Minor Impairments ≠ Disabilities, and Minor Annoyances ≠ Retaliation

These were the points recently made by the U.S. Court of Appeals for the Fourth Circuit in finding that an employee was not disabled within the meaning of the Americans with Disabilities Act and that he did not experience retaliation for requesting an accommodation.

Background of the Case. In Israelitt v. Enterprise Services LLC, the employee had an arthritic big toe. But he did not receive medical care for the condition, did not use any assistive device to walk, and walked 30-45 minutes several times a week for exercise. He made two accommodations requests for his toe – for a hotel room at a conference to avoid a commute that might aggravate his toe condition, and to be listed as a driver on a rental vehicle during a proposed work trip. He was subsequently excluded from the conference and trip, and taken off certain daily calls. After he was terminated for performance issues, he sued, alleging discrimination and retaliation in violation of the ADA.

No Minor Impairments. The ADA prohibits discrimination on the basis of disability, and defines disability as “a physical or mental impairment that substantially limits one or more major life activities,” (the court’s emphasis) which include walking. This definition had been interpreted restrictively, and in amending the ADA in 2008, Congress directed that it should be “construed in favor of broad coverage of individuals.” As the Fourth Circuit noted, however, “Congress made the coverage broad, not universal.”

But what are the parameters of that coverage? The Fourth Circuit acknowledged that it had not previously decided that question. But now, applying clear dictionary definitions, it found that “substantially” means “considerable” or “to a large degree” – and certainly does not mean “minor.” While it acknowledged that an arthritic toe could substantially limit someone’s mobility, it did not limit this employee’s ability to walk in any “non-minor way,” particularly since the record showed he often walked unassisted for lengthy periods of time.

No Minor Harm. As for the retaliation claim, the Fourth Circuit noted that, under Supreme Court precedent, it requires a showing that the employee suffered a “materially adverse” action that would have dissuaded a reasonable worker from taking a protected action – such as requesting reasonable accommodation or filing a discrimination claim under the ADA. The Fourth Circuit explained that this means that there must be some “significant detriment to the employee,” meaning more than “petty slights, minor annoyances and simple lack of good manners.” Here, the employee claimed that he was excluded from daily calls and two work trips, which the Fourth Circuit found did not cause him significant harm, and therefore were not adverse enough to qualify as unlawful retaliation.

No Jury Trial for ADA-Retaliation Claim. Of interest to attorneys, the Fourth Circuit also ruled that there is no right to a jury trial for an ADA-retaliation claim. The ADA itself provides no right to trial by jury. The Seventh Amendment, however, extends the right to a jury trial to all lawsuits where “legal” rights are involved and legal remedies are available. The Fourth Circuit found, however, that only equitable remedies are available for ADA-retaliation claims – meaning that the right to a jury does not apply to such claims. (Note that legal remedies are available for ADA discrimination and failure to accommodate claims, and therefore jury trials are applicable there).

Lessons for Employers. This case is helpful in confirming that minor mental or physical impairments do not constitute disabilities that trigger the protections of the ADA. It also reinforces that retaliation claims must be based on actions resulting in significant harm. Not everything that the employee dislikes will be a violation of the law.