Employment – ADA — Rehab Act — 2009 Amendments — ‘100% healed’ requirement

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United States Court of Appeals, 7th Circuit

Civil

Employment – ADA — Rehab Act — 2009 Amendments — ‘100% healed’ requirement

The 2009 Amendments to the ADA, implicating the standard for determining whether an employee is “regarded as” disabled by an employer, do not apply to a plaintiff alleging disability discrimination who was fired before the amendments took effect; and an employer’s requirement that an employee be “100% healed” before he return to work is not a per se violation of the ADA or the Rehabilitation Act.

Steffen “cites a district court case from the District of Columbia for the proposition that the Amendments revealed Congress’ true intent when it originally passed the ADA. He urges us to follow that court and treat the Amendments as persuasive authority in interpreting the old version of the ADA. As the district court in this case rightly pointed out, however, Steffen simply repackages a retroactivity argument repeatedly rejected by this Court, see, e.g., Gratzl v. Office of Chief Judges of 12th, 18th,19th, and 22nd Judicial Circuits, 601 F.3d 674, 679 n.3 (7th Cir. 2010), and we cannot accede to his request without shirking our obligation to ‘cite, quote, and apply the ADA as it stood before the amendments.’ EEOC v. Autozone, Inc., 630 F.3d 635, 639 n.2 (7th Cir. 2010).”

Plaintiff also claims that the parties’ Settlement Agreement’s “100% healed” requirement is a per se violation of the ADA and the Rehab Act, and that the ADA requires employers to individually assess potential or current employees to determine whether they are qualified for a particular job, with or without an accommodation despite their disability.

“Whether or not Steffen presented enough evidence to show that the USPS may have a ‘100% healed’ policy regarding disabled workers, his argument has a separate, fatal flaw. In order to have standing to sue an employer for a per se violation of the ADA or Rehab Act, one still has to meet the definition of ‘disabled person’ under those statutes. [Citations.] …Steffen waived any argument that he was actually disabled under the ADA, does not put forth any argument that he had a record of being disabled, and failed to establish that he was regarded as being disabled….

“Our view comports with the Supreme Court’s pre-Amendments conclusion that ‘an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment–such as one’s height, build, or singing voice–are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.’ Sutton, 527 U.S. at 490-91. Therefore, Steffen does not have standing to bring a claim against the USPS for a per se violation of the ADA.”

Affirmed.

11-2664 Steffen v. Donahoe, Postmaster General, et al.

Eastern District of Wisconsin, Goodstein, Mag. J., Flaum, J.