Switch to ADA Accessible Theme
Close Menu
California Employment Lawyer
  • Employment
  • Civil Rights
  • Healthcare
Helping You Navigate Workplace Issues in California

What Is “Regarded-As” Disability Discrimination?


It is against the law for any California employer to discriminate against an employee based on a disability. But is also unlawful for an employer to take an adverse action based on an employee’s perceived disability. This is known in legal parlance as “regarded-as” disability discrimination. It basically covers situations where an employer incorrectly assumes an employee has a disability and takes discriminatory action based on that false belief or contends an employee is unable to do a certain aspect of their job because of a perceived disability.

Ninth Circuit Reinstates Hawaii Discrimination Lawsuit

The U.S. Ninth Circuit Court of Appeals, which has federal appellate jurisdiction over California, recently weighed in with an important decision on the employee’s burden of proof in a regarded-as disability case. The lawsuit, Nunies v. Hie Holdings, Inc., centers on a series of amendments Congress made to the Americans with Disabilities Act (ADA) in 2008 affecting regarded-as discrimination.

The plaintiff in this case worked as a full-time delivery driver for the defendant. In 2013, the plaintiff asked for a transfer to a part-time warehouse position. The plaintiff said he made the request because he sustained a shoulder injury. The defendant claimed the plaintiff wanted to work fewer hours to “focus on his independent side-business.” In any event, the plaintiff’s supervisor initially granted the request, but after learning about the shoulder injury, the company decided to end the plaintiff’s employment instead. The defendant maintained that “budget cuts” eliminated the part-time position the plaintiff wanted.

In 2015, the plaintiff sued his ex-employer under the ADA and Hawaii state law. The defendant moved to dismiss, arguing the plaintiff was not legally disabled, noting his shoulder injury was now healed. The trial court agreed with the defense, noting that the plaintiff could not even pursue a claim for regarded-as discrimination because he “did not come forward with any evidence that [the defendant] subjectively believed that [the plaintiff] was substantially limited in a major life activity.”

The Ninth Circuit, however, ruled this was the incorrect legal standard for assessing the plaintiff’s allegations. Under the 2008 Americans with Disabilities amendments, a plaintiff alleging regarded-as discrimination no longer needs to show that the defendant “subjectively believed that Plaintiff is substantially limited in a major life activity.” In fact, the amended law says just the opposite–an employer is liable for discrimination if it subjects an employee to adverse action “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.”

Here, the Ninth Circuit noted the plaintiff presented evidence that the defendant took an adverse action–rejecting the transfer request–after learning about his shoulder injury. This was enough to support an inference that the plaintiff was forced to quit based on a perceived disability. At the very least, it was enough to send the case to a jury.

Need More Information About Regarded-As Disability Discrimination?

As this case shows, the law with respect to regarded-as disability discrimination is often not well understood. Indeed, many employers may be running afoul of the law without realizing it. If you are an employee who has been fired, demoted, or otherwise mistreated at work based on a perceived medical condition, you should speak with a qualified California employment law attorney as soon as possible.




  • Burbank Map 3500 W. Olive Avenue Suite 300 Burbank CA 91505
* Cathleen Scott is licensed to practice in Florida only.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

No content on this site may be reused in any fashion without written permission from www.employmentrightscalifornia.com

MileMark Media - Practice Growth Solutions

© 2017 - 2022 Scott Wagner & Associates, P.A. All rights reserved.
This law firm website and legal marketing is managed by MileMark Media.