Perception Over Reality: Extending the ADA’s Concept of ‘Regarded As’ Protection under Federal Employment Discrimination Law
38 Pages Posted: 2 Nov 2010 Last revised: 2 Apr 2015
Date Written: 2009
A head-scratching inconsistency currently exists in federal employment discrimination law. On the one hand, an employer is 100% liable under the Americans with Disabilities Act of 1990 (ADA) if it erroneously “regards” a person as having an actual “disability” and then discriminates based on this misperception.
On the other hand, many courts have held that this “regarded as” protection does not extend to other federal employment discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act of 1967 (ADEA). In these jurisdictions, an employer is not liable at all under Title VII or the ADEA if it erroneously “regards” a person as (1) being of a certain race, color, religion, sex, or national origin or (2) being at least forty years old and then discriminates based on this misperception. According to these courts, this disparity in employee protection (and employer liability) is warranted because the ADA includes an express “regarded as” protection, while Title VII and the ADEA do not.
This Article proposes a wholesale judicial (and, if necessary, legislative) extension of the “regarded as” protection under federal employment discrimination law. This uniformity of employee protection (and employer liability) under the ADA, Title VII, and the ADEA is warranted for two reasons: (1) these other federal employment discrimination laws have long-shared with the ADA an identical congressional and judicial philosophy – namely, that employer perception or stereotype is an appropriate justification for imposing employment discrimination liability, even when that perception or stereotype is erroneous and inaccurate; and (2) the “regarded as” protection is necessary to capture an otherwise elusive subset of discriminating employers – the “erroneous discriminators” – and thus fully advance the comprehensive antidiscrimination purposes of these other laws.
Simply put, an employer that acts based on perception or stereotype regarding a person possessing a certain protected trait under Title VII or the ADEA is no less a “discriminator” just because its perception or applied stereotype was “wrong” rather than “right.” The extension of the “regarded as” protection across the federal employment discrimination spectrum will bring needed uniformity of employee protection and treat these “erroneous discriminators” as harshly as any other discriminating employer.
Keywords: Americans With Disabilities Act (ADA), Regarded As, Perception, Employment Discrimination, Title VII of the Civil Rights Act, Age Discrimination in Employment Act
JEL Classification: J70, J71, J78
Suggested Citation: Suggested Citation