While the 2008 amendments to the Americans with Disabilities Act (“ADA”) made it easier for employees to state a claim that he or she was “regarded as” having a disability, a recent decision from a federal court highlights that even under the amended law, an employee must still establish that the employer actually regarded him or her as having a disability, and that the employer discriminated against the employee because of that perception, in order to state a valid claim.

In the recent case, an Alabama district court rejected an employee’s claim against her employer that provided hospice service to terminally ill patients. The employee, who sold accounts to physicians, claimed the company fired her in violation of the ADA on the basis of her disability, morbid obesity, or alternatively that she had been fired because she was “regarded as” morbidly obese. The employee claimed that in a meeting several weeks prior to her termination, her supervisor made a comment that she “wasn’t even going to discuss the weight issue” with the employee and that this comment meant the employer perceived her as disabled. The employee had no other no other evidence that the company regarded her as disabled, and she insisted that her weight imposed no limitations on her ability to perform her job or engage in everyday activities such as walking longer distances.

The court rejected her claims, observing that the employee’s own unequivocal statements defeated her claim that she was disabled for purposes of the ADA. The court further determined that there was no evidence that the company perceived or regarded her as disabled due to her weight. Being overweight is a physical characteristic, but it is not necessarily a disability (although some states, such as Michigan, may protect obesity as a protected characteristic). In other words, even though there was no doubt that the employee’s supervisor perceived her as overweight, there was nothing to suggest that the company regarded her weight as a limitation on her ability to perform her job, or that the decision to terminate her employment had anything to do with such a perception.

The recent decision reminds employers that employees raising claims that they were “regarded as” disabled must establish that the employer perceived them as having an actual impairment. Though this is a relatively low threshold, employees nevertheless cannot establish a “regarded as” disabled claim for purposes of the ADA by arguing the employer perceived the employee only as having an undesirable physical characteristic. Instead, they must show that the employer perceived the condition as an impairment. For example, a supervisor might observe that an employee who works as a computer programmer has an undesirable nervous tick. Only if that supervisor treats the employee differently because of the tick and that the nervous tick impaired the performance of the employee’s job would he be “regarded as” disabled. Employers should thus keep in mind that while the threshold proof of a “regarded as” disabled claim under the ADA remains threshold, the mere noting of an employee’s physical characteristics is not necessarily the same as regarding an employee as disabled. Nonetheless, as a matter of common sense, managers and supervisors should understand the importance of taking care when discussing physical attributes with any employee.