No Disability If You Recover: How The ADA Shortchanges Short-Term Impairments

A significant gap in the ADA’s protections lingers even after the ADA Amendments Act of 2008: whether individuals are protected from disability discrimination if their impairment lasted six months or less but was nonetheless the basis for some type of adverse employment or other action. The ADA does not explicitly exclude all short-term impairments, and the EEOC’s regulations provide they can be an actual disability if they are “sufficiently severe.” Without any further definition, not surprisingly perhaps, courts invoke reasoning similar to what they employed prior to the ADAAA’s course correction in 2008, primarily focusing on duration as a measure of the impairment’s severity and dismissing significant limitations as “trivial.” This is inconsistent with several of the ADAAA’s Rules of Construction. Relatedly, plaintiffs alleging short-term impairments under the “regarded as” prong frequently see their claims dismissed because the ADAAA excludes “transitory and minor” perceived impairments. Congress defined transitory—six months or less—but left minor to be interpreted by the courts. As with the actual disability cases, courts in the “transitory and minor” cases are finding impairments that are objectively more than trivial to nonetheless be minor. There is no discernable principle for what makes one impairment minor but not another, other than vague analogies to infected fingers and seasonal flues. This Article argues that many short-term impairments are indistinguishable in any meaningful way from other protected impairments and individuals alleging such impairments are entitled to the full scope of ADA protections