Deciphering disability.

Judicial interpretations have narrowed the definition of disability under federal law, making it harder to prove discrimination. Use these strategies to strengthen your client's case and make sure justice doesn't get lost in the lingo.

**********

The Americans with Disabilities Act (ADA) passed with great promise more than a decade and a half ago, but adverse court rulings have substantially limited its definition of "disability," minimizing the act's impact. Congress has proposed legislation aimed at clarifying the definition's scope, but until it passes, you can take several measures to improve your client's chance of proving that he or she qualifies for ADA protection.

"I now lift my pen to sign this Americans with Disabilities Act and say: Let the shameful wall of exclusion finally come tumbling down." With those words, then-President George H.W. Bush signed the ADA into law in what he described as a "splendid scene of hope." (1) The historic law was hailed as "the world's first comprehensive declaration of equality for people with disabilities," and it passed with overwhelming bipartisan support. (2)

The ADA was intended to be comprehensive in scope and to fix problems caused by judicial interpretations of its predecessor statute, [section] 504 of the Rehabilitation Act of 1973--which applies only to employers and organizations that receive financial assistance from any federal department or agency. Despite other problems with judicial construction, Congress noted that [section] 504's definition of "disability"--an impairment that substantially limits a major life activity, having a record of a substantially limiting impairment, or being regarded as having a substantially limiting impairment had been broadly and properly construed by the courts, and it retained that definition in the text of the ADA.

But judicial interpretations have since frustrated the ADA's promise, especially with respect to eligibility under the act. Two Supreme Court cases exemplify the problem.

In 1999, the Supreme Court ruled in Sutton v. United Air Lines, Inc., that, when determining whether a person has a disability, courts must consider the individual in light of mitigating measures he or she uses, like medication or prosthetic devices. (3) The ruling contradicted congressional intent when the ADA was passed, agency guidance, and the holdings of most cases brought under both the ADA and [section] 504.

Three years later, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Court ruled that the terms "major life activity" and "substantially limit[ing]" in the ADA's disability definition "need to be interpreted strictly to create a demanding standard" for proving disability. (4) This was a marked shift from courts' traditionally broad interpretations of other civil rights statutes on which the ADA was based--including Titles II and VII of the Civil Rights Act of 1964.

The string of cases that followed in the wake of the restrictive holdings in Sutton and Toyota Motor conflicted with Congress's intent when the ADA was passed. For example, according to bipartisan legislative analysis, it is clear that Congress intended to extend ADA protection to people with epilepsy and diabetes, (5) but many courts have found that such conditions are not disabilities under the law. (6) Congress also intended the ADA to cover people with a history of cancer, heart disease, or mental illness, (7) but their claims, too, have been frequently rejected. (8) The Texas assistant attorney general was even able to convince a trial court and an appeals court that, given Sutton, a person with only one leg did not have an ADA-qualifying disability, although this decision was later reversed. (9)

The problem is not confined to employment cases. Since all sections of the ADA share the same disability definition, cases involving access to services from government agencies or private businesses have also been negatively affected. Other federal statutes, such as the Fair Housing Act, use the ADA's disability definition, and many state laws have adopted a substantially similar definition; they all turn to ADA case law for interpretation.

The National Council on Disability (NCD), which is responsible for advising and reporting to the president and Congress on ADA matters, has concluded that the law needs to be amended "to remove conceptual and interpretational baggage that has been attached to various elements of the ADA. (10) The NCD has drafted corrective legislation that ad dresses many of the problems created by judges. (11) Also, Congress has shown bipartisan support for a law that, at a minimum, would clarify the definition of disability. In September 2006, Reps. James Sensenbrenner Jr. (R-Wis.) and Steny Hoyer (D-Md.) introduced a bill that would do this. (12) In support of it, Sensenbrenner said:

   The landmark Americans with Disabilities Act has helped ensure
   American citizens no longer live in isolation but live as
   independent, self-sufficient members of our communities. In recent
   years, however, the Supreme Court has slowly chipped away at the
   broad protections of the ADA and has created a new set of barriers
   for disabled Americans. This bipartisan legislation will enable
   disabled Americans utilizing the ADA to focus on the discrimination
   that they have experienced rather than having to first prove that
   they fall within the scope of the ADA's protection. (13)

Hoyer noted that "the point of the law is not disability; the point is discrimination." (14) Congress has yet to act on the proposed bill.

If judicial interpretations have made it so difficult to prove disability discrimination, why should plaintiff lawyers take ADA cases? First, because we have a duty to seek justice for our clients. Second, because the cases can succeed despite antiplaintiff rulings. (15)

Meeting the definition

Although the most contested issue in discrimination cases brought under Title VII or the Age Discrimination in Employment Act is causation--whether the employer took adverse action against a plaintiff who was a member of a protected class---ADA cases usually turn on coverage, not causation. Therefore, you should start your ADA case preparation by carefully analyzing how you will prove that your client has a disability under the statute's definition.

Don't assume that you can prove a disability, no matter how significant it is, primarily through a medical diagnosis. This will, at most, establish impairment. You must still map out how you will prove that the impairment substantially limits a major life activity.

In Toyota Motor, the Supreme Court suggested that a major life activity is something that is "central to daily life." Yet, most courts still follow the Equal Employment Opportunity Commission's (EEOC) guidance in defining major life activities as "those basic activities that the average person in the general population can perform with little or no difficulty," and which include but are not limited to "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." (16)

Major life activities are not limited to aspects of a person's life that have a public, economic, or daily character, or activities that everyone experiences, and they do "not turn on personal choice." (17) Human reproduction, for example, is a major life activity even though many people choose not to have children. Recent case law also suggests that bodily functions may be considered major life activities. (18)

What about working? Although the Supreme Court has not yet recognized working as a major life activity, every circuit court that has considered the issue to date has done so. (19) However, you should consider working as the major life activity "of last resort" because it requires a heavier burden of proof of substantial limitation.

Consider several factors when trying to prove at your client's major life activity has been substantially limited.

Keep it personal. Courts assess disabilities case by case. They shouldn't simply look to other cases involving similar impairments. (20) Also, the disability analysis is not about what a plaintiff can do, but what he or she cannot do, or is substantially limited in doing. A person who uses a wheelchair, for example, may be able to do many daily activities, including performing highly skilled work; participating in outdoor activities or sports; attending movies, concerts, sporting events, or other functions; doing housework or cooking; and maintaining close relationships with family and friends. (21)

Emphasize limitations, not utter inabilities. Most courts follow the EEOC regulations that state that a limitation is substantial if it either prevents a person from performing a major life activity or significantly restricts the "condition, manner, or duration" that the person can perform the activity. (22)

Keep in mind that the ADA "'addresses substantial limitations on major life activities, not utter inabilities.'" (23) Courts should compare the way the person who has impairment is able to perform an activity, if at all, with the way others who do not have a disability can.

For example, "an average person ... thinks nothing of getting dressed, whether or not the task includes buttons, zippers, laces, or sleeves." (24) But for people with certain disabilities, dressing poses significant challenges, some of which they can overcome with accommodations or assistance from others, and many of which they cannot. "What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA." (25)

Minimize mitigating measures. After Sutton, you must consider mitigating measures, but the concept has its own limitations. First, the disability determination is based on the time of the discriminatory action. (26) Past mitigation does not matter, and courts should not speculate about possible mitigating measures in the future. (27)

Second, not everything a person uses to compensate for an impairment is a mitigating measure. Using a wheelchair may improve a person's mobility, for example, but it does not improve his or her ability to walk or run. (28)

Third, reasonable accommodations are not mitigating measures. (29) Last, a court cannot consider mitigating measures if a plaintiff's employer prevents their use. (30)

Delve into details. Don't skimp on evidence. Details can mean the difference between proving a substantial limitation and not proving it. In one case, the Seventh Circuit found sufficient evidence that diabetes substantially limited a plaintiff's ability to eat because he described the complex balancing act he followed to manage his condition--which required much more than simple dietary restrictions. Plaintiffs with diabetes cannot merely cite such cases, however, without demonstrating how the condition affects their own ability to eat. (31)

Consider duration. Limitations do not necessarily have to be permanent to rise to the level of a disability. They can be long-term or potentially long-term--meaning they are expected to last at least "several months." (32)

Compare and contrast. Consider introducing evidence of the average person's abilities. (33) You can also draw useful comparisons to the examples of disabilities found in the EEOC's online ADA guides; look for examples that describe disabilities with symptoms or durations similar to, or less severe than, your client's limitations.

Use other disability determinations. Demonstrating disability eligibility under other benefit programs is not dispositive evidence, but it "can be relevant and significant evidence in showing that a disability exists for ADA purposes." (34) These programs include Social Security or Supplemental Security Income (SSI) disability benefits and employer-sponsored long-term disability plans.

Tap into resources. Make full use of disability-related resources. Health advocacy organizations, for example, have position papers, sample briefs, helpful contacts, and extensive access to experts. The American Diabetes Association has compiled perhaps some of the most sophisticated legal advocacy resources, and the Epilepsy Foundation is also creating valuable material for attorneys. (35)

Seek help from legal organizations that have expertise in this area. In addition to AAJ resources, (36) consult those of the National Employment Lawyers Association, (37) your state's "protection and advocacy system, " (38) or, for cases involving psychiatric disabilities, the Bazelon Center for Mental Health Law. (39)

Substantial limitations at work

Just because a case involves employment discrimination does not mean that you have to focus on the major life activity of working. (40) It is typically the last activity to consider because proving a substantial limitation in working carries a heavier burden. It requires showing that an employee is

   significantly restricted in the ability to perform either a class
   of jobs or a broad range of jobs in various classes as compared to
   the average person having comparable training, skills, and
   abilities. The inability to perform a single, particular job does
   not constitute a substantial limitation in the major life activity
   of working. (41)

But don't completely avoid addressing this major life activity. Working may be the only major life activity that is substantially limited; in other cases, it may be the easiest to prove. A person whose seizures are not severe or frequent enough to prove a substantial limitation in many other activities, for example, may still be able to prove a disability by showing that he or she is unable to work in the broad range of jobs that require driving a vehicle.

Vocational expert testimony is often the key to proving a substantial limitation in working. Although the plaintiff's burden is minimal to show the number and types of jobs in which he or she has a substantial limitation, (42) sound, detailed expert testimony can establish the class and quantity of jobs within the plaintiff's local geographical area that he or she is significantly restricted from performing. (43)

In one case, for example, an employer alleged that a person with hepatitis C could not perform any kitchen jobs, or others that involved the possibility of laceration. The plaintiff's vocational expert explained how, if true, that would prohibit the plaintiff from working in an entire "class of jobs." (44) Make sure, however, that any vocational testimony is factually supported. (45)

Alternative theories

If your client does not have an actual disability according to the ADA's definition, you might be able to show that he or she has a "record of" a past disability (46) or is perceived as having a disability. (47) A finding of either would allow the client to qualify for protection under the ADA. (48) Also examine whether relevant state laws have a broader definition than the ADA; many do.

Even without a showing of disability, the client may still have a viable ADA claim. A plaintiff is not required to be a "qualified individual with a disability" to prove retaliation. (49) Thus, if a client sought accommodation from an employer on the belief that he or she had a disability and was penalized for that, he or she might have a viable claim for retaliation.

The ADA also protects employees--with or without disabilities--from coercion, intimidation, threats, and interference for exercising or enjoying any rights under the ADA or for helping or encouraging others to do so. (50)

The plaintiff without a disability may have a viable "association" claim--one that is based on an adverse action taken against an employee as a result of his or her association or relationship with a person who has a disability. (51)

Finally, employers also may be held liable for violating the ADA, even without any showing of disability, if they ask job applicants or employees certain health-related questions or require them to submit to improper medical examinations. (52)

The need for the ADA is evident in the bipartisan push in Congress to preserve its essence and the strong public support it has maintained over the years. Yet the statute's goals have been frustrated by judicial interpretation; a legislative "fix" to counter the erosion of those goals is long overdue.

You don't have to wait for Congress to take definitive action to strengthen your client's disability discrimination case; early and strategic planning will help you prove your client is a person with a disability entitled to the ADA's protections.

RELATED ARTICLE: Prepare your disability discrimination case with documents from the AAJ Exchange.

The AAJ Exchange has resources to help members prepare cases involving workplace disability discrimination. For more information, visit www.justice.org/ exchange or call [phone].

Bishop v. CMI Corp. The plaintiff's complaint, both parties' summary judgment motions, the court's orders on those motions, and the court's posttrial order in a case alleging violation of the ADA where an employee with Tourette's syndrome was terminated. (No. LR2755)

Bremer v. Evans. The plaintiff's complaint, pretrial statement, and memorandum of law in opposition to the defendant's motion for directed verdict; the defendant's pretrial statement, motion for summary judgment, and memorandum of law in support of the defendant's motion for directed verdict; and the verdict form in a case alleging that the defendant failed to accommodate an employee's disability. (No. LR4259)

Freemon v. Foley. The plaintiff's complaint, the defendant's motion for partial summary judgment, the plaintiff's response, and the court's order holding that supervisors may be individually liable for Family and Medical Leave Act violations. (No. LR2694)

Georgeff v. Catholic Knights Insurance Society. The plaintiff's pretrial brief arguing that an insurance salesman was an employee under the ADA, and the verdict form in a case alleging an employer violated the act by firing a salesman because of his daughter's disability. (No. LR2810)

Johnson v. Oregon The parties appellate briefs in a case in which the court held that neither application for nor receipt of disability benefits automatically barred an employee from suing her employer under the ADA. (No. LR3277)

Lyons v. Legal Aid Society. The plaintiffs' briefs in a case holding that federal disability laws may require an employer to provide a worker with a parking space near her office. (No. LR2641)

Meeker v. City of Chicago. The settlement agreement and consolidated pretrial order in a case alleging ADA violations by a worker who was denied promotions. (No. LR3607)

Scott v. Tidelands Community Services Board. The plaintiff's complaint and motions in limine; the parties' statement of facts and law, summary judgment briefs, and posttrial motions; the treating physician's deposition; and the trial court's jury instructions and order in a case alleging that a human services technician was discharged for filing and settling an ADA claim. (No. LR3061)

Trowbridge v. Scranton Artificial Limb Co. The court's opinion and the parties' briefs in a case holding that a worker who received Social Security disability insurance benefits was not estopped from bringing a discriminatory termination claim under the Pennsylvania Human Rights Act. (No. LR3614)

RELATED ARTICLE: Have you updated your e-directory lately?

With a click of your mouse and an Internet connection, you can update your AAJ Membership e-Directory monthly. The directory travels with you on your laptop and lets you search for colleagues by location, practice section, member category, and even first name. You can also connect directly to members' e-mail and Web sites. Need help? Call AAJ Membership at [phone] or [phone], ext. 611, or visit www. justice.org/edirectory.

Notes

(1.) Remarks of President George H.W. Bush at the Signing of the Americans with Disabilities Act, www.eeoc.gov/ada/bushspeech.html.

(2.) Id.

(3.) 527 U.S. 471,482-89 (1999).

(4.) 534 U.S. 184, 197 (2002).

(5.) See e.g. H.R. Rpt. 101-485(II) at 52 (May 15, 1990) (reprinted in 1990 U.S.C.C.A.N. 303,334) ("[P]ersons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the first prong of the definition of disability, even if the effects of the impairment are controlled by medication.").

(6.) See Natl. Council on Disability, The Role of Mitigating Measures in the Narrowing of the ADA's Coverage nn. 6-8, 10, 17 (Mar. 17, 2003), www.ncd.gov/newsroom/publications/2003/ mitigatingmeasures.htm.

(7.) See e.g. H.R. Rpt. 101-485(II) at 52-53 (May 15, 1990) (reprinted in 1990 U.S.C.C.A.N. 303, 334-35) ("Discrimination on the basis of such a past impairment would be prohibited under this legislation. Frequently occurring examples ... are persons with histories of mental or emotional illness, heart disease, or cancer....").

(8.) See Natl. Council on Disability, supra n. 6, at nn. 9, 11-14.

(9.) See Little v. Tex. Dept. of Crim. Just., 147 J S.W.3d 421 (Tex. App. 2003), rev'd, 148 S.W.3d 374 (Tex. 2004).

(10.) Nat. Council on Disability, Righting the ADA [section] III, at 99 (Dec. 1, 2004), www.ncd.gov/ newsroom/publications/2004/pdf/righting_ ada.pdf.

(11.) The ADA Restoration Act of 2004: A Draft Bill, www.ncd.gov/newsroom/publications/ 2004/righting_ada.htm#ada2.

(12.) H.R. 6258, 109th Cong. (Sept. 29, 2006).

(13.) News Advisory, Sensenbrenner/Hoyer Introduce Bipartisan Legislation Restoring Americans with Disabilities Act Protections (Sept. 29, 2006), http://judiciary.house.gov/media/pdfs/ ADAbillintro92906.pdf.

(14.) Id.

(15.) See Jeffrey A. Van Detta & Dan R. Gallipeau, Judges and Juries: Why Are So Many ADA Plaintiffs Losing Summary Judgment Motions, and Would They Fare Better Before a Jury?, 19 Rev. Litig. 505 (2000).

(16.) 29 C.F.R. [section] 1630.2(i) (2007).

(17.) Bragdon v. Abbott, 524 U.S. 624, 638-39, 641 (1998).

(18.) See e.g. Heiko v. Colombo Says. Bank, F.S.B., 434 F.3d 249, 255-56 (4th Cir. 2006), cert. dismissed, 127 S. Ct. 34 (2006); Workman v. Frito-Lay, Inc., 165 E3d 460, 467 (6th Cir. 1999); Snyder v. Norfolk S. Ry. Corp., 463 F. Supp. 2d 528,536-37 (E.D. Pa. 2006). For an expansive list of major life activities, see e.g. Natl. Lab. Comm. of the Natl. Laws. Guild, The Employee & Union Member Guide to Labor Law vol. 2, [section] 7:36 nn. 11-56.50 (Robert H. Gibbs & Paul Alan Levy eds., Clark Boardman Callaghan 1981 & Supp. 2007).

(19.) See e.g. Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sinkler v. Midwest Prop. Mgt. Ltd. Partn., 209 F.3d 678, 684 n. 1 (7th Cir. 2000); EEOC v. R.J. Gallagher Co., 181 F.3d 645,654-55 (5th Cir. 1999); Davoll v. Webb, 194 E3d 1116,1134 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999).

(20.) See Emory v. AstraZeneca Pharms. LP, 401 F.3d 174,181-82 (3d Cir. 2005); McInnis v. Alamo Community College Dist., 207 F.3d 276,280-81 (5th Cir. 2000).

(21.) See e.g. Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032,1038-39 (D. Ariz. 1999).

(22.) 29 C.F.R. [section] 1630.2(j) (1).

(23.) Heiko, 434 F.3d at 257 (quoting Bragdon, 524 U.S. at 641).

(24.) Emory, 401 F.3d at 181; see also Battle v. United Parcel Serv., Inc., 438 F.3d 856, 862 (8th Cir. 2006) (sufficient evidence that plaintiff's depression and anxiety substantially limited his ability to think and concentrate, based on psychiatrist's testimony, corroborated by plaintiff and his wife, that despite counseling and medication, plaintiff "thinks and concentrates at a laborious rate, has to spend significant extra time working on projects, mad cannot think and concentrate about matters unrelated to work").

(25.) Emory, 401 F.3d at 181.

(26.) See e.g. Cash v. Smith, 231 F.3d 1301, 1306 n. 5 (11th Cir. 2000); Kocsis v. Multi-Care Mgt., Inc., 97 F.3d 876, 884 n. 13 (6th Cir. 1996).

(27.) See e.g. Finical, 65 F.Supp. 2d at 1037-38 (rejecting argument that plaintiff would benefit from hearing aids, because although the plaintiff had tried them in the past, she no longer used them). Although there is contrary authority, it has been criticized. E.g. Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 595-96 (D. Md. 2000) (asthma did not substantially limit any major life activity since it was correctable by medication that the plaintiff refused to take), aff'd, 230 F.3d 1354 (4th Cir. 2000).

(28.) Sutton, 527 U.S. at 488; see also Finical 65 F. Supp. 2d at 1041-42 (lip-reading and a telephone amplification device do not mitigate an employee's deafness because, although they improve the employee's ability to communicate, they do not improve the ability to hear).

(29.) Finical, 65 F.Supp. 2d at 1037-38 & n. 4.

(30.) See e.g. Davis v. Utah St. Tax Commn., 96 F. Supp. 2d 1271, 1287 (D. Utah 2000).

(31.) Compare Lawson v. CSX Transp., Inc., 245 F.3d916, 924 (7th Cir. 2001) (sufficient evidence that even with insulin, plaintiff's diabetes required much more than "simple dietary restrictions" and was a disability), with Burrell v. Cummins Great Plains, Inc., 324 E Supp. 2d 1000, 1013-14 (S.D. Iowa 2004) (insufficient evidence of disability; plaintiff suggested his eating was "affected" by diabetes, but simply discussed other cases in which diabetes has been found to substantially limit eating without attempting to show how the facts in those cases were similar to his situation).

(32.) Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998) (quoting the EEOC Compliance Manual [section] 902.4(d)), cert. denied, 526 U.S. 1144 (1999).

(33.) Some cases appear to require such evidence. See e.g. Nuzum v. Ozark Automotive Distribs., Inc., 432 F.3d 839,848 (8th Cir. 2005) ("Assuming for the sake of argument that sleeping is a major life activity, Nuzum must show that his sleeping patterns are significantly different from the rest of the population's ... and he has not done so."). Others do not, e.g. EEOC v. Sears, Roebuck & Co., 417 F.3d 789,802 (7th Cir. 2005) (reasonable jury could conclude, based on evidence and its own life experience, that plaintiff's severe difficulty in walking more than one city block was a substantial limitation compared to walking that most people do daily).

(34.) Lawson, 245 F.3d at 927. Note, however, that applications for disability benefits can raise judicial estoppel challenges. See Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795,806 (1999).

(35.) The American Diabetes Association materials are online at www.diabetes.org/advocacyand-legalresources/attorneymaterials.jsp. The Epilepsy Foundation has a collection of cases, opinions, briefs, pleadings, and a variety of other materials online at www.epilepsyfoundation. org/advocacy/legal/country.cfm. It also has the Jeanne A. Carpenter Epilepsy Legal Defense Fund, with information and other resources to support attorneys, at http://epilepsyfoundation. org/epilepsylegal/.

(36.) Resources include AAJ's Employment Rights Section (www.justice.org/sections/ employmentrights) and the Exchange (www. justice.org/exchange), which can be searched for disability-related documents.

(37.) NELA maintains a Disability Rights Committee Web page, and an ADA Advisory Panel that consults with practitioners: www.nela.org/NELA/ index.cfm?event=showPage&pg=committeesDR.

(38.) Each state and territory has a protection and advocacy (P&A) system funded by Congress to protect and advocate for the legal rights of people with disabilities. Some do more litigation than others, and their areas of specialty vary.You can search for your state's P&A at www.ndrn.org.

(39.) The Bazelon Center has a variety of materials on ADA Resources for Lawyers and Advocates at www.bazelon.org/issues/disabilityrights/ resources/index.htm, including the List of Limitations on Major Life Activities, www. bazelon.org/ issues/disabilityrights/resources/lmtslist.htm.

(40.) Toyota Motor Mfg., Ky., Inc., 534 U.S. at 199-200.

(41.) 29 C.F.R. [section] 1630.2(j)(3)(i); see also 29 C.F.R. [section] 1630.2(j) (3) (ii) (setting out some of the factors that may be considered).

(42.) See e.g. EEOC v. Heartway Corp., 466 F.3d 1156, 1164 (10th Cir. 2006).

(43.) See e.g. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1251 (10th Cir. 2005); Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1100-01 (S.D. Ga. 1995); Scharff v. Frank, 791 F. Supp. 182,187 (S.D. Ohio 1991).

(44.) Heartway Corp., 466 F.3d at 1167.

(45.) See e.g. Kellogg v. Union P.R.R. Co., 2000WL 766281 at *5 (D. Neb. Jan. 28, 2000) (vocational experts' contentions were conclusory and offered no factual basis for them), aff'd on other grounds, 233 F.3d 1083 (8th Cir. 2000).

(46.) The "record of" provision is intended to cover people with a history of a substantially limiting impairment, including those who have recovered from such impairment. In many cases, a person may have a record of a disability during the period before he or she began using mitigating measures. For a list of the authorities describing the types of evidence courts have relied on in establishing a record of a substantially limiting impairment, see, for example, Natl. Lab. Comm. of the Natl. Laws. Guild, supra n. 18, at [section] 7:42 n. 2.

(47.) A person is regarded as having a disability if the person (1) does not have an impairment, but is mistakenly regarded as having an impairment that substantially limits a major life activity; (2) has an impairment that is not in fact substantially limiting, but which is mistakenly regarded as substantially limiting; or (3) has an impairment that is substantially limiting simply because of the attitudes of others toward the impairment. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003), cert. denied, 540 U.S. 815 (2003); see also 29 C.F.R. [section] 1630.2 (1); 29 C.F.R. pt. 1630 App. [section] 1630.2 (1). Case law examples of successful evidence of perceived disability are set out in Natl. Lab. Comm. of the Natl. Laws. Guild, supra note 18, at [section] 7:43 nn. 10-37.

(48.) 42 U.S.C. [section] 12102(2)(B) & (C) (2000).

(49.) See e.g. Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 786 (3d Cir. 1998); Matthews v. Am. Sts. Ins. Co., 1997 WL 752442 at *2 (D. Kan. Oct. 21, 1997); EEOC Compliance Manual [section] 8-I(B) n. 7 (May 20, 1998), www.eeoc.gov/policy/ docs/retal.html. Compare Talanda v. KFC Natl. Mgt. Co., 140 F.3d 1090, 1096-97 (7th Cir. 1998) (plaintiff must show reasonable good-faith belief that he had a disability and was entitled to accommodation; no such showing here), cert. denied, 525 U.S. 869 (1998).

(50.) See Selenke v. Med. Imaging of Colo., 248F.3d 1249, 1264 (10th Cir. 2001) (plaintiff need not prove an actual disability; a reasonable, good faith belief that the statute has been violated suffices); Conley v. United Parcel Serv., 88 F. Supp. 2d 16, 20 (E.D.N.Y. 2000).

(51.) 42 U.S.C. [section] 12112(b) (4) (2000); 29 C.F.R. [section] 1630.8 (2006); EEOC Compliance Manual [section] 2-II(A) (4) (b) (May 20, 1998), www.eeoc.gov/ policy/docs/threshold.html.

(52.) Cossette v. Minn. Power & Light, 188 F.3d 964, 969-70 (8th Cir. 1999) (relating to medical exams of current employees); Mack v. Johnstown Am. Corp., 1999 WL 304276 (W.D. Pa. May 12, 1999) (involving pre-employment inquiries).

BRIAN EAST is a senior attorney at the Legal Services Unit of Advocacy, Inc., in Austin, Texas. He is coauthor and editor of the "Workers with Disabilities" chapter in The Employee & Union Member Guide to Labor Law (Robert H. Gibbs & Paul Alan Levy eds., Clark Boardman Callaghan 1981 & Supp. 2007).