Today’s blog entry is a two-for-one dealing with the fact that definitional terms still matter even after the amendments to the ADA. In the first case, Colton v. Fehrer Auto, North America, LLC, we revisit the question of whether being short is a disability without more. In the second case, Darby v. Childvine, Inc., we look at the question of whether a person with BRCA1 gene who undergo a preventive surgery to prevent breast cancer is a person with a disability. As usual, the blog is divided into categories and they are: Colton facts; Colton reasoning physical or mental impairment; Colton reasoning retaliation; Darby facts; Darby reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Colton Facts


A temporary work agency assigned the plaintiff to work at the defendant’s plan in Gaston Alabama. When she arrived for work, the employer put her on the assembly, which with the only position available. Plaintiff is 4’6” tall and that limits her reach. Her limited REIT caused immediate problems with her ability to perform the job she was assigned. She then asked her training coordinator to either accommodate her short stature to move her to a different position within the plant. When the training coordinator refused, he made the same request to the on-site human resources representative, who also refused. Not only did the HR representative refuse, he made the determination that the plaintiff would not a good fit and terminated her employment and noted in her personnel file that she would not be rehired. She filed with the EEOC, received the right to sue, and brought suit.



Colton Reasoning Physical or Mental Impairment


  1. Congress did not define the term physical or mental impairment within the statutory text of the ADA.
  2. The EEOC at 29 C.F.R. §1630.2(h)(1) define the physical impairment as a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, humic, lymphatic, skin, and endocrine.
  3. The EEOC regulation on physical or mental impairment gets Chevron deference.
  4. Read plainly, the EEOC requires some type of disorder or pathology of the body that affects one or more body systems. Plaintiff fails to satisfy that definition because she did not allege that her height is due to any disorder or pathology.
  5. Plaintiff’s height without the allegation that her height is due to any disorder or pathology is properly viewed as a physical characteristic. The ADA, citing to Sutton v. United Airlines, Inc., does not elevate physical characteristic to the status of a disability unless the characteristic results from a physiological disorder.
  6. While the amendments to the ADA to broaden the scope of the phrase “substantially limits one or more major life activities, the amendments did not alter the phrase, “physical or mental impairment.” So, a person still must have a physical or mental impairment in order to be a person with a disability under the ADA.
  7. Similarly, the regarded as claim fails because plaintiff cannot show the employer perceived a physical or mental impairment. In fact, emails indicated the employer perceived her short stature to be a safety and ergonomic issue and not a question of a disability.


Colton Reasoning Retaliation


  1. The ADA prohibits retaliation.
  2. There are two kinds of retaliation. They are participation and opposition.
  3. With respect to participation, that prohibits an employer from discriminating against an individual because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Complaints made internally to the HR department are not protected under participation retaliation.
  4. With respect to opposition, that prohibits employers from retaliating against an employee who has opposed any act or practice made unlawful by the ADA. For a person to enjoy protection under the opposition clause, that opposition must be reasonable. That is, the employee must reasonably believe that the act or practice she is opposing violates the ADA.
  5. Reasonable belief with respect to the opposition clause requires that the employee act in good faith and that her belief be objectively reasonable given the existing law. Here, while the plaintiff may have believed in good faith that her height was a disability, the law is very clear that height by itself without an underlying physiological condition associated with it is not a disability.



Darby Facts


Childvine hired Darby as an administrative assistant at its day care facility in Springboro, Ohio. Not long into her tenure, Darby made a request for time off to deal with a health issue. Darby says she notified her supervisor, Tyler Mayhugh, a director at Childvine, that she had recently been diagnosed with breast cancer, and that she was scheduled for a double mastectomy later that month. According to Darby, Mayhugh balked at the idea, expressing doubt about whether Childvine would allow Darby to remain employed when her surgery date fell within her 90-day probationary period. Mayhugh asked Darby to delay the surgery. Afraid of losing her job, Darby agreed to move the procedure to the day after her probationary period expired. Doing so apparently did not satisfy Mayhugh or Samantha Doczy, Childvine’s co-owner. When told of the new date, the two allegedly “harassed” Darby about the length of her leave request. Doczy later approved Darby’s request to use her vacation and sick time to recover from the procedure. When Darby contacted Mayhugh in late October, following her surgery, about returning to work in early November, Darby was told to bring a medical release. Yet when Darby returned to work, release in hand, Mayhugh explained that Childvine had already sent Darby a letter informing her of her termination. The letter, which Darby received days later, stated that her employment was terminated effective October 24th, the last day of her probationary period. The reasons listed for Darby’s termination included an “unpleasant” attitude, dress code violations, and “being unable to work.” Darby filed suit alleging that Childvine violated her rights under the ADA, and that the company along with Mayhugh and Doczy (collectively, “Childvine”) violated her rights under Ohio law. Viewing plaintiff’s genetic mutation as the absence of cancer and noting that the definition of physical impairment does not include a condition that might lead to breast cancer in the future, the District Court granted the employer’s motion and dismissed the case. Plaintiff appealed.



Darby’s Reasoning


  1. To prove up a case of disability discrimination, the plaintiff has to show: 1) she is a person with a disability; 2) she is qualified to perform her job requirements with or without reasonable accommodations; and 3) she would not have been discharged but for the disability.
  2. Whether a person has a physical or mental impairment is not a demanding standard. While it is a threshold issue, it is not an onerous burden for those seeking to prove discrimination under the ADA.
  3. Whether a person is substantially limited is defined in relation to a person’s ability to perform a major life activity as compared to most people in the general population, 29 C.F.R. §1630.2(j)(1)(ii).
  4. The amendments to the ADA and their final implementing regulations, 42 U.S.C. §12102(2)(B) and 29 C.F.R. §1630.2(i)(1)(ii) respectively, added the operation of a major bodily function, including normal cell growth to the list of major life activities.
  5. Plaintiff plausibly alleged that her impairment substantially limited her normal cell growth as compared to the general population due to both the genetic mutation that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy.
  6. Plaintiff’s complaint as amended alleged both a genetic mutation limiting normal cell growth and the growth of abnormal cells. She also alleged that her condition was serious enough to warrant an invasive corrective procedure. So, it is certainly plausible that plaintiff is substantially limited in normal cell growth as compared to the general population.
  7. The ADA’s implementing regulations, 29 C.F.R. §1630.2(j)(3)(iii), cites cancer as a condition that at a minimum qualifies as an impairment substantially limiting a major life activity. That language is a floor and not a ceiling. So, plaintiff’s gene mutation and abnormal cell growth even though not cancerous qualifies as a disability under the ADA.
  8. Expert medical testimony may help reveal whether plaintiff’s condition substantially limits normal cell growth or whether something else is involved.
  9. Whether a diagnosis of HIV is equivalent to a diagnosis of someone possessing the BRCA1 gene and therefore a disability automatically, is a fair debate. Nevertheless, plaintiff survives a motion to dismiss.
  10. Genetic mutation merely predisposing an individual to other conditions, such a cancer, is not itself a disability under the ADA. However, plaintiff has alleged more than just a genetic mutation.
  11. While plaintiff’s factual allegation are sufficient to survive a motion to dismiss, far more will be required to survive summary judgment.
  12. Issues not decided by this appeal include: 1) whether plaintiff’s condition in fact falls under the ADA’s definition of a disability; 2) does plaintiff’s precancerous cells constitute a substantial limitation on her normal cell growth; and 3) whether plaintiff’s precancerous cells were caused by plaintiff’s genetic mutation. All of that necessitates discovery.
  13. Since the District Court did not decide the Ohio law claim because of its dismissal of the federal claim, District Court on remand will have to deal with that issue.




  1. While the amendments did make things a lot easier for persons with disabilities to have the merits of their claim addressed, there are still definitional hurdles to be dealt with. One of those hurdles is whether the person has a physical or mental impairment. Usually but not always, that question is straightforward.
  2. A physical characteristic without more is not the same as a physical or mental impairment as defined by the ADA.
  3. Even for regarded as claims, a plaintiff still has to show that the defendant perceived a physical or mental impairment.
  4. Colton does a nice job of discussing in an easily understandable way the two different kinds of retaliation.
  5. While a physical or mental impairment is not a demanding standard, sometimes expert testimony is necessary.
  6. The amendments to the ADA dramatically changed what is a major life activity.
  7. Possibility exists that BRCA1 genetic mutation might be an automatic disability like HIV.
  8. For now, a person with a genetic mutation wanting to be covered under the ADA must allege more than just the genetic mutation in order to be protected under the ADA.
  9. Sutton has not been overruled entirely by the amendments. For example, its discussion of physical characteristics still applies. Also, its discussion of working as a major life activity also still applies, which is the reason why a plaintiff’s attorney should never allege working as a major life activity now that the amendments to the ADA have broadened what is a major life activity.