SCOTUS will not review 3rd Cir.'s harsh ADA Amendments Act reminder

UPDATE: Nov. 5, 2019: The U.S. Supreme Court declined to review this case Monday, Nov. 4.

Dive Brief:

An employer waived its right to contest "antiquated" jury instructions, allowing an employee to prevail on a "regarded as" disabled theory under in an Americans with Disabilities Act (ADA) accommodation lawsuit, the 3rd U.S. Circuit Court of Appeals concluded (Robinson v. First State Community Action Agency, No. 17-3141 (3rd Cir., April 1, 2019)).
After Tamra Robinson's manager at First State told her that her performance was so poor that she either didn't know what she was doing or was dyslexic, Robinson underwent testing for dyslexia. She sent the manager an evaluation stating that she had symptoms consistent with the impairment and requested accommodations from HR, specifically "hands-on organized training." Instead, she was told to improve her job performance and then fired several weeks later.
Robinson sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation. A jury agreed and the employer appealed, arguing that the jury instructions didn't reflect changes that the ADA Amendments Act made to the ADA more than a decade ago — specifically, a clarification that individuals protected only under the law's "regarded as" prong aren't entitled to accommodation. The 3rd Circuit agreed that the jury instruction was made in error, but the employer had waived the right to contest it because it had not opposed Robinson's use of the argument earlier, had "encouraged" the use of the jury instruction and also failed to make the objection in a post-trial briefing. At no time, the court said, did First State object, despite numerous opportunities to do so.

Dive Insight:

"The lesson here is that the parties are responsible for ensuring that jury instructions are current, even model instructions," Bruce Greenberg, an attorney with Lite DePalma Greenberg, wrote in a blog post.

It's also key that employers understand what the law requires — and what it doesn't. The "regarded as" prong of the ADA's definition of disability protects an individual from discrimination based on an employer's belief that he or she has a disability. The ADA Amendments Act of 2008 made it easier for an individual to establish protection under that prong, according to the U.S. Equal Employment Opportunity Commission. Its coverage is now based on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," the federal agency notes.

But an individual must be covered by one of the first two prongs of the definition, having an actual disability or a "record of" a disability, to qualify for a reasonable accommodation, the EEOC says. "In other words," the 3rd Circuit noted, "after the 2008 amendments went into effect, an individual who demonstrates that she is 'regarded as' disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation."