• Individuals who are discriminated against due to an actual or perceived impairment are protected by the ADA.

Individuals who are subjected to a prohibited action because of an actual or perceived physical or mental impairment, regardless of whether that impairment actually substantially limits a major life activity are protected by the Americans with Disabilities Act (ADA). Prohibited actions include such things as:

• Refusal to hire;
• Demotion;
• Placement on involuntary leave;
• Termination;
• Exclusion for failure to meet a qualification standard;
• Harassment; and
• Denial of any other term, condition, or privilege of employment

Congress expects broad application of this protection, and individuals should have an easy time establishing coverage. The only exception in the “regarded as” prong is for impairments that are minor and last fewer than six months (transitory).

People can establish coverage by showing that they were treated adversely because of a real or perceived impairment, without having to establish the employer’s beliefs concerning the severity of an impairment. This shifts the focus from what the employer may believe about an impairment to how an individual is treated. To qualify for coverage, an individual is not subject to any functional test. In addition, the concepts of “major life activities” and “substantial limitation” are not relevant in evaluating whether an individual is “regarded as having such an impairment.” The intent is to protect all people who are subjected to discrimination based on disability, even if they do not, in fact, have a disability or an impairment. It also reflects recognition by Congress that the reactions of others to an impairment or perceived impairment can be just as disabling as the limitations caused by an actual impairment.

Individuals may also be deemed substantially limited due to the attitudes of others. People with stigmatic conditions that constitute physical or mental impairments, but that do not by themselves substantially limit a major life activity, may still be covered by the ADA. Individuals who, for example, have experienced severe burns may have an impairment that is substantially limiting solely because of the attitudes of others, as might individuals who have a cosmetic disfigurement and are continuously refused employment due to an employer’s fears about the negative reactions of coworkers or clients.

Additionally, unimpaired people regarded as having impairments may also be covered by the ADA. Consider, for example, an individual who was rejected from employment because the employer mistakenly believed that the individual had HIV infection. Even though the individual had no impairment, the individual was regarded as having an impairment, was subject to an adverse employment action, and thus was protected by the law. To successfully argue that an employee is not regarded as having a disability, employers must be able to show that the perceived condition is both transitory and minor. Relying on only one of these factors is not enough. Some employers might want to argue, for example, that since an impairment lasted fewer than six months, it isn’t protected by the ADA. Both factors must, however, be present for the employer to win in court.

Whether a condition is minor involves considering factors such as:

• The symptoms and severity of the impairment,
• The type of treatment required,
• The risk involved,
• Whether any kind of surgical intervention is anticipated or necessary, and
• The nature and scope of any post-operative care.

For example, a broken pinky finger is hardly comparable to surgically removing a lung nodule. The latter involves surgery — which is, by definition, an invasive procedure — on a vital organ and all the risks and post-operative care this inevitably entails.