As many employers know, the ADA Amendments Act of 2008 (ADAAA) broadened the scope of who may be considered disabled under the Americans with Disabilities Act (ADA). Indeed, through the ADAAA, Congress sought to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Specifically, the ADAAA mandated that the term “substantially limits” (with respect to major life activities) is to be construed broadly in favor of expansive coverage. In response, employers were advised to treat most, if not all, reported physical or mental impairments as a possible disability because courts would likely find in favor of the employee.
Despite the ADAAA’s stated policy in favor of expansive coverage of individuals, the Tenth Circuit Court of Appeals recently rendered an opinion that suggests a shift away from the apparent leniency toward employees under the ADAAA.
Diagnosis not enough to prove actual disability
In Russell v. Phillips 66 Co., an appeal from the federal court for the Northern District of Oklahoma, the Tenth Circuit considered whether the company discriminated against Russell in violation of the ADAAA.
To establish disability discrimination, Russell had to prove three elements: (1) he was a disabled person; (2) he was qualified to perform the essential functions of his job with or without a reasonable accommodation; and (3) he suffered discrimination by the employer because of his disability. The court analyzed the first element, and broke it down further. To prove he had an “actual disability” (as compared to being “regarded as” having one), Russell had to (1) have a recognized impairment; (2) identify one or more major life activities; and (3) show that the impairment “substantially limits” on of more of those major life activities.
The company did not dispute that Russell, who had been diagnosed by a doctor as having major depressive order and panic disorder (collectively, “depression”), as having a recognized impairment. Nor did they dispute Russell’s claims that his depression affected the major life activities of sleeping, breathing, concentrating and working. However, the company did dispute that Russell provided any competent evidence to show his depression “substantially limited” his sleeping, breathing, concentrating and working.
Russell attempted to use an affidavit (of his own testimony) to prove the substantial limitation. The court rejected this approach, stating that lay evidence on an issue requiring medical expertise is inadmissible to prevent dismissal of the claim. Indeed, an employee’s statements are admissible to describe his or her injuries and symptoms, but are not admissible insofar as they attempt to provide a diagnosis of his or her condition, or to provide an explanation that a condition causes certain limitations. Those matters must be established by an expert. Thus, Russell’s affidavit was not competent evidence to show substantial limitation.
Russell then presented a doctor’s treatment notes to serve as proof to show substantial limitation as to his sleep. However, the doctor’s notes merely demonstrated that a prior medication Russell took to treat his depression may have caused insomnia, and that medication was quickly discontinued. Nothing in the doctor’s notes stated that Russell’s depression caused his insomnia.
Beyond his affidavit and the doctor’s notes, Russell had no other evidence to show that any given major life activity was substantially limited by his depression. To be sure, Russell’s conclusory statements that he was substantially limited were not enough to keep his claim alive. Instead, Russell should have provided evidence that compared his major life activities to that of the general population in order to support a finding that he was, in fact, substantially limited.
Accordingly, without any competent evidence to show that he was substantially limited in major life activities because of his depression, the Tenth Circuit affirmed dismissal of Russell’s disability discrimination claim.
Ruling considered promising, but vigilance required
This Tenth Circuit opinion is promising because it suggests that employees may no longer receive carte blanche findings of an actual disability from the courts. Employees must be able to prove each element of their disability claim with competent evidence from medical providers; not their own self-serving statements. Moreover, even if an employee has been diagnosed with a recognized impairment, he or she may not be considered to have an actual disability if there are no substantial limitations on any major life activities.
Despite this ruling, employers must remain vigilant when handling reports or complaints of disability discrimination, or requests for accommodation. In this case, the company did a good job of engaging in the interactive process with Russell, requesting the appropriate documentation and clarification when necessary. Employers should never hesitate to contact an employment attorney if issues arise regarding accommodation of a disability.
Russell v. Phillips 66 Company, No. 16-5063 (10th Cir. May 4, 2017).