisfying an essential element of a perceptionclaim, and vice versa, it necessarily follows that an

individual simply cannot maintain a perception claim if he

or she is actually disabled. Accordingly, actual and

perceived disability claims cannot be presented as

simultaneous grounds for relief.23

Moreover, the First Circuit mischaracterized the

underlying intent of Congress in describing the "usual case"

of a perceived disability as "a long

- term medical condition

of some kind, and the employer exaggerates its significance

by failing to make a reasonable accommodation." To the

contrary, it is clear that a person "who is not substantially

disabled or e ven disabled at all but is wrongly perceived to

be so" represents the paradigmatic perception plaintiff

envisioned by Congress. See 29 C.F.R. app. S 1630.2(l);

Senate Report at 23

- 24; House Labor Report at 53; House

Judiciary Report at 29

- 31. Further, an employer's failure to

make a reasonable accommodation, itself, cannot, as the

court suggested, render the employee disabled, as the issue

of reasonable accommodation becomes relevant to

determining whether he or she is qualified only after the

indi vidual is found to be disabled.

Had the Katz court steered clear of these faulty premises,

it is by no means certain that it would have assumed, as it

did, that an individual who is only perceived to be disabled

______________________________________ ___________________________

23. They can, however, be effectively pled in the alternative where,

unlike

the case at bar, the plaintiff does not seek accommodation. See Olson,

101 F.3d at 952

- 55.

26

is entitled to accommodation from his or her employer. As

a result, we do not find the opinion persuasive.

Accordingly, we hold that where an individual claims only

to have been "regarded as" being disabled, that individual

is not entitled to accommodation unde r the ADA. Thus, if

an individual is perceived to be but is not actually disabled,

he or she cannot be considered a "qualified individual with

a disability" unless he or she can, without accommodation,

perform all the essential as well as the marginal functions

of the position held or sought.24

Of course, unlike the plaintiff in this case, the vast

majority of ADA plaintiffs claim to have an actual disability.

They must show simply that, once accommodated, they can

perform the essential functions of the position. Individuals

who are not actually disabled but are merely perceived tobe so are not entitled to accommodation. Only they must

demonstrate their ability to perform all the functions of the

position held or sought.

As a final matter, we must address a few points raised by

the dissent that, in our view, are misplaced. The dissent

repeatedly argues that a nondisabled individual with a

limiting impairment is precisely the individual that the

"regarded as" claim was designed to protec t and that this

class of individuals will be precluded from bringing suit

under the ADA. That interpretation of the ADA is entirely

unsupportable, and the dissent recognizes that it leads to

a result even it concedes that some would call "untoward."

D issent at 41.

As we discussed at footnote 11, supra, none of the

examples provided by Congress indicates a concern for

nondisabled individuals who are impaired so as to require

accommodation. Nevertheless, the dissent claims to find

________________ _________________________________________________

24. Given the state of the law at the time the district court issued its

opinion, it is understandable that the court framed its analysis in terms

of whether lifting was an essential function of Deane' s position. As this

opinion should make clear, however, the issue of whether a particular

task is essential or marginal is irrelevant in a perception case. Once it

is determined that an individual who is only perceived to be disabled

cannot perform all the functions of the position held or sought, he or she

is per se unqualified.

27

support for its interpretation in two examples provided by

the Supreme Court in Arline, 480 U.S. at 283 n.9. The first

is a chil d with cerebral palsy who was academically

competitive and was not physically threatening. That child,

however, had been excluded from public school not because

he needed accommodation, but because "his physical

appearance `produced a nauseating effect on his

classmates.' " Id. (quoting 117 Cong. Rec. 45974 (1971)).

The second of the Supreme Court's examples cited by the

dissent is of a woman crippled with arthritis who could

nevertheless do the job she sought. Like the prior example,

however, that woman was denied a job not because of her

limitations or need for accommodation, but because the

"college trustees [thought] `normal students shouldn't see

her.' " Id. Ironically, the dissent is correct that these two

individuals would be archetypal " regarded as" plaintiffs.

And, under today's holding, both could establish a prima

facie case under the ADA with ease. Significantly, however,

and consistent with today's holding, neither of those

individuals, nor any of those mentioned in the legislati vehistory or the regulations, required accommodation to

perform their jobs. Indeed, the dissent's concern for

nondisabled individuals who require accommodation, as we

believe it wrongly assumed the child and the woman did,

appears to be no one's but the author's.

Finally, we are among those who the dissent recognizes

will find that its interpretation impermissibly leads to a

result that is "untoward"; indeed, we suggest that its

interpretation impermissibly leads to a result that is

absurd. The dissent concedes that a "regarded as" plaintiff

can be terminated for not performing nonessential

functions, but only after establishing at trial that he or she

can perform the essential functions of the job and

prevailing in his or her ADA suit. In o ther words, the

dissent wishes to recognize a statutory right to

reinstatement for "regarded as" plaintiffs for whom it, in the

end, concedes that there is no lasting remedy. If Congress

did not create a meaningful remedy in a remedial statute

such as the ADA, however, we simply cannot believe that

Congress intended to create the right. That said, we are

wholly unpersuaded by the dissent's position that such

plaintiffs should retain the ability to "bring" ADA lawsuits,

28

see Dissent at 41, when the only tangible benefit that can

possibly be derived therefrom rests on an assumption that,

after years of expensive litigation, an employer who once

fired an individual for not being able to perform

nonessentia l tasks would have a change of heart and not

fire that individual again after being told by the court, or its

counsel, that it is free to do so.

For the same reason, we believe that the dissent's

invocation of the "mischief" rule is misplaced. Sir Ed ward

Coke's "mischief" rule provides, in pertinent part, as

follows: "The Office of Judges is always to make such

construction as to suppress the Mischief and advance the

Remedy." Heydon's Case, 3 Co. 7a, 7b, Magdalon College

Case, 11 Co. 66b, 73b (qu oted in United States v. Second

Nat'l Bank of N. Miami, 502 F.2d 535, 541 (5th Cir. 1974)

(Emphasis supplied). Given its own recognition that its

position fails to guarantee any lasting remedy, the dissent's

reliance on the "mischief" rule is, at best, strained. More

importantly, the dissent misconceives the mischief that the

"regarded as" prong was intended to prevent in the first

instance. While the elimination of prejudice and

misconceptions might have motivated Congress to enact the

ADA, the mi schief addressed was the exclusion of qualified

individuals from the workplace, mischief the dissent, in our

view, does not adequately address.V.

Once the analysis discussed above is properly

understood, applying it to the case at hand is a simpl e

task. Indeed, Deane's own arguments are enough to defeat

her claim. On appeal, Deane concedes that she is not

disabled, but contends that she was perceived to be so by

PMC. Further, prior to her termination, she requested that

PMC accommodate her li fting restriction, a request that she

continues to press here, and the record is utterly devoid of

any evidence that, absent the requested accommodations,

she could have performed the lifting required of nurses on

the medical/surgical floor at the time she suffered the

adverse employment action. Thus, while not entitled to

accommodation because she was merely "regarded as"

being disabled, she effectively concedes that she cannot

29

perform the functions of he r prior position without it. As a

result, she is not a qualified25 individual with a disability

and cannot, therefore, maintain a claim under the ADA.

Accordingly, the order of the district court granting PMC's

motion for summary judgment will be affir med.

_________________________________________________________________

25. That is, because Deane concedes that she cannot perform all the

requisite job functions without accommodation and is not entitled to the

accommodation that she concedes is nec essary to enable her to perform

the essential functions of the position, she cannot satisfy the qualified

prong under the test delineated above.

30

BECKER, Circuit Judge, dissenting.

Judge Barry has written a thoughtful and scholarly

opinion, but I cannot join it because it has construed the

prima facie case under the Americans With Disabilities Act

("ADA") in a way that forecloses a class of so

- called

"regarded as" plaintiffs from bringing a lawsuit, and t hereby

undermines Congressional intent. More specifically, I take

issue with the majority's holding that a "regarded as"

plaintiff, in order to be considered qualified under the ADA,

must show that she is able to perform all of the functions

of the re levant position without accommodation. It is my

view that a plaintiff need only show that she is able to

perform the essential functions of the relevant position

without accommodation.I base my opinion on the statutory definition of a

"qualified in dividual" under the ADA. That definition, in

clear language, requires an analysis of the essential

functions only. This reading of the statutory language is

bolstered by materials published by the agencies charged

with enforcing the ADA which state, in no uncertain terms,

that non

- essential functions have no place in determining

whether an individual is qualified. Moreover, consistent

with Congressional intent, this approach ensures that a

"regarded as" plaintiff, who has a non

- disabling physical

i mpairment that prevents her from performing all of the

functions of the relevant position and that leads an

employer mistakenly to regard her as disabled, may bring

an ADA lawsuit if the employer institutes an adverse

employment decision based on that incorrect assessment of

her impairment. I would remand this case to the district

court in order for it to determine whether, as a factual

matter, the Pocono Medical Center regarded Stacy Deane as

disabled and whether lifting is an essential function of the

jobs she sought.

I.

As the majority correctly points out, the prima facie case

of an ADA claim includes three elements. First, a plaintiff

must show that she is disabled. Second, she must show

that she is qualified for the job she seeks. Fin ally, she must

31

show that she suffered some adverse employment action as

a result of her disability. My concern arises from the

majority's discussion of the second element of the prima

facie case

-- whether th e plaintiff is a qualified individual

with a disability.

A.

The ADA defines a qualified individual with a disability as

"an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the emp loyment position that such individual

holds or desires." 42 U.S.C. S 12111(8).1 I agree with the

majority that a determination whether an individual is so

qualified is a two

- step process. First, a court must examine

whether the plaintiff can perform th e job without

accommodation. If so, then the plaintiff is qualified. If not,

then, as a second step in the process, a court must

examine whether the plaintiff can perform the job with a

reasonable accommodation. If so, the plaintiff is qualified.

If n ot, the plaintiff has failed to set out a necessary elementof the prima facie case.

I part company with the majority, however, when it

requires that, under the first step in this process, a

"regarded as" plaintiff must show that she can perform all

of the functions of the job, essential and non

- essential,

without accommodation. My dissent is concerned only with

this first step in the analysis of the second element of the

prima facie case. I will assume arguendo that the majority

is correct that a "regarded as" plaintiff is not statutorily

entitled to an accommodation. I note, however, my

uncertainty about this holding. The issue was not briefed

by the parties, and I am simply unsure whether there are

wider, unforeseen ramifications that would render this

holding unwise. At all events, because of the manner in

which I would decide Deane's appeal, I do not reach the

contours of that second step.

_________________________________________________________________

1. Of course, the individual must also satisfy "the requisite skill,

experience, education and other job

- related requirements of the

employment position." 29 C.F.R. S 1630.2(m). There is no dispute here

that Deane satisfies these requirements.

32

The majority reaches its conclusion by reasoning that an

individual who is unable to perform a non

- essential

function of the job without some accommodation is

rendered unable to perform the essential functions of the

job without some accommodat ion because she has been

accommodated as to a non

- essential function. In so

reasoning, the majority imports an examination of an

individual's capabilities as to non

- essential functions into

an analysis that, by its statutory terms, is focused solely on

essential functions. The majority does so without

discussion as to how those statutory terms admit of any

ambiguity or how a plain reading of those terms would lead

to irrational results.

The majority supports its position with a strained reading

of the statute. The majority argues that because the statute

includes job restructuring as an accommodation, then an

individual who requires job restructuring must not be able

to perform the essential functions of the job without

accommodation because the job restructuring is itself an

accommodation, even though the job restructuring has only

accommodated the individual as to the non

- essential

functions. Given the language of the statute, its purpose,

and executive interpretations thereof, this anal ysis is wholly

unpersuasive.B.

The question as to the proper analysis of the first phase

in the second element of the prima facie case is, at bottom,

one of statutory interpretation. The "first step in

interpreting a statute is to determine whet her the language

at issue has a plain and unambiguous meaning with regard

to the particular dispute in the case." Robinson v. Shell Oil

Co., ___ U.S. ___, 117 S. Ct. 843, 846 (1997). At least as I

read it, S 12111(8), which defines "qualified individua l," is

plain and unambiguous. The first sentence of that section,

quoted in pertinent part in part I.A., makes it clear that the

phrase "with or without reasonable accommodation" refers

directly to "essential functions." In fact, there is nothing in

t he sentence, other than "essential functions," to which

"with or without reasonable accommodation" seems to refer;

the only terms in the sentence for which an accommodation

33

would make any sense are "essential functions." In other

words, there is simply no mention of non

- essential

functions in the statutory definition of "qualified

individuals" and thus no indication at all that the ADA is

concerned about whether an individual is capable of

performing such functions. Therefore, if an individual can

perform the essential functions of the job without

accommodation as to those functions, regardless whether

the individual can perform other functions of the job (with

or without accommodation), then that indiv idual is qualified

under the ADA.

Unlike the majority, then, I believe that an individual

need not show that she can perform all of the functions of

the job without accommodation to satisfy the first step in

the second element of the prima facie cas e. Rather, she

needs to show only that she can perform the essential

functions of the job without accommodation as to those

functions.

C.

My reading is consistent with the object and policy of the

statute. See, e.g., Crandon v. United States, 494 U.S. 152,

158 (1990) ("In determining the meaning of the statute, we

look not only to the particular statutory language, but to

the design of the statute as a whole and to its object and

policy."); In re Arizona Appetito's Stores, Inc., 893 F.2d 216,

219 (9th Cir. 1990) ("[I]f the statutory language gives rise to

several different interpretations, we must adopt the

interpretation which `can most fairly be said to be

imbedded in the statute, in the sense of being mostharmonious with its scheme and with the general purposes

that Congress manifested.' " (quoting N.L.R.B. v. Lion Oil

Co., 352 U.S. 282, 297 (1957))).

Discussing a similar claim in the context of the

Rehabilitation Act, the Supreme Court wrote that Congress

intended the "regarded as" claim to combat society's

"accumulated myths and fears about disability and

disease." School Bd. of Nassau County v. Arline, 480 U.S.

273, 284 (1987). In order to combat these myths and fears,

we must be aware of the contexts in which they arise. O nly

34

then can we be sure that we are promoting the

congressional goals of eliminating the "prejudiced attitudes

or the ignorance of others." Id. The majority, examining the

legislative history of and the regul ations to the ADA,

describes a number of factual circumstances in which an

individual might be subject to these myths and fears.2 They

include individuals with cosmetic impairments (e.g., facial

scars) and high blood pressure, and individuals who have

either been misdiagnosed by a physician (e.g., a misread

X

- ray) or are the subjects of rumors about their

health (e.g., that the individual is infected with Human

Immunodeficiency Virus ("HIV")). In each of these

circumstances, employers may regard th ese individuals as

disabled because of misperceptions about their non

- limiting

physical impairments or their actual, as opposed to

misdiagnosed or rumored, health.

Missing from this catalogue of cases are those in which

a visible physical impairment limits the individual in some

respects but is not actually disabling. But the Supreme

Court in Arline cited such cases in its discussion of the

Rehabilitation Act, noting that Congress intended the

"regarded as" claim in that act to cover, for example , a

cerebral palsied child who was academically competitive

and posed no physical threat to others, and a woman

crippled with arthritis who could nevertheless do the job

she sought. See id. at 283 n.9.3 Although I have no way of

_____________________ ____________________________________________

2. As the majority points out, see Maj. Op. at n.11, the legislative

history

of the ADA "regarded as" claim cites to, and largely endorses, the

Supreme Court's discussion in Arline of the purpose of protect ing a

"regarded as" plaintiff.

3. Although left unstated by the Supreme Court, I assume that in these

examples the individuals suffered from some physical limitations that

required accommodation from the school, in the case of the child, orfrom her employer, in the case of the woman, as to non

- essential

functions of the school or the job. The majority argues that in neither of

these examples is an accommodation necessary. That argument, like my

own statement that each of these individuals indeed needed an

accommodation, is itself an assumption. Nothing in Arline or the

congressional statements to which it cites discloses whether these

individuals required some accommodation.

35

empirically measuring the size of this class of cases, I

suspect that the majority of instances in which an

individual suffers from the prejudiced attitudes or

ignorance of others occurs when the targeted individual

exhibits some visible and limiting, though non

- disabling,

im pairment, which affects the individual's capability to

perform non

- essential functions but not essential functions.4

In such cases, the effects of myth and fear are evident.

Those encountering the individual are confronted

immediately with the impair ment and are naturally forced

to assess its extent. If the impairment were somehow

limiting, it would be unsurprising, though unfortunate, if

prejudice or ignorance would lead those encountering the

individual to misperceive the impairment as disabling . At

least as I understand the ADA, this is exactly the scenario

the "regarded as" claim was designed to prevent.

With this purpose in mind, it becomes clear that the

proper reading of S 12111(8) is that the phrase "with or

without reasonable accomm odation" refers only to

"essential functions." This reading ensures that the class of

potential "regarded as" plaintiffs who exhibit some limiting

but non

- disabling physical impairment

-- the very plaintiffs

who would directly suffer from myth and fear

-- can bring

an ADA claim.

If, as the majority would otherwise have it, "without

reasonable accommodation" does not refer only to"essential

functions," then such potential plaintiffs would be

foreclosed from bringing an ADA claim because many of

_ ________________________________________________________________

That said, I believe that my assumption is more firmly grounded in

reality. A child with cerebral palsy would likely be excused from gym, for

example. A woman crippled with arthritis who worked as a clerk would

likely be excused from lifting heavy file boxes, for another example. At

all

events, I seriously doubt that the cerebral palsied child or the woman

crippled with arthritis would, as the majority claims, be able to show

that he or she could perform each and every function of the school or

the job "with ease." And, if he or she failed to make such a showing, the"regarded as" claim would, under the majority's formulation, also fail.

4. Concomitantly, I suspect that the kinds of case described by the

majority are the minority.

36

them, limited by their physical impairment, cannot perform

all of the functions

-- both essential and non

- essential

-- of the relevant employment position, and because they are

not entitled to any accommodation. If I am correct that

many of the "regarded as" plaintiffs will exhibit some

limiting physical impairment, then the majority has

significantly restricted the protection provided by the

"regarded a s" claim.

D.

My reading of S 12111(8) also comports with the

interpretation given that provision by the Department of

Justice ("DOJ") and the Equal Employment Opportunity

Commission ("EEOC"), which are both charged with

enforcing the ADA.5

The EEOC publishes a technical assistance manual for

employers, other covered entities, and disabled persons to

learn about their respective responsibilities and rights

under the ADA. In describing the process to determine

whether an individual is qualifi ed under the Act, the

manual states:

(2) Determine if the individual can perform the

essential functions of the job, with or without

reasonable accommodation.

This second step, a key aspect of nondiscrimination

under the ADA, has two parts:

_________________________________________________________________

5. The regulations adopted to implement the ADA are of no additional

help in interpreting S 12111(8). The language in the regulations

essentially parrots that of the statute. See 29 C.F.R. S 1630.2(m)

(defining a qualified individual, inter alia, as one "who, with or without

reasonable accommodation, can perform the essential functions of such

position").

Although I cite to materials that have not bee n adopted pursuant to

the Administrative Procedures Act, including public notice and comment,

these materials are generally accorded some deference, though not the

substantial deference that Chevron U.S.A., Inc. v. Natural Resources

Defense Council, In c., 467 U.S. 837 (1984), requires of formally adoptedregulations, interpretations, and the like. Cf. Koray v. Sizer, 21 F.3d

558,

562 (3d Cir. 1994) (according some deference to the internal agency

guidelines of the Bureau of Prisons that interpret sta tutory language).

37

* Identifying "essential functions of the job"; and

* Considering whether the person with a disability

can perform these functions, unaided or with a

"reasonabl e accommodation."

The ADA requires an employer to focus on the essential

functions of a job to determine whether a person with

a disability is qualified. This is an important

nondiscrimination requirement. Many people with

disabilities who can perform essential job functions are

denied employment because they cannot do things that

are only marginal to the job.

Equal Employment Opportunity Commission, A Technical

Assistance Manual on the Employmen t Provisions (Title I) of

the Americans with Disabilities Act, II

- 12 (1992) (emphasis

in original). I can think of no plainer statement for my

position than the last paragraph I quote. The EEOC makes

a clear distinction between essential and non

- essent ial

functions, and then states that it is only the essential

functions about which the ADA is concerned. Nothing in

this provision requires an examination whether an

individual is or is not capable of performing a non

- essential

function.

Similarly, a pamphlet published jointly by the EEOC and

the DOJ states that "[r]equiring the ability to perform

`essential' functions assures that an individual with a

disability will not be considered unqualified simply because

of inability to perform marginal or incidental job functions."

U.S. Equal Employment Opportunity Commission & U.S.

Department of Justice, Civil Rights Division, The Americans

with Disabilities Act, Questions and Answers 2 (1992).

Finally, a handbook, also published jointly by the EEOC

and the DOJ states that "[t]he purpose of this second step

[in determining whether an individual is qualified] is to

ensure that individuals with disabilities who can perform

the essential functions of the position held or desired are

not denied empl oyment opportunities because they are not

able to perform marginal functions of the position." U.S.

Equal Employment Opportunity Commission & U.S

Department of Justice, Americans with Disabilities

Handbook I

- 37 (1992).38

Each of these documents explains S 12111(8) and the

regulations thereto. All of this material has one common

theme; the emphasis in the qualified individual analysis is

on the essential functions of the job only, separate and

apart from the non

- essential functions. This material

therefore bolsters my view that an individual is qualified

under the ADA if she can perform the essential functions of

the job without accommodation as to those functions.

E.

The difference between my approa ch and that of the

majority can be highlighted by an example. Imagine a

plaintiff who has Tourette's syndrome.6 Assume that this

plaintiff is not disabled under the ADA, but she does show

visible signs of the syndrome, which, in her case, includes

th e occasional blurting out of obscenities. Our plaintiff is a

janitor in a large office building. Assume that she can,

without any accommodation thereto, perform all of the

essential functions of her job. Assume, however, that a

non

- essential function o f her job is the use, at all times, of

polite, courteous language when interacting with other

workers in the office building. Because the nature of her job

is such that it need not be completed during the day, her

supervisor, at the plaintiff 's reques t, has restructured her

job so that the plaintiff works the night shift. That way, the

plaintiff will not come into frequent contact with other

workers in the office building. A new supervisor,

unfortunately, replaces the earlier supervisor. He learns of

our janitor's syndrome, regards the syndrome as a

disability, and fires the janitor because he believes she

cannot perform the job adequately.

Under the majority's formulation of the prima facie case,

the janitor cannot bring an ADA claim. Althou gh she

satisfies the first element (she is regarded as disabled) and

_________________________________________________________________

6. Gilles de la Tourette's syndrome is a "syndrome of facial and vocal

tics

with onset in childhood, progressing to generalized jerking movements in

any part of the body . . . with coprolalia." Dorland's Illustrated Medical

Dictionary 1635 (27th ed. 1988). Coprolalia is the "compulsive,

stereotyped use of obscene, `filthy' language, particularly of words

relating t o feces." Id. at 380.

39the third element (she was fired because of her disability) of

the prima facie case, she cannot meet the test for the

second element. That is so because she cannot perform all

of the non

- essential functions of the job without

accommodation, thereby failing the first step in the

analysis, and she is not statutorily entitled to an

accommodation, thereby failing the second step in the

analysis. She would be, therefore, unqualified.

As I would fashion the second element of the prima facie

case for an ADA claim, a plaintiff need only show that she

is capable of performing the essential functions of the

relevant employment position without accommodation as to

those functions. Under my suggested formulation of the

test, then, our janitor would be qualified for the job because

she would be able to perform all of the essential functions

of the job without accommodation thereto. Concededly, our

janitor, to perform all the functions of her job, must be

accommodated.7

I submit that our hypothetical janitor is exactly the type

of plaintiff Congress had in mind when it created the

"regarded as" claim. If we were to foreclose her ability to

bring an ADA claim, as the majority would ha ve it, we

would be undermining congressional intent.

F.

In the present case, then, I believe a remand is in order.

There is no dispute that Deane cannot engage in heavy

lifting, a function of the nursing positions she sought at the

Pocono Medical Center. I believe there is, however, a

genuine issue of fact as to whether heavy lifting is an

essential function of those positions. Such a determination

is material to Deane's claim, at least as I read the ADA; if

heavy lifting is not an essential f unction, and if Deane can

perform the remainder of the essential functions of the

nursing positions she sought, then she has satisfied the

second element of the prima facie case.

_________________________________________________________________

7. H owever, I make no claim that such accommodation is statutorily

required. As I note supra part I.A., I reserve comment as to whether a

"regarded as" plaintiff is entitled to accommodation.

40

I believe further tha t Deane has also presented enough

evidence to raise a genuine issue of material fact as to

whether the Pocono Medical Center regarded her as

disabled, the first element of her prima facie case.8II.

I recognize that my reading of the ADA might lea d to a

superficially bizarre result, which, upon examination,

disappears but is, at all events, both logical and completely

consistent with congressional intent. To illustrate this

result, let us recall our hypothetical janitor. Under my

reading of th e ADA, our janitor would be permitted to bring

a claim against her employer on the grounds that her

employer fired her because she was regarded as disabled

despite the fact that she could perform the essential

functions of the job without accommodation . Assume that

she wins her case, receives damages, and is returned to

this job. At this point, our janitor can no longer bring a

claim under the ADA, because she would be unable to meet

the first prong of the prima facie case. As we have seen, she

is not actually disabled, at least as that term is narrowly

defined by the ADA, and has no history of a disabling

impairment. Nor is she regarded as disabled, a statement I

make with confidence because, having lost the case against

it, her employer will p resumably have been disabused of its

notion that our janitor is disabled. Her employer can

therefore immediately turn around and fire her for her

inability to perform all of the functions of the job.

To some, then, my interpretation impermissibly lea ds to

an untoward result. See, e.g., United States v. Schneider, 14

F.3d 876, 880 (3d Cir. 1994) ("It is the obligation of the

court to construe a statute to avoid absurd results, if

alternative interpretations are available and consistent with

the le gislative purpose."). In the end, the employer gets

exactly what it initially wanted (to rid itself of our janitor),

but had to fight (and lose) a lawsuit to do it, while our

_________________________________________________________________

8. There is no dispute that Deane suffered an adverse employment

action, the third element of the prima facie case.

41

janitor suffers the very fate she was suing to avoid (losing

her job), but does so only after winning her case. 9

This result, however, conforms with the venerable

"mischief " rule, that canon of construction that "directs a

court to look to the `mischief and defect' that the statute

was intended to cure." Elliott Coal Mining Co. v. Director,

Office of Workers' Compensation Programs, 17 F.3d 616,

631 (3d Cir. 1994) (quoting Heydon's Case, 76 Eng. Rep.

637 (Ex. 1584)).10 Congress intended the "regarded as"

claim at issue here to cure the "mischief" of prejudice

against and ignorance about disabili ty and disease, whichprejudice and ignorance might lead employers to make

employment decisions based on misperceptions.11 That is

exactly what our janitor did by bringing her lawsuit; she

exposed the myths and fears surrounding Tourette's

syndrome. T he mischief having been cured, there is no

more work for the "regarded as" claim, or the ADA for that

matter, to do. No longer mistaken about Tourette's

syndrome, our janitor's employer now treats our janitor the

same as any other janitor in its employ . The goals of the

"regarded as" claim have thus been accomplished. As far as

_________________________________________________________________

9. The result does not mean that the janitor has ultimately been denied

some meaningful, lasting remedy, a s the majority claims. As I have

already noted, she is potentially entitled to damages for the firing.

10. The majority's suggestion that I misuse the mischief rule is

incorrect.

The mischief rule is an interpretive technique employed to ensure that a

statute "will be construed to apply only so far as is needed to remedy the

perceived mischief." 2B Norman J. Singer, Sutherland on Statutes and

Statutory Construction, S 54.04 (5th ed. 1992). That is precisely what I

am endeavoring to do: remedy the p rejudice and ignorance that distorts

employment decisions.

11. The majority's claim that I have misconceived the "mischief " that the

"regarded as" claim was meant to prevent is unfounded. The elimination

of prejudice and ignorance is integral to ens uring that otherwise

qualified individuals are not excluded from the workplace. As I explained

in part I.C., the majority's formulation of the prima facie case will

foreclose the ADA claims of many "regarded as" plaintiffs who may have

been harmed by s uch prejudice and ignorance. If they are unable to

bring ADA claims, such plaintiffs will be unable to eliminate that

prejudice and ignorance, thereby ensuring that otherwise qualified

individuals may suffer adverse employment decisions because they are

the subjects of misinformation.

42

the ADA is concerned, if our janitor's employer makes

irrational or unfair employment decisions based on factors

other than a disability, so be it.

But that is far from the end of the analysis. For, I

suspect that which is untoward is not the putative result of

my hypothetical but the hypothetical itself in that, under

the circumstances described, I seriously doubt that the

janitor would be fired. More likely, the employ er would

probably not fire her but just have her work at night, either

because the employer is now enlightened or would prefer to

avoid a possible second lawsuit. In such event the purposes

of the ADA, unattainable under the majority's approach,would be vindicated.

III.

The ADA presents subtle issues of statutory

interpretation, far more subtle and difficult I might add,

than those prescribed under the other anti

- discrimination

statutes (Title VII, ADEA etc.). Compounding the difficulty

in t his case was the unusual nature of Deane's claim. It is

unsurprising, then, that this case has generated

disagreement over the meaning of the ADA. With due

respect for the majority, I believe that my interpretation of

the relevant statutory language is the correct one. I

therefore respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

43