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Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law.

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Chapter 13 - Disability Discrimination
13.200 Disability
13.270 Requirement that disability be permanent or long-term

13.272 Case law

New law

Under the ADA Amendments Act of 2008, the definition of "regarded as disabled" does not apply to "impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. See, 42 U.S.C. 12102(3)(B). 

Old law

Supreme Court

In Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 196 (2002), the court explained:

In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: "[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment." 1630.2(j)(2)(i)-(iii).

1st Circuit

In Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 10 (1st Cir. 2005), the court explained:

[The requirement that the impairment be permanent or long-term] may encompass conditions that are "potentially long-term, in that their duration is indefinite and unknowable," Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 31 (1st Cir. 2000) (internal quotation marks omitted), but not those that are brief or foreseeably temporary, Carroll v. Xerox Corp., 294 F.3d 231, 240-41 (1st Cir. 2002) (three-month medical leave for chest pains), Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997) (five-week leave from work and four-month activity restriction because of a depressive attack).

. . . .

Until the Supreme Court fine-tunes its interpretation, it will be unclear how lower courts should deal with periods between, say, 6 and 24 months.

2d Circuit

In Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir. 1999), the court explained that an impairment that resulted in an inability to work for 3.5 months was insufficient to constitute a substantial limitation:

Because this court has found a temporary impairment of seven months, by itself, "too short [in] duration . . . to be 'substantially limiting,'" Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998), cert. denied, 119 S.Ct. 1253 (1999), Adams has failed to make out a claim that he was disabled within the meaning of the ADA.

3d Circuit

In Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751, 765 (3d Cir. 2004), the court explained:

As a matter of law, a "transient, nonpermanent condition," McDonald v. Commonwealth, 62 F.3d 92, 94-97 (3d Cir. 1995), or "a temporary, non-chronic impairment of short duration," Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002), it is true, fall short of substantially limiting an individual in a major life activity. Accordingly, the EEOC has suggested, for example, that broken limbs, sprained joints, concussions, appendicitis, and influenza, being impairments of a temporary nature "with little or no long term or permanent impact," cannot as a matter of law substantially limit an individual in a major life activity. See EEOC Interpretive Guidance, 29 C.F.R. Pt. 1630, App. 1630.2(j). However, Williams does not need to show that his disability is permanent; instead, under the EEOC regulations, the "nature and severity" of Williams's impairment and its "duration or expected duration," along with the "permanent or long term impact" of that impairment, are factors to be considered in determining whether an individual is substantially limited in a major life activity. 29 C.F.R. 1630.2(j)(2).

4th Circuit

In Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 468-69 (4th Cir. 2002), the court found that a nine-month incapacity from back surgery was insufficient to establish a permanent impairment. In reaching this conclusion, the court explained:

   Prior precedent of this court likewise indicates that temporary impairments usually do not fall within the ADA's definition of "disability." In Halperin, we stressed that "it is evident that the term 'disability' does not include temporary medical conditions, even if those conditions require extended leaves of absence from work." 128 F.3d at 199 (internal citations omitted). And several of our sister circuits have taken a similar approach with respect to temporary impairments under the Act. See, e.g., Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998) (holding that plaintiff's inability to work while recovering from wrist and elbow surgery did not qualify as a disability under the ADA and noting that "the ADA requires permanent or long-term impairments"); Heintzelman v. Runyon, 120 F.3d 143, 144-45 (8th Cir. 1997) (same with regard to a temporary back injury); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (same with regard to recovery from ankle injury and surgery); McDonald v. Pennsylvania, 62 F.3d 92, 95-96 (3d Cir. 1995) (same with regard to recuperation from abdominal surgery); Evans v. City of Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (same under the Rehabilitation Act of 1973 with respect to inability to work due to knee surgery).

   However, while the presumption exists that temporary impairments do not qualify as disabilities under the ADA, temporary conditions still require a case-by-case evaluation under the Act. See, e.g., Toyota, 122 S. Ct. at 692; Sutton, 527 U.S. at 483; Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59-60 (4th Cir. 1995). Temporary disabilities present a spectrum of cases and at some point the duration of an impairment could be so long that it cannot properly be characterized as temporary.

In Halperin v. Abacus Technology Corp., 128 F.3d 191, 200 (4th Cir. 1997), the Fourth Circuit explained that a two month impairment was not substantially limiting.

7th Circuit

In Anders v. Waste Management of Wisconsin, 463 F.3d 670, 677 (7th Cir. 2006), the court explained that a panic disorder that lasted six days was not a disability:

As the Supreme Court ruled in Toyota Motor Mfg., Ky. v. Williams, a short-term impairment such as this does not rise to the level of disability as defined by the ADA. See 534 U.S. 184, 195 (2002). Instead, Anders must have demonstrated that the impairment limited a major life activity on a permanent or long-term basis. Id. at 195, 198; see also Ogborn v. United Food and Commercial Workers Union, 305 F.3d 763, 767-68 (7th Cir. 2002) (holding an eight week bout of depression was not a disability as defined by the ADA).

8th Circuit

In Pittari v. American Eagle Airlines, Inc., 468 F.3d 1056, 1063 (8th Cir. 2006), the court explained:

Under the ADA, a temporary impairment with little or no long-term impact does not constitute a disability. 29 C.F.R. 1630.2(j)(2)(ii)(iii). Rather, "[t]he impairment's impact must . . . be permanent or long term." Williams, 534 U.S. at 198.

9th Circuit

In Sanders v. Arneson Products, 91 F.3d 1351, 1354 (9th Cir. 1996), cert. denied, 117 S. Ct. 1247 (1997), the Ninth Circuit held that a three and one-half month impairment with minimal residual effects was not substantially limiting.

10th Circuit

In Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1290 (10th Cir. 2000), the court noted:

The ADA was not designed to apply to temporary conditions. See Bolton v. Scrivner, Inc., 36 F. 3d 939, 942, 943 (10th Cir. 1994).

However, in Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir. 1998), the court explained that an impairment may be substantially limiting before a permanent disability rating is issued by a treating physician. In reaching this conclusion, the court explained:

Although "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities," 29 C.F.R. pt. 1630 app., 1630.2(j) (emphasis added), "an impairment does not necessarily have to be permanent to rise to the level of a disability. Some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities," EEOC, Interpretive Manual (1995), reprinted in 2 EEOC Compliance Manual 902.4(d), at 902-30 (BNA 1997) ("EEOC Compliance Manual").

11th Circuit

In Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir. 1999), the court explained:

   To establish that an employer regarded an employee as "disabled" and thus covered by the Rehabilitation Act, a plaintiff must first introduce substantial evidence that the employer regarded him as having a permanent or long-term impairment. E.L. Hamm & Associates, 100 F.3d at 912-13. A temporary inability to work while recuperating from surgery is not such a permanent or long-term impairment and does not constitute evidence of a disability covered by the Act. Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir.1998) (citations omitted); Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir.1997) (inability to work while recovering from surgery not evidence of permanent impairment); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.1996) (surgery and recovery not a disability); McDonald v. Pennsylvania, Dep't of Public Welfare, 62 F.3d 92, 96-97 (3d Cir.1995) (recuperation after abdominal surgery not disability); Evans, 861 F.2d at 852-53 (knee injury that required surgery not disability).

 

 



 

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