Since the ADA Amendments Act, the EEOC has been instructing employers to “skip over” the analysis of whether an employee is  “disabled” under the ADA (e.g., has a mental or physical impairment substantially limiting a major life activity), and instead go straight to the interactive process and offering accommodations.  Indeed, in crafting and enacting the ADA Amendment Act, Congress specifically intended “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations [ ] and . . .  that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” 42 U.S.C. § 1201 (note).

In Neely v. PSEG Texas, Limited Partnership, 735 F.3d 242 (5th Cir. 2013), the plaintiff adopted the EEOC’s position and argued the Court erred in submitting a jury question regarding disability—“Was [plaintiff] a qualified individual with a disability?”—as a predicate to a finding of discrimination regarding his termination claim and failure to accommodate claim under the ADA.   Plaintiff suggested under the textual changes to the ADA by the ADA Amendments Act, it is now unnecessary for a plaintiff to prove, and the jury to find, the plaintiff was “disabled” under the ADA.

In what seems an obvious but nonetheless an important and positive clarification for employers, the Fifth Circuit disagreed and held in order for employees to avail themselves of the ADA, they must in fact be “disabled.”  The Fifth Circuit ruled that although the ADA Amendments Act expresses Congress’s intention to broaden the definition and coverage of the term “disability,” it  “in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination” or a claim of failure to accommodate.  The Court states:

[B]ecause the jury instruction definition of “disability” and “qualified individual” properly conform to the ADAAA (and because the term “disability,” even in its broadest sense, remains to be proved in claims under the ADA), there is no abuse of discretion—or even error—in the use of the terms in the . . . verdict question.

Id. at 246-47.


Employers should still examine whether an employee meets the “disability” definition before engaging in the interactive process and offering accommodations.   Litigators should continue to argue plaintiffs do not meet the definition of “qualified person with a disability,” and thus do not have the protection of the law.


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