• Employers who discriminate against individuals based on actual or perceived disability are violating the ADA.

Just because an employer might believe employees have impairments that render them unable to perform job functions, it’s best not to act on assumptions.

People are regarded as having an impairment any time an employer takes a prohibited action against them due to an actual or perceived impairment, even if the employer asserts, or may ultimately establish, a defense to such action. Even if “regarded as” coverage is established, the individual must still establish the other elements of the claim, such as being qualified, and the employer may raise any available defenses. In other words, a finding of “regarded as” coverage is not itself a finding of liability.

The fact that the “regarded as” coverage requires proof of causation to show that a person is covered, however, does not mean that proving a claim is complex. While people must show, both for “regarded as” coverage and ultimate liability, that they were subjected to a prohibited action because of an actual or perceived impairment, this needs to be made only once. Thus, people making a claim under the “regarded as” coverage may demonstrate a violation of the Americans with Disabilities Act (ADA) by meeting the burden of proving that:

• They have an impairment or were perceived by an employer to have an impairment, and
• The employer discriminated against them because of the impairment in violation of the statute.

It’s worth noting that the fact that an employer’s action may have been based on an impairment does not necessarily mean that the employer engaged in unlawful discrimination. Individuals must, for example, be qualified for the job they hold or desire. Additionally, an employer may have a defense to an action taken due to an impairment if the individual would pose a direct threat or the employer’s action was required by another federal law. Employers will be held liable only when an individual proves that they engaged in unlawful discrimination under the ADA.