What does it mean to be regarded as having a disability?

In 1990, Congress passed the Americans with Disabilities Act (ADA) which protects employees from being discriminated against because of their disability. This means that an employer cannot discriminate against a qualified individual on the basis of his disability when it comes to hiring, firing, promotion, and pay. So, an employer cannot deny job benefits to a disabled employee or create tests that screen out otherwise qualified but disabled individuals.

The ADA also requires employers to make reasonable accommodations for disabled employees so that they can perform their jobs.

The ADA covers employers with fifteen or more employees, and, like most federal employment statutes, only applies to employees and not independent contractors. An employee is an individual that the employer has the right to control.

If an employee believes that he has been discriminated against on the basis of his disability, he must show that he has a disability as defined by the ADA, that he was otherwise qualified for the position, and that his employer failed to make a reasonable accommodation.

There are three ways an employee can show that he has a disability. First, he may have an actual disability—that is, a physical or mental impairment that substantially limits one or more of his major life activities. Second, he may have a record of an actual disability. Third, he may be regarded as having an actual disability.

Regarded as disability is different from actual disability and record of disability in that the impairment does not have to substantially limit a major life activity. Instead, an employee is protected under the ADA from discrimination because of a perceived physical or mental impairment. However, regarded as disability can only be used to prove discrimination, not that an employer failed to make a reasonable accommodation for a disabled employee.

These cases turn on whether the employer regarded the employee as disabled and then discriminated against the employee based on that belief. Take, for example, an employer who finds out his employee was hospitalized for heart palpitations and was having trouble breathing. If the employer, forces the employee to resign because of this knowledge, the employer has violated the ADA because he regarded the employee as disabled and discriminated against her.

Although this is a very broad definition of disability, the perceived disability cannot be transitory—that is, lasting six months or less—and minor. The perceived disability must also qualify as an “impairment” under the ADA. An impairment is some physical or mental disorder that has a negative affect on the employee.

For example, an impairment could be the loss of a limb. Similarly, a disease like cancer would be an impairment. Mental illnesses like bipolar disorder would also constitute impairments. Because the cause of the condition does not matter in determining whether it is a disability, conditions like alcoholism that are caused, initially, by voluntary behavior are still considered impairments.