No Coverage For The Cantankerous? The Ninth Circuit Goes 'Retro' In Finding 'No Disability'

Novelist Peter De Vries and, later, Yogi Berra said: "nostalgia ain't what it used to be."

In Weaving v. City of Hillsboro,1 the U.S. Court of Appeals for the Ninth Circuit waxed nostalgic by reversing a jury and lower court finding that a police officer with Attention Deficit and Hyperactivity Disorder (ADHD) had a "disability" within the meaning of the 2008 amendments to the Americans with Disabilities Act (ADA). The Ninth Circuit held that the former officer was not disabled, because his ADHD - and associated abrasive behavior toward colleagues - did not substantially limit him in the major life activities of working or interacting with others. Before the amendments to the ADA, this decision might not have been noteworthy. Given the far more expansive interpretation of "disability" under the 2008 ADA Amendments Act (ADAAA), however, the Weaving case assumes the aura of a "Man Bites Dog" story by resisting the tendency of courts to err on the side of finding threshold protection under the ADAAA.

ADAAA Trends

The ADAAA was intended to turn back a series of U.S. Supreme Court and appellate court decisions restricting the scope of persons who had a "disability" under the ADA. Broadly, the ADAAA tells courts that "[t]he definition of disability shall be construed in favor of broad coverage of individuals" under the ADA, "to the maximum extent permitted by the terms" of the ADA.2 The ADAAA changed, among other things, the interpretation of "disability" by calling for a more expansive interpretation of when a physical or mental impairment "substantially limits" a "major life activity" and therefore qualifies as a disability.

Since the ADAAA, the overall number of ADA charges before the EEOC and proportion of ADA charges within the EEOC (in relation to other anti-discrimination laws) have increased.3 The highest number of lawsuits filed by the EEOC in 2013 involved disability discrimination claims, and ADA cases enjoy high priority under the EEOC's Strategic Enforcement Plan.4 Predictably, under the ADAAA, courts have granted far fewer summary judgment rulings for employers because the plaintiff lacked standing as a covered individual with a "disability."5 More cases focus on the "merits:" whether the plaintiff was treated differently, whether the plaintiff was "qualified" (able to perform the essential functions of the job with or without a reasonable accommodation), and whether the employer and employee followed their respective reasonable...