Diversity & Inclusion

ADA Prohibits Bias Against Employees Who Are ‘Regarded As’ Disabled

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees because of their disabilities. A covered disability is a physical or mental impairment that substantially limits a major life activity. That protection also extends to employees who are simply “regarded as” having a disability.

Source: Luis Molinero / shutterstock

Before 2008, to prevail on a “regarded as” claim, an employee had to prove his employer subjectively believed he was substantially limited in a major life activity. In 2008, however, the scope of the “regarded as” protection was expanded by the ADA Amendments Act (ADAAA), which eliminated that requirement. The current state of the law was discussed in a recent decision from the 9th Circuit.


Herman Nunies was employed by HIE Holdings as a full-time delivery driver. He primarily handled and delivered five-gallon bottles of water to residential and commercial customers. At some point, he developed a shoulder injury that caused stabbing pain when he lifted his arm above his chest. He asked HIE to transfer him to a less physical part-time job in the company’s warehouse.

After his supervisor told him the transfer was approved, Nunies disclosed his shoulder pain. Two days later, the supervisor told him the part-time warehouse job had been eliminated because of budget cuts and that he had to resign. A few days later, however, HIE advertised for a part-time warehouse employee.

Nunies sued, contending HIE violated the ADA by discriminating against him because of his disability. He advanced two claims:

  1. The company took action against him because he has a covered disability.
  2. It regarded him as having a disability.

On the question of whether Nunies has a covered disability, the judge ruled that he didn’t identify any major life activity that is affected by his impairment. On the “regarded as” claim, the judge ruled Nunies didn’t present direct evidence that HIE subjectively believed he is substantially limited in a major life activity. Therefore, the judge threw out both claims. Nunies appealed to the 9th Circuit.

9th Circuit Disagrees with Trial Court

In discussing whether Nunies presented evidence that he has a covered disability, the 9th Circuit emphasized that the ADA’s definition of “major life activities” includes lifting and working. In addition, according to the regulations adopted under the Act, the phrase “substantially limits” should be construed broadly, and an impairment “need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

HIE argued that because Nunies continued working at his delivery job despite his pain, his shoulder condition didn’t substantially limit his activities. The court disagreed, concluding that having a stabbing pain when raising your arm above your chest substantially limits the major life activity of lifting and perhaps also working.

Turning to Nunies’ “regarded as” claim, the court found that he wasn’t required to present evidence that HIE subjectively believed he was substantially limited, pointing out that Congress expressly did away with that requirement in the ADAAA. All Nunies had to do was present evidence that HIE regarded him as having a disability.

The evidence Nunies presented was sufficient. His supervisor told him he would get the transfer, but two days after he disclosed his shoulder pain, HIE rescinded the offer and forced him to resign. That temporal proximity would permit a reasonable inference that the company forced him to resign because of his shoulder injury. The evidence that HIE was looking to hire someone for the same job while telling Nunies the job had been eliminated also would support a reasonable inference that the company changed its mind for an illicit reason. Therefore, the 9th Circuit sent the case back to the trial court, where Nunies will be able to present his claims to a jury. Nunies v. HIE Holdings, Inc., Case No. 16-16494 (9th Circuit, September 17, 2018).

Takeaway for Employers

Employers greatly prefer having employment claims dismissed by the trial court judge to avoid the costs and risks of having the claims go to a jury trial. This case demonstrates two circumstances that often will make it impossible to convince the judge to dismiss a case before trial. The first was the short amount of time—only two days—between the company learning of Nunies’ shoulder pain and rescinding the transfer. In many contexts, such temporal proximity in and of itself is sufficient evidence that the adverse action was taken because of an illegal reason. The second circumstance—the evidence that the company falsified the reason for rescinding the offer—also was damaging to its case.

Employers should exercise great care before taking an adverse action against an employee soon after he has disclosed what could be a protected disability or has engaged in some sort of protected conduct, such as complaining about perceived discrimination. And the old saying “Honesty is the best policy” is as true in the employment world as it is in the rest of life: Dishonesty and misrepresentations often come back to haunt employers.

Bruce Cross is a Partner at Perkins Coie LLP. He also contributes to the Washington Employment Law Letter and can be reached at bcross@perkinscoie.com.