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Ninth Circuit Expands “Regarded As” Under the ADA

A former delivery driver working for HIE Holdings requested a transfer to a part-time warehouse position. According to Herman Nunies, he was experiencing shoulder pain and wanted a less physical position. He claimed that his request was granted until he mentioned the shoulder pain to his manager. After that, his transfer was canceled and Mr. Nunies claimed he was forced to resign. While HIE denies the shoulder injury was the reason it did not transfer him, the evidence did show an open position at the time of Mr. Nunie’s resignation.
Mr. Nunies filed a lawsuit alleging discrimination under the Americans with Disabilities Act (ADA) but HIE Holdings sought to dismiss the case because he was not disabled. The trial court also ruled he was not “regarded as” having a disability under the 2008 amended ADAAA because there was no evidence that HIE subjectively believed Mr. Nunies was substantially limited in a major activity.
After summary judgment was granted, the Ninth Circuit Court of Appeals reviewed the case. The circuit court noted the ADAAA (the ADA’s 2008 amendment) expanded the scope of “regarded-as.” Under the expansion, Mr. Nunies did not have to prove HIE believed he was substantially limited but rather had to show HIE fired him “because of” its knowledge of the shoulder pain. An employee is “regarded as” disabled because of an actual or perceived physical or mental impairment “whether or not the impairment limits or is perceived to limit a major life activity.” The Ninth Circuit’s interpretation aligns with the First, Fifth, Sixth, and Tenth Circuits. The court also found there was a question of fact as to whether Mr. Nunies was actually disabled because of allegations that he could not lift more than 25 pounds nor could he lift his arm above his chest height.