Employers and others covered by the ADA, FHA and other laws prohibiting disability discrimination often want to know whether this or that medical condition is a disability. A pair of decisions from the Sixth Circuit, both decided in the last month, explain why there may not be an unequivocal answer.
We’ll start with the older case, Andrews v. Tri Star Sports and Ent. Group, Inc., 2024 WL 3888127, at *3 (6th Cir. Aug. 21, 2024) because it has the more detailed discussion of the issue. The plaintiff indisputably suffered from asthma that had been diagnosed when she was a teenager. It was, according to some of the medical evidence, “well controlled” by taking three medications daily and using an inhaler as needed. “Well controlled” was perhaps an understatement, since as the Court explained:
Andrews cheered competitively, sang and danced in a professional musical production in New York City, and coached cheerleading. While working at Tri Star, Andrews competed in exhibition cheerleading. She also attended 100-200 minute “heavy exertion” CrossFit classes two or three time weekly before suffering a rotator cuff injury. Since her termination from Tri Star, she went on cruises both to Alaska and the Caribbean, traveled to Spain and Orlando, and participated in gymnastics twice a week.
Despite this, during the Covid epidemic she requested that she be permitted to work from home because of her asthma. Not long afterwards she and nine other employees who wanted to work from home were deemed “nonessential” and fired. Andrews claimed both that her employer discriminated against her because of her disability and discriminated by failing to accommodate her disability by letting her work from home.
To prove a disability discrimination claim the plaintiff must first prove they have a disability as defined in the ADA. That means proving (a) a physical or mental impairment that (b) substantially limits one or more major life activities. Everyone agreed that asthma is a physical impairment, so the question was whether Andrews’ asthma substantially limited one or more major life activities. The Court took this definition from the statute and regulations under Title I of the ADA:
A major life activity is “substantially limited” when an individual cannot perform that activity as an average person in the general population could perform it, or if she faces significant restrictions in the condition, manner, or duration under which she can perform the activity.
Andrews’ testimony that she avoided things like “an Alaskan polar plunge and ridge hike” was not enough to persuade either the District Court or the Court of Appeals that there was an issue concerning a substantial limitation that a jury should decide. The limitations she faced because of her asthma were not limitations that were substantial when compared to the average person who, presumably, might also not be able to participate in a polar plunge or ridge hike.
Circuit Judge Clay dissented, arguing that the 2008 ADA Amendments required that disability be determined without taking into account any amelioration provided by medications. Thus, Andrews’ testimony about what she could do while taking her medications and using her inhaler was irrelevant; the question for Judge Clay was what limitations she would face without her medications. Judge Clay believed there was a fact issue about this that required a trial.
The disagreement between the majority and Judge Clay reflects, I think, a normal reaction to the notion that a person who is very fit and very active in ways that require a lot of breathing can really be disabled by a breathing disease. Congress clearly intended to expand the scope of disability in the 2008 ADA Amendments, and our second case may illustrate the more common judicial reaction to asthma as a disability. However, I think the key point made in Andrews v Tri Star is that even under 2008 Amendments an simple physical or mental impairment is not enough – the impairment is not a disability unless it substantially limits a major life activity.
In Root v. Decorative Paint, Inc., 2024 WL 4024426, at *1 (6th Cir. Sept. 3, 2024) a panel consisting of Circuit Judge Clay and two different judges agreed with the District Court that the plaintiff’s asthma was a disability. Not only did they agree, but they found the question was of so little importance to the Court’s analysis that the agreement is relegated to a footnote. They don’t quite say it, but it seems for these judges asthma is a disability almost without question.
Why such different results? In some respects the evidence of disability in Root v Decorative Paint was no more persuasive than that in Andrews v Tri Star. Despite her asthma Root had worked for years for the same company with same problem – exposure to paint fumes – that gave rise to the lawsuit. However, the Court treated this evidence as meaning something completely different. Instead of asking “was Root disabled?” the Court asked “was Root otherwise qualified” for her job. An employee proving employment discrimination based on disability must show they can do the job they were hired for despite their disability or at least with a reasonable accommodation for their disability. When the focus is on the “otherwise qualified” question what the employee can do despite their medical condition is no longer a negative (not really disabled) and becomes instead a positive (can still do the job).
We learn far less in this opinion about the effects of Root’s asthma on her life outside the work place than we do in Andrews v. Tri Star, probably because the district court did not focus on the question of whether she was in fact disabled. I suspect this is common in the post-2008 ADA Amendments era. Judge Clay’s view of what it means to be disabled has been baked into the analysis by many courts and lawyers. If you can name a medical condition like asthma that clearly limits a major life activity (breathing) then the question of whether it substantially limits the activity isn’t very important.
What both cases teach, however, is that whether an individual suffers from a disability is tied to the unique abilities and limitations of that individual, not whether there is a name for their condition. “Asthma” is a disease, but it is not necessarily a disability. The same is true of many other physical or mental impairments. This distinction is especially important in FHA cases where the statute retains a narrow definition of “handicap” (i.e., “disability”) that was not changed by the 2008 ADA Amendments. When an employee, customer or tenant claims to be disabled because they have a disease or medical condition it is at least worth taking a second look at the second part of the definition of disability; that is, whether it substantially limits a major life activity.
Finally, I would suggest that for Andrews whether the plaintiff was disabled did not necessarily determine the outcome of the case. An accommodation is required only when needed for an employee to retain their employment and for an individual as capable as Andrews it seems possible that disabled or not the accommodation she wanted simply was not necessary.
