Third Circuit Clarifies That A Disability Must Be Both “Transitory and Minor” To Qualify Under The Exception To The “Regarded-As” Prong of The ADA (US)
With the Americans with Disabilities Act (ADA) now 30 years old, most people, and certainly all HR professionals and employment lawyers, know that it is unlawful to discriminate against employees (and applicants) on the basis of a physical or mental disability. What is less widely known, however, is that the ADA not only prohibits discrimination based on known or disclosed disabilities, but also discrimination against individuals who are “regarded as” disabled. A recent case from the US Court of Appeals for the Third Circuit (which covers Delaware, New Jersey, and Pennsylvania) examined this “regarded as” prong of the ADA, and specifically, an exception to it when the perceived disability at issue is of short duration and minor in its limitations.
William Eshleman started working as a truck driver for Patrick Industries in July 2013. In 2015, he took two months of medical leave for a procedure to have a nodule removed from his lung and tested for cancer. After this leave, Mr. Eshleman returned to work at full capacity, without any restrictions, but about six weeks later, he contracted a severe respiratory infection, requiring him to miss two days of work. Mr. Eshleman thereafter returned to work, at full capacity, but on his second day back, Patrick Industries terminated his employment, offering multiple explanations for its decision. Initially, it informed Mr. Eshleman that his employment was terminated due to “performance issues,” despite the fact that his most recent performance review was “excellent.” Thereafter, Mr. Eshleman was told that he was fired because he had not called out sick during his recent leave for the respiratory infection. Patrick Industries then offered a third reason – “behavioral issues” – as the reason for its decision.
Mr. Eshleman believed that his employer’s stated (and multiple) reasons for his termination were untrue, and instead were pretext for unlawful disability-based discrimination, so he sued, claiming that it terminated his employment because it regarded him as disabled, in violation of the ADA. He argued that Patrick Industries perceived him as suffering from a “long-term or chronic medical condition which would affect his attendance in the future, like it had in the immediate past, due to what they perceived as continuing medical issues.”
The trial court dismissed his case, finding that Mr. Eshleman’s complaint fell within the “transitory and minor” exception to ADA’s “regarded as” prong. Under this exception, employers cannot be held liable for “regarded as” disability discrimination if the disability has an actual or expected duration of less than six months and the disability is minor in nature. The statute expressly defines transitory as less than six months, but, importantly for his case, provides no definition for the term “minor.” The trial court concluded that Mr. Eshleman’s condition was objectively transitory and minor because “the actual or expected duration…lasted less than six months.”
Mr. Eshleman appealed. In its May 29, 2020 opinion, the Third Circuit reversed the lower court’s decision because although the disability at issue indeed was transitory – it lasted less than six months – the exception requires that it be both transitory and minor. The appellate court explained that the lower court erred when it failed to independently analyze whether his condition was or was not “minor,” and instead dismissed his case based solely on its transitory nature. The court’s opinion noted a hypothetical example provided by the EEOC’s guidance involving an individual with a minor back injury, lasting or expected to last for more than six months. According to the EEOC, such a back injury is not “transitory and minor” because although it meets the “minor” prong of the exception, it does not qualify as “transitory” because of its duration. The Third Circuit reasoned that “[t]he converse must also be true; an impairment that is transitory because it lasts less than six months but is objectively non-minor must also fall outside the ‘transitory and minor’ exception.”
As noted above, the term “minor” is not defined in the ADA, and instead of formulating a concrete definition, courts have approached the issue on a case-by-case basis. In this case, Mr. Eshleman underwent lung surgery to remove part of his lung for testing. Although the duration of the impairment was somewhat brief, it was at least plausible that Mr. Eshleman’s lung surgery could be determined to be non-minor, in which case, the exception to the “regarded as” prong of the ADA would not be available to the employer. Accordingly, the Third Circuit held that the trial court improperly dismissed the case because it failed to make a determination regarding the severity of the Mr. Eshleman’s medical conditions.
In so holding, the Third Circuit joined the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin), which came to a similar conclusion in Silk v. Board of Trustees, Moraine Valley Community College. In that case, the Seventh Circuit also acknowledged that an impairment must be both transitory and minor to qualify under the exception, and found that a heart condition that required triple bypass surgery was not facially both transitory and minor.
The Third Circuit’s decision in Eshleman highlights the importance of both steps in the “transitory and minor” analysis by clarifying that the “transitory and minor” exception does not apply unless both characteristics are present. It is important for employers, particularly those located within the jurisdiction of the Third and Seventh Circuits, to be aware that they may not escape liability from “regarded-as” AAD disability claims just because the employee’s medical condition lasted less than six months, and instead, the employee’s condition must also be found to be non-minor. Thus, employers should be cautious and consult with counsel before making employment decisions regarding employees who have experienced serious, even if brief, health conditions in order to avoid claims that the employer regarded them as disabled.