Did you know that asthma might not be a disability? How is that even possible? After all, asthma is certainly a physical impairment that limits breathing and the immune system. Even so, the Sixth Circuit in Andrews v. Tri-Star Sports and Entertainment Group, Inc., here, on August 21, 2024, said that a plaintiff’s asthma was not a disability under the ADA. How did they get there? There was also a dissenting opinion worth discussing as well. As usual, the blog entry is divided into categories and they are: facts; majority opinion’s reasoning that Andrews forfeited certain arguments; majority opinion’s reasoning that Andrews did not sufficiently claim her asthma substantially limited the major life activity of breathing; Judge Clay’s dissenting opinion stating that the majority gets it wrong when it says Andrews asthma is not a disability protected by the ADA as amended; Judge Clay’s dissenting opinion stating that the defendant can have liability for failure to engage in the interactive process; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Andrews was diagnosed with asthma when she was fourteen or fifteen. She uses three medications daily and an inhaler as needed. Prior to her work at Tri Star, Andrews cheered competitively, sang and danced in a professional musical production in New York City, and coached cheerleading. While working at Tri Star, Andrews competed in exhibition cheerleading. She also attended 100-200 minute “heavy exertion” CrossFit classes two or three time weekly before suffering a rotator cuff injury. Since her termination from Tri Star, she went on cruises both to Alaska and the Caribbean, traveled to Spain and Orlando, and participated in gymnastics twice a week.

In March 2020, the Covid-19 pandemic forced the sudden cancellation of many live events. Tri Star earns commissions from live events and lost much of its revenue. To reduce its force, Tri Star’s CEO determined that only those she deemed “essential employees”—those who generate money for the company—would be able to work from home, while “nonessential employees” who requested to work from home would be laid off.

Around this time, Andrews asked her primary care provider, a nurse practitioner, if she should take any specific precautions against Covid-19. Andrews’s provider instructed her to “wash [her] hands, work from home if . . . able,” and to “self-quarantine” if she experienced symptoms. The next day, when Andrews went to the office, Tri Star employees—including her desk mate—were using Lysol spray cleaner. Irritated by the spray, Andrews went to the bathroom, used her inhaler, and returned to her desk for the remainder of the day. After Andrews’s supervisor expressed concern about Andrews’s cough possibly being Covid-19, Andrews assured him that it was “just a cough from asthma.” That same day, the Human Resources (HR) manager sent an email asking employees to speak with her and their supervisors immediately if they needed to work from home.

Andrews emailed her supervisor and the HR manager requesting to work from home. She falsely claimed that her “doctor” was “pissed at [her] and called [her] irresponsible for not staying at home[.]” Although Andrews told the HR manager that she would come into the office the next day, she later called her supervisor and said that her asthma and cough were getting worse. Again fearing that Andrews may have Covid-19, Andrews’s supervisor instructed her to stay home for the day. The next day, Andrews emailed the HR manager a note from her primary care provider stating that she has “well controlled” asthma but would “benefit from working at home due to the rising risk of COVID-19.” Meanwhile, the CEO deemed Andrews’s position “nonessential.” Two days later, Tri Star fired Andrews and nine other nonessential employees who requested to work from home.

According to the majority opinion, in the complaint: 1) Andrews never alleged that her asthma compromised her immune system or put her at an increased risk of contracting Covid-19. Instead, defendant only learned of those allegations when Andrews responded to its motion for summary judgment; 2) In briefing, Andrews failed to support her assertions with accurate record cites or any record cites at all; 3) Andrews failed to respond to the arguments made by the defendant that she had failed to allege she had a record of her asthma substantially limiting a major life activity.

II

Majority Opinion’s Reasoning That Andrews Forfeited Certain Arguments

1. New claims may not be raised in response to a motion for summary judgment.
2. The claim that her asthma substantially limited her immune function was missing from the complaint. Andrews never alleged that her asthma compromise her immune system or put her at an increased risk of contracting Covid-19. Since defendant only learned of those allegations in Andrews’ response to its motion for summary judgment, the defendant was not afforded fair notice of her immune related arguments or the grounds upon which they rested. Therefore, the defendant had no opportunity to investigate them during discovery. As a result, Andrews waived her arguments that her asthma was substantially limited, or was perceived as substantially limiting, her immune function.
3. Andrews failed to respond to the defendant’s argument that she failed to allege that she had a record of asthma that substantially limited a major life activity. Therefore, she forfeited that argument.
4. Andrews failed to allege that the defendant regarded her as being immunocompromised. Accordingly, that argument was forfeited as well.

III

Majority Opinion’s Reasoning That Andrews Did Not Sufficiently Claim That Her Asthma Substantially Limited the Major Life Activity of Breathing

1. Andrews did not describe the impact of her asthma as severe enough to qualify as a substantial limitation on her breathing. The ADA says that a major life activity is substantially limited when an individual cannot perform that activity as an average person in the general population could perform, or if the individual faces significant restrictions in the condition, manner, or duration under which he can perform the activity. 29 C.F.R. §1630.2(j)(i)-(ii).
2. Andrews told her medical provider that there was very little she couldn’t do. Extra strenuous activities could be a problem. She said there were a few extreme things that she wouldn’t do and that she avoided cardio intensive things. She also avoided: dogs that shed; using spray cleaner; or being in the cold for long periods of time. As a result, Andrews is able to physically perform well beyond the average person. After all, she goes to gymnastics twice a week, travels internationally, attends CrossFit workouts two or three times a week, was a competitive cheerleader and cheerleading coach, and sang and danced in a professional musical production. Since Andrews only alleged to her asthma prevented her from participating in just a few activities or settings, she did not raise a genuine issue of material fact as to whether she was substantially limited in the major life activity of breathing.

IV

Judge Clay’s Dissenting Opinion Stating the Majority Gets It Wrong When It Says That Andrews Asthma Is Not a Disability Protected by the ADA As Amended

1. The majority determination that Andrews does not have a disability under the ADA wrongfully assumes those who are disabled cannot find ways to participate in everyday activities and blatantly contradicts the 2008 amendment to the ADA.
2. By ignoring the text and intent of the amendments to the ADA, the majority erroneously determined that Andrews’asthma does not qualify as a disability because she is able to engage in various exercise related activities with the routine use of her inhaler and medication, a fact the majority opinion declined to acknowledge.
3. Andrews provided a legitimate Dr.’s note stating she had asthma. It also stated that while the asthma was well-controlled, that she would benefit from working at home due to the rising risk of Covid-19.
4. The defendant listed Andrews as being immunocompromised on a list of 12 employees that had requested to work from home. Three days after making that list with a compromised immune system noted, Andrews was told that she was being laid off as part of a reduction in force.
5. The majority opinion rest upon the assumption that an individual with a disability cannot find ways to cope with his or her disability and still be considered disabled. Such an approach ignores the amendments to the ADA express instruction to reject any consideration of mitigating measures and to broadly construe what constitutes a disability.
6. Prior to the passage of the amendments to the ADA, individuals who took self-help measure to improve their conditions were frequently deemed not covered by the protections of the ADA as a result of the Supreme Court opinion in Sutton v. United Airlines.
7. Sutton resulted in serious conditions, such as epilepsy, diabetes, cancer, bipolar disorder, depression, and asthma, being categorically excluded as a disability under the ADA. So, Congress stepped in with the amendments to the ADA. The purpose of the amendments was to shift the focus in ADA litigation from whether an individual’s impairment substantially limits a major life activity to the more important question of whether covered entities have complied with the ADA and whether the discrimination has actually occurred.
8. The amendments to the ADA prohibited courts from considering mitigating measures when assessing whether impairment substantially limits a major life activity.
9. The amendments also made it no longer relevant to determining whether the impairment substantially limits a major life activity that the disability may be episodic in nature or occur infrequently.
10. It does not matter Andrews’ asthma flares up only occasionally. Further, Andrews’use of the inhaler should not be considered when determining whether her asthma is a disability.
11. The amendments to the ADA specifically stated that the substantial limitation standard is not meant to be a demanding one and that the ADA mandates the definition of disability should be construed in favor of broad coverage of individuals.
12. The majority opinion mirrors outdated case law Congress expressly overturned with the amendments to the ADA. That outdated case law is no longer good law and cannot be relied upon. Prior to the passage of the amendments, Andrews’ asthma likely would not have constituted a disability because she is essentially able to function normally with the use of the her inhaler. However, after the amendments, courts can no longer consider mitigating measures when assessing whether an individual has a disability. Instead, the appropriate inquiry is whether the plaintiff’s asthma would substantially limit a major life activity when active without the consideration of the relief she gets from using her inhaler and her other medications.
13. The answer to the inquiry as to whether she is substantially limited in the major life activity of breathing absent use of her inhaler and other medications is obviously yes for many reasons: 1) she was diagnosed with asthma during high school; 2) the parties agree that her asthma triggers include the wind blowing interface, being in cold temperatures, high humidity, stress, strong smells, perfume, synthetic fog, and aerosol cleaning products. Each of those triggers inhibits her ability to breathe.
14. Andrews also testified that she has to deal with her asthma every day and tries to not let it get in her way and that it can be debilitating.
15. Defendant does not dispute that she uses her inhaler regularly and must do so.
16. Andrews elaborated that her asthma can culminate in bronchitis or pneumonia, resulting in shortness of breath even if she simply gets up and tries to move around.
17. She also testified that there were a lot of things she would like to do that she chooses not to do because they would be a problem as a result of her asthma.
18. She testified that her asthma would not be well-controlled in the absence of her inhaler and additional medications.
19. To combat the simple conclusion that she is substantially limited in the major life activity of breathing when mitigating measures are not considered, the majority ignores the amendments to the ADA saying that her transient and isolated asthma does not qualify as a disability. Such an outdated analysis is no longer permissible. That is, whether it disability occurs only in response to stimuli or can be controlled with mitigating measures is no longer relevant to the disability inquiry.
20. The majority compounds its error by implying that Andrews cannot possibly claim to be disabled due to asthma and at the same time maintain an active lifestyle. That conclusion is absolutely wrong. Importantly, Andrews engages in those activities only with the assistance of her inhaler, which can’t be considered when determining whether she has a disability.
21. By not evaluating whether Andrews has substantial limitation during exercise if she did not use her inhaler or other medication, the majority followed the District Court’s perfunctory conclusion that she did not adequately cite to the record to support that her active lifestyle is possible only due to her medications. Even a quick review of the undisputed facts show that Andrews always uses her rescue inhaler prior to exercising to keep her asthma controlled. By refusing to consider the effects of her asthma without regards to mitigating measures, the majority’s opinion puts its analysis within the rubric of pre-2008 case law, which Congress overruled with the amendments to the ADA.
22. In a footnote, Judge Clay notes that contrary to the majority’s holding, the district court did consider Andrews’ mitigation argument.
23. In emphasizing her ability to attend exercise classes, the majority relies on the long outdated presumption that someone who is truly disabled could not engage in strenuous activities. Just because she found ways to cope with her asthma does not bar her from being considered disabled within the purview of the ADA. After all, a court would not hold that a plaintiff with a prosthetic leg claims he is substantially limited in his ability to walk would not be disabled if he attended workout classes as such an interpretation would be absolute nonsense.
24. Although there are certainly circumstances in which asthma would not substantially limit a major life activity, there is sufficient evidence in this case that a reasonable trier of fact could conclude that when Andrews’ asthma was active that she was substantially limited in her ability to breathe compared to most people in the general population.
25. In a footnote, Judge Clay notes that the majority argument is very similar to an argument that Congress specifically rejected when passing the amendments to the ADA. For example, Congress stated that when considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.

V

Judge Clay’s Dissenting Opinion That the Defendant Can Face Liability for Failure to Engage in the Interactive Process

1. Tri-Star admitted that it did not engage in any interactive process.
2. Andrew triggered the defendant’s obligation to engage in the good faith interactive process by sending a written request to work from home accompanied by a Dr.’s note.
3. Andrews’ requested accommodation could be viewed by a jury as objectively reasonable as the defendant was soliciting such requests and she had worked from home successfully in the past.
4. After she made her requests, she was entitled to an interactive process built around communication and good-faith exploration of possible accommodation by both the employee and the employer.
5. Had the defendant attempted to engage in the interactive process as it was obligated to do, the parties may have found a variety of alternative options allowing Andrews to perform in person work throughout the duration of the pandemic. For example, Andrews may have agreed to continue working in person if the office agreed to implement a policy of using disinfectant wipes instead of aerosol cleaning spray. Although it is possible that she may have ultimately insisted on the accommodation of working remotely, the defendant did not engage in any form of a conversation that could have led them to that conclusion.

VI

Thoughts/Takeaways

1. When it comes to complaints, this case illustrates that it is really important for a plaintiff to list absolutely everything that may be a major life activity that is substantially limited by the client’s physical or mental impairment. The amendments to the ADA gives quite a long laundry list of possibilities. That list is also not exclusive, though it helps to stick to the list.
2. It is important to respond to arguments raised in a motion for summary judgment and to make sure that the complaint is as comprehensive as possible.
3. Complaints need to state enough facts so as to give a reasonable person notice as to what is being complained of. Notice pleadings is dead after Iqbal/Twombly, but fact-based pleadings isn’t entirely required either. Preventive steps means approaching a complaint more on the fact based side rather than on the notice side.
4. I can understand the forfeiture arguments. However, in my opinion, the dissenting opinion overwhelmingly carries the day with respect to whether Andrews is a person with a disability for all the reasons the dissent mentions.
5. This is a decision out of the Sixth Circuit, which encompasses Kentucky, Michigan, Ohio, and Tennessee. The court sits in Cincinnati Ohio. One has to wonder in light of the dissenting opinion’s strong arguments whether an en banc rehearing would be sought. Also, while I rarely suggest that it is a good idea from the person with a disability side to seek an appeal to the United States Supreme Court in an employment matter, this may be an exception to that rule. While the case concerns an employment matter, which may present a problem for the person with a disability at the Supreme Court typically, this case is about definitional matters. It seems possible to me that the Supreme Court would have problems saying that Sutton (with the exception of working as a major life activity, which remains good law), still applies even in the absence of specific statutory authority stating otherwise. As the dissent points out, the majority opinion make some unfortunate assumptions about what people with disabilities are capable of (for example, the Paralympics start this week), and that also may not sit well with the Supreme Court.
6. The employer may have dodged a bullet here with the majority’s ruling on there being no disability. If it hadn’t dodged that bullet, the failure to engage in an interactive process would have been very problematic for this employer. Always engage in the interactive process. Remember, it doesn’t take much to trigger the interactive process. For example, magic words aren’t required. Also, don’t forget about the do’s and don’ts of the interactive process. Finally, after the amendments, it is a very rare case where a defendant can successfully claim that a disability is not involved.
7. After the amendments, mitigating measures cannot be considered when deciding whether a person has a disability unless eyeglasses are involved. Mitigating measures can be considered with respect to reasonable accommodations but the two concepts are not at all the same.
8. The decision is not published.
9. I am not sure I understand the majority’s statement that Andrews failed to respond to arguments that she did not allege a record of having asthma. After all, the majority opinion itself said she was diagnosed with asthma back in high school.
10. The EEOC has made it clear that in the vast majority of cases whether an impairment is substantially limited is not a demanding inquiry, which is not how the majority opinion goes about it.