Under the ADA Amendments Act of 2008 (“ADAAA”), an individual meets the requirement of being “regarded as” having a disability, and thus is protected from discrimination, where his or her employer believes that he or she is substantially limited in a major life activity regardless of whether he or she actually is disabled. Prior to the ADAAA, to prove a “regarded as” claim, a plaintiff in the Ninth Circuit was required to put forth evidence that the employer “subjectively believed” the plaintiff was disabled. However, the U.S. Court of Appeals for the Ninth Circuit recently made clear that the ADAAA no longer requires a plaintiff to proffer such evidence.

In Nunies v. HIE Holdings, plaintiff complained of an injury and asked for less physically demanding work. After the plaintiff’s request initially was approved, he advised one of the decision makers of his injury. A few days later, the employer rescinded its offer to transfer plaintiff and told him that the position no longer existed because of “budget cuts.” At that point, the employer terminated plaintiff’s employment. Possibly establishing pretext, a few days later, the employer advertised an opening for the position that it advised plaintiff no longer existed. The Ninth Circuit reversed the lower court’s grant of summary judgment, holding that it was enough for plaintiff to put forth evidence that he advised his supervisor of his shoulder injury and that his position suddenly was eliminated without requiring evidence of his employer’s subject belief.

Employers are reminded of their obligations under the Americans with Disabilities Act that liability can be imposed where an employer considers and treats an employee as having a disability even if the employee does not in fact have one.