The Fifth Circuit Clarifies a Plaintiff’s Burden Under the Americans with Disabilities Act

Last week's ruling by the Fifth Circuit shows that the ADA's disability requirement still has teeth, despite what some plaintiffs' counsel might believe. Here's what the case means going forward.

Despite What You May Have Heard, the Americans with Disabilities Act Still Requires that a Plaintiff Prove a Disability.

Not long ago, it was hard for employers not to get summary judgment in ADA cases. Plaintiffs who were not disabled "enough" were not covered, and those with significant impairments that could not be accommodated were unqualified. Only the claims of those who fell within a narrow middle ground survived.

Enter the 2008 amendments to the ADA (the "ADAAA") which broadened the term "disability," and instructed courts to interpret the law to broadly cover individuals. The message from Congress to the courts, seemingly, was "stop granting so many summary judgments." Since then, court decisions have lowered plaintiffs' burden of proving a disability to an almost negligible level, causing many to wonder just how low the hurdle is—and leading some to argue that it no longer exists. Last week, the Fifth Circuit expressly rejected that argument, ruling that plaintiffs must still establish disability status to prevail under the ADA.

Jeffrey Neely worked as a control-room operator for PSEG Texas, a power-plant company. After PSEG terminated Neely, he sued, claiming discrimination, retaliation, and failure to accommodate his disabilities of depression and anxiety. Over Mr. Neely's objection, the trial court submitted two predicate jury questions that asked whether he was a "qualified individual with a disability." The jury answered "No" to both questions. Mr. Neely appealed.

On appeal, Mr. Neely argued that the trial court had erred by asking the jury whether he was a "qualified individual with a disability." He argued that the ADAAA amendments expanded the statute's coverage by broadening the scope of "disability," and that it focused the inquiry on whether discrimination occurred. Therefore, he argued, the jury question asking whether he had a "disability" conflicted with congressional intent, and required reversal.

The Fifth Circuit disagreed, and held that the ADAAA still requires that plaintiffs prove that they have a disability before they can prove they were discriminated against. "Although the text of the ADAAA expresses Congress's intention to broaden the definition and coverage of the term 'disability,' it in no way eliminated the term from the ADAAA or the need to prove a disability on a claim of disability discrimination." The ADAAA may have made it easier for a plaintiff to prove a disability, but it is still a requirement of an ADA claim.

What's the Upshot from the Decision?

Prior to Neely, ADA claims did not focus on whether the plaintiff had a disability under the ADAAA. After this holding, plaintiffs can no longer argue that they are presumptively disabled. Rather, to succeed on an ADA claim, a plaintiff is still required to present sufficient evidence of a disability as defined under the statute.

The threshold remains low, however. The Neely decision is clear that the ADAAA makes a plaintiff's burden lighter than before the amendments. Courts facing ADA claims will continue to focus on whether discrimination occurred due to the plaintiff's disability, and employers will continue to face difficulties obtaining summary judgment based on the absence of any disability.