A case from the U.S. Court of Appeals for the Sixth Circuit explains that the recent amendments to the Americans with Disabilities Act (ADAAA) are not to be retroactively applied. In Milholland v. Sumner County Board of Education, 569 F.3d 562 (July 2, 2009), a Tennessee teacher, Sherry Milholland (Milholland), was diagnosed in 2001 with inflammatory arthritis. She performed her job and had no medical restrictions for either a teacher’s or an administrator’s position. She informed no one at work about her arthritis and requested no accommodations.

When Milholland was diagnosed, Benny Bills (Bills) was the principal of Gallatin High School, where Milholland’s husband taught. Although Milholland’s husband discussed her health generally with Bills, he never specified her condition. From time to time, Bills would ask Mr. Milholland about his wife’s health.  

Bills became Director of Schools for the county. In May 2004, Sherry Milholland was promoted to one of two vice-principal positions. Her principal, Mike Brown, was aware of her arthritic condition. Failing to get along with another vice-principal, Rufus Lowe, Milholland met with Bills in 2006 to discuss the conflict.

In this meeting, Milholland alleges, Bills suggested that she return to a teaching position because it would be easier for her with her health issue. Milholland sent a follow-up letter after the meeting, informing Bills that she was “plenty healthy” to do her job. She said her “illness, thanks to a tremendous rheumatologist and new medications, is well under control.”

Brown and Bills met to discuss Milholland and Lowe and decided to solve conflict between them by transferring both Milholland and Lowe. Although Milholland requested another administrative position, she was transferred back to teaching. Bills admitted, during the course of the litigation, that his decision to transfer Milholland back to teaching was related to her health.
 
In August 2006, Milholland filed her discrimination charge with the EEOC and then, after receiving her right-to-sue letter, filed her lawsuit. The district court found that she did not meet the ADA’s definition of disabled in that she was not “impaired” and was not “substantially limited in the life activity of working.”
 
Milholland appealed to the Sixth Circuit and argued that the new, broadened definitions of the ADAAA apply to her case. Because the employer’s conduct—the transfer—occurred before the amendments became effective, the Court of Appeals held that pre-amendment conduct is not controlled by the ADAAA.
 
Milholland’s claim proceeded under the original ADA provisions and ended when the Court found that under the ADA, Milholland did not meet the definition of disabled and that she failed to prove her employer “regarded her” as impaired.
 
What can employers and their managers learn from this case?
 
If the court had applied the ADAAA, Milholland might have won her case if she could have proved the transfer was an adverse action taken because of her illness. Although Milholland’s employer successfully defended this claim, the fact is that the ADAAA makes it easier for a job applicant or employee to bring a disability discrimination claim and prevail.
Before the amendments to the ADA became effective, the ADA prohibited discrimination if a person was regarded as having a disability (i.e., an impairment that substantially limits a major life activity). The ADAAA protects a person who is subjected to discrimination because of an impairment whether or not the impairment limits, or is perceived to limit, a major life activity.
 
Consistent with the ADAAA’s purpose of broad inclusion of disability and making it easier for the disabled to have ADA protection, mitigating measures, like medication or devices, are not to be considered in determining whether a person has a disability. For Milholland, the fact that she has access to medications that keep her arthritis symptoms at bay would not have barred her from being considered as disabled in that aspect under the ADAAA, had the Sixth Circuit applied the amendments retroactively.
 
Under the ADAAA, an employee no longer needs to prove that an employer thought he or she had an ADA disability, but only that the employer took an adverse employment action—here, Milholland’s transfer back to teaching—because the employer thought the employee had an impairment.
 
Under the ADAAA, an employer “regards” an individual as having a disability if the employer takes a discriminatory employment action prohibited by the ADA against the employee or job applicant, based on an impairment the employer believes the individual has. An aggrieved individual no longer has to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity.
 
The “tricky” part of “regarded as” coverage is that it can apply when an employer takes a prohibited employment action (termination, discipline, etc.) based on an individual’s use of a mitigating measure for, or the symptoms of, an impairment, even if the employer is unaware of the underlying impairment. In the EEOC’s example, an employer who refuses to hire someone because she takes anti-seizure medication may face liability even if the employer does not know the impairment for which the medication is being used.
 
There are some employer protections. Employers who merely ask a “regarded as” employee who appears to be having difficulty performing the job because of an impairment if a reasonable accommodation is needed will not be deemed to be “regarding” the employee as having a disability.  
 
Asking an employee for medical information as part of the required reasonable accommodation “interactive process” will not trigger liability where the disability and/or the need for accommodation is not obvious and would not trigger “regarded as” coverage. Employers are also not creating “regarded as” liability if the employer seeks medical information to determine whether someone poses a direct threat to himself or others in the workplace if the employer’s request is based upon a reasonable belief from objective evidence that the individual may pose a direct threat.