Dive Brief:

• A federal appeals court has revived a truck driver’s disability discrimination claim, saying a lower court incorrectly applied the Americans with Disabilities Act’s (ADA) "regarded as" prong (Eshleman v. Patrick Industries Inc., No. 19-1403 (3rd Cir. May 29, 2020)).
• William Eshleman took two months of medical leave for a lung biopsy procedure and, six weeks after his return, took two vacation days for an upper respiratory infection, according to court documents. Following that second return, the employer fired him and offered shifting reasons for his termination, Eshleman said.
• He sued, alleging the company regarded him as an individual with a disability and fired him on that basis. A federal district court dismissed his claim, finding that his impairment was not eligible for coverage under the law’s "regarded as" prong because it was "transitory and minor" — an exception added in recent years. On appeal, however, the 3rd Circuit reversed, ruling that while the lower court correctly concluded Eshleman’s impairment was transitory, it failed to consider whether it also was minor.

Dive Insight:

The ADA provides protection from employment discrimination to employees and applicants who: (1) have a disability; (2) have a record of a disability; or (3) are regarded as having a disability.

When Congress made various amendments to the law in 2008, it added an exception to the third prong: impairments that are "transitory and minor." As the Eshleman court pointed out, "whether an impairment is 'minor' is a separate and distinct inquiry from whether it is 'transitory.'"

While the opinion may provide a roadmap for employer defenses in certain ADA claims, employment experts generally recommend that employers avoid wading into the details of an employee’s impairment. With the ADA Amendments Act, Congress drastically expanded the ADA’s definition of disability, aiming to reduce courts’ extensive analysis of that definition and shift decisionmakers' attention to an examination of whether discrimination occurred.

This means that employers today often are advised to focus on nondiscrimination, including accommodation. For HR, that can mean leading anti-bias training, applying policies evenly and ensuring that a company participates in the ADA’s interactive process in good faith.