The “Regarded As” Part Of Disabled Is Clarified

By Jeanine Poole
New Hampshire Employment Law Letter
May 2008

In an important decision issued by the First Circuit Court of Appeals (which covers New Hampshire), the court recently clarified requirements that are necessary for an employee to set forth a “regarded as” disabled claim under the Americans with Disabilities Act (ADA). These requirements include specifically identifying the major life activities that an employer (allegedly) regards as being substantially limited by an impairment. In addition, the decision provides helpful guidance to employers who might be confronted with an employee demanding accommodation for matters that do not constitute disabilities.

Background

Delia Ruiz Rivera began working for Pfizer Pharmaceutical in 1997. Initially, she worked as a packaging operator in the bottling department, primarily involved in pouring pills, bottles, and caps, monitoring the conveyor, packing and inspecting the product, and cleaning machinery. Several months after becoming employed, Ruiz Rivera became pregnant and took her first leave from her employer.

In August of 1999, Ruiz Rivera advised Pfizer of several medical problems, including edema, numbness and continued affects of a potentially herniated disc. At her doctor’s recommendation, she took a short leave of absence. When she returned to work, her physician again asked that she be excused for a period of several months on account of her herniated disc-related medical issues. Pfizer then granted back-to-back medical leaves followed by an 8-week maternity leave.

When Ruiz Rivera returned from her maternity leave, she provided Pfizer with a medical certificate indicating that she was being treated for carpal tunnel syndrome and lumbo sacral disc herniation. Her physician indicated that she was fit to return with some limitations, specifically recommending that she avoid certain activities, including repetitive hand motions, placing her hands over her shoulders, lifting, pushing, holding, and bending. Her physician also placed a 25 pound limitation on what she could lift.

In addition, Ruiz Rivera provided a different medical certificate indicating that she suffered from major depression. After additional leaves granted by Pfizer, Ruiz Rivera reported back to work -- but again setting forth her various limitations. The plant physician advised Ruiz Rivera that he had discussed the nature of her work with her supervisor and had concluded that she would be unable to perform the essential tasks of her job given her limitations. Pfizer further determined that her work would aggravate the medical conditions for which she had been placed on limitations.

Pfizer took the position that it did not have to accommodate Ruiz Rivera’s restrictions because Ruiz Rivera was not disabled under the ADA. Thereafter, a series of letters were exchanged in which Pfizer requested Ruiz Rivera to return to meet and discuss both her health and status and her possible work at the company. After all efforts to bring her to the company were unsuccessful, Pfizer terminated her employment.

The Early Litigation

After being terminated, Ruiz Rivera filed a lawsuit in which she claimed that Pfizer violated various laws, including the ADA. Soon after, the parties agreed to proceed only in connection with Ruiz Rivera’s ADA claims. In defending against the ADA claim, Pfizer argued that Ruiz Rivera was not “disabled” within the meaning of the ADA and was not, accordingly, entitled to accommodation.

In contrast, Ruiz Rivera claimed that she was disabled under the ADA as she was “substantially limited on the major life activity of sitting and standing” and that Pfizer’s failure to accommodate her disability violated the ADA. In the alternative, she claimed that even if she was not “substantially limited on the major life activity of working,” Pfizer “regarded” her as such when it refused to accommodate the restrictions set forth by her doctors.

At the first stage of the litigation, the court determined that Ruiz Rivera was not disabled in any major life activity and therefore was not entitled to accommodation. However, based on certain statements that Ruiz Rivera alleged were made by representatives of Pfizer, the court refused to dismiss her case and allowed it to proceed.

The Second Phase of the Litigation

When the court allowed the ADA claims to proceed, Pfizer requested that the court reconsider its decision. Pfizer noted in its request that for purposes of the ADA, one is considered disabled if she (a) has a physical or mental impairment that substantially limits one or more of her major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. Pfizer went on to state that the regarded as prong of the ADA exists to cover those cases “in which myths, fears and stereotypes, affect the employer’s treatment of an individual” and that no such stereotyping was present in this case.

In analyzing Pfizer’s position, the court agreed that when an individual claims she is “regarded as” disabled, she may not rely on the mere fact that her employer perceived her as somehow disabled; but rather, must prove that the employer regarded her as disabled within the meaning of the ADA. Accordingly, an individual does not avoid the responsibility of demonstrating how the employer perceived her as specifically disabled. In fact, the court noted in its decision that “regarded as claims under the ADA require an even greater level of specificity than other claims.” In order to allege an actionable “regarded as” claim, an employee must select and identify the major life activity that the employer allegedly regarded as being substantially limited by her impairment.

As the court concluded that Ruiz Rivera failed to identify the specific way in which Pfizer regarded her as disabled, the court threw out her ADA lawsuit prior to trial. Ruiz Rivera v. Pfizer Pharmaceuticals, LLC, US Court of Appeals, No. 07-1595, March 27, 2008.

What We Learn

The court’s decision makes clear that an individual who is claiming that an employer regards her as disabled must identify and prove the “regarded as” claim with specificity. The individual is required to identify the specific life activity that forms the basis for the claim that the employer regarded her as disabled. Where no specific life activity forms the basis for the employer’s decision and the employee is not in fact disabled, the unwillingness of an employer to provide accommodation will not transform the employer’s actions into a violation of the ADA.

Jeanine Poole is a member of the Sulloway & Hollis Labor and Employment practice group.