                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1997

Deane v. Pocono Med Ctr
Precedential or Non-Precedential:

Docket
96-7174




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Recommended Citation
"Deane v. Pocono Med Ctr" (1997). 1997 Decisions. Paper 204.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/204


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Filed August 25, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7174

STACY L. DEANE,
Appellant

v.

POCONO MEDICAL CENTER,
Appellee

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. Action No. 94-1139)

Argued
January 31, 1997

Before: BECKER and ROTH, Circuit Judges,
and BARRY, District Judge*

(Filed August 25, 1997)



_________________________________________________________________
* Honorable Maryanne Trump Barry of the United States District Court
for the District of New Jersey, sitting by designation.



       GALFAND BERGER, LURIE,
       BRIGHAM, JACOBS, SWAN,
       JUREWICZ & JENSEN, LTD.
       BY: DEBRA A. JENSEN, ESQUIRE
        [Argued]
       DANIEL BENCIVENGA,
        ESQUIRE
       Suite 2300, 1818 Market Street
       Philadelphia, PA. 19103-3623
       Attorneys for Appellant
       Stacy L. Deane

       POST & SCHELL, P.C.
       BY: SIDNEY R. STEINBERG,
       ESQUIRE [Argued]
       1800 JFK Boulevard, 19th Floor
       Philadelphia, PA 19103
       Attorneys for appellee Pocono
       Medical Center
OPINION OF THE COURT

BARRY, District Judge

In recognition of the fact that discrimination against the
physically and mentally disabled was a "serious and
pervasive social problem," Congress, in 1990, enacted the
Americans with Disabilities Act ("ADA" or "Act") in order to
level the playing field for disabled individuals in the
workplace. Toward this end, Congress extended the
provisions of the ADA not only to those who are actually
disabled, but also to individuals wrongly regarded as being
disabled. Unfortunately, however, the extent to which
individuals who are merely "regarded as" disabled are
entitled to be treated as though they are actually disabled
was left far from clear. We decide today an important issue
of first impression in this circuit -- where, as here, an
individual is "regarded as" being disabled but is not, in fact,
disabled, the ADA does not entitle that individual to
accommodation in the workplace.

                                2



I.

Appellant Stacy L. Deane, a former employee of appellee
Pocono Medical Center ("PMC"), filed a complaint which
alleged that PMC terminated her employment in violation of
the ADA, 42 U.S.C. SS 12101 et seq.; the Rehabilitation Act
of 1973, 29 U.S.C. SS 701 et seq.; and the Pennsylvania
Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann.
SS 951 et seq.1 The district court granted summary
judgment in favor of PMC, and Deane has appealed. For the
reasons that follow, we affirm.

II.

In April 1990, PMC hired Deane as a registered nurse to
work primarily on the medical/surgical floor of the medical
center. On June 22, 1991, while all the nurses on the
medical/surgical floor, with the exception of Deane and one
other nurse, were at lunch, Deane responded to an
emergency situation in a patient's room. Upon entering the
room, Deane discovered an elderly male patient who had
somehow removed all but one of his restraints and was
hanging off his bed between the side rails. Because the
patient was in danger of falling farther and pulling the
intravenous line out of his neck, Deane lifted him back into
his bed. As she was about to replace the last restraint, the
patient grabbed her right wrist, twisting it counterclockwise
and causing the injury which culminated in this case. That
injury -- a sprained right wrist and cartilage tear in the
wrist -- caused her to miss approximately a year of work.

In June 1992, Deane and Barbara Manges, a nurse
assigned to Deane's workers' compensation case,
telephoned PMC and advised Charlene McCool, PMC's
_________________________________________________________________

1. Although we will address only Deane's ADA claim, the only claim
raised on appeal, our analysis applies equally to Deane's Rehabilitation
Act and PHRA claims. See Kelly v. Drexel University, 94 F.3d 102, 105
(3d Cir. 1996) (holding that the district court properly treated the
plaintiff's PHRA claims as coextensive with his ADA claim); McDonald v.
Dep't of Public Welfare, 62 F.3d 92, 94 (3d Cir. 1995) (holding that,
whether an action is brought under the ADA or the Rehabilitation Act,
the substantive standards are the same). Neither party disputes this on
appeal.

                                  3



Benefits Coordinator, of Deane's intent to return to work
with certain restrictions. According to Deane, she informed
McCool that she was unable to lift more than 15-20 pounds
or perform repetitive manual tasks, such as typing, but
that her physician, Dr. Osterman, had released her to
return to "light duty" work.2 Deane further explained to
McCool that, if she could not be accommodated in a light
duty position on the medical/surgical floor, she was willing
to move to another area of the hospital, as long as she
could remain in nursing.3

After speaking with Deane and Manges, McCool advised
Barbara Hann, PMC's Vice President of Human Resources,
_________________________________________________________________

2. In a letter dated June 8, 1992, the contents of which were
communicated by Deane and Manges to McCool during their telephone
conversation, Dr. Osterman opined as follows:

         I do not think [Deane] can return to unrestricted nursing i.e. I
would
         place a lifting limit of 20 pounds and a limit on unrestricted
         repetitive motion of her wrist. She does believe that she can
return
         to some nursing and I would agree with this. She has suggested
         pediatric nursing, neonatal nursing and possibly even the cancer
         unit at the hospital which apparently does not involve lifting the
         patients. All would be acceptable.

Another of Deane's physicians, Dr. Sipowicz, evaluated Deane
approximately one week after Dr. Osterman's examination. His notes
from June 16, 1992 reveal the following conclusions:
        It is my professional opinion that Ms. Deane is permanently
        disabled from heavy activity and that she not have a position
        requiring lifting greater than 20 pounds, or that on a rare- or
        occasional basis, or any repetitive lifting using her right upper
        extremity. Ms. Deane is seeking employment in a neo-natal and/or
        oncology unit. This is quite all right with us. She is a registered
        nurse. She certainly is employable. If those positions become
        available, I feel that she should, indeed, take them. But regular
floor
        nursing is, in my professional opinion, out of the question now and
        in the future. I feel that she is permanently disabled.

3. This telephone call was PMC's only interaction with Deane during
which it could have assessed the severity of or possible accommodation
for her injuries. PMC never requested additional information from Deane
or her physicians. According to Deane, however, she subsequently
attempted to contact PMC on several occasions and, at least once, was
treated rudely by McCool and told not to call again.

                                 4



of Deane's request to return to work, her attendant work
restrictions, and her stated need for accommodation.
Shortly after considering the information conveyed by
McCool and after comparing it to the job description of a
medical/surgical nurse at PMC, Hann determined that
Deane was unable to return to her previous position. Hann
then asked Carol Clarke, PMC's Vice President of Nursing,
and Susan Stine, PMC's Director of Nursing
Resources/Patient Care Services, to review Deane's request
to return to PMC and explore possible accommodations for
her. Both Clarke and Stine concluded that Deane could not
be accommodated in her previous job as a nurse on the
medical/surgical floor or in any other available position at
the hospital. Finally, Hann asked Marie Werkheiser, PMC's
Nurse Recruiter, whether there were any current or
prospective job openings for registered nurses at PMC.
According to Werkheiser, there were no such openings at
that time.

As a result of the collective determination that Deane
could not be accommodated in her previous job or in any
other available position in the hospital, PMC sent Deane an
"exit interview" form on August 7, 1992. On August 10,
1992, Hann notified Deane by telephone that she could not
return to work because of her "handicap," and this
litigation ensued.4

Deane argued before the district court that she was both
actually disabled as a result of her injury and that she was
perceived to be so by PMC. On summary judgment, the
court rejected both theories and held that Deane was
neither disabled nor regarded by her employer as being
disabled and that, even if she were, she failed to meet the
statutory definition of a qualified individual with a
disability. Deane has not appealed the district court's
determination that she was not actually disabled. Indeed,
she now concedes that "[i]n light of the decisional trends in
this Circuit and others," she is not now and never was
_________________________________________________________________

4. In March 1993, Deane accepted a registered nurse position at a non-
acute care facility, where she remained until May 1993. Deane has been
employed by a different non-acute care facility since July 1993. These
positions do not require heavy lifting, bathing patients, or the like.

                                5



disabled and, consequently, that, but for PMC's erroneous
perception of her actual impairment, she would have no
claim under the ADA.

What is left for us, then, are Deane's contentions that
she was disabled under the terms of the ADA by virtue of
the fact that PMC regarded her limitations as being far
worse than they actually were, that PMC failed to
accommodate her lifting restriction, and that she was
eventually terminated on account of PMC's perception that
she was disabled. In support of her perception claim, Deane
relies on a so-called "laundry list" of PMC's allegedly
erroneous perceptions. According to Deane, PMC believed
that she was unable to lift more than ten pounds, push or
pull anything, assist patients in emergency situations,
move or assist patients in the activities of daily living,
perform any patient care job at PMC or any other hospital,
perform CPR, use the rest of her body to assist patients,
work with psychiatric patients, or use medical equipment.5
Deane refutes each of these perceptions -- or, in her view,
misperceptions -- and contends that her injury was, in
fact, minor in nature.6 Deane further contends that PMC
should be held responsible for these misperceptions
because they were the result of PMC's "snap judgment"
arrived at without analyzing, investigating or assessing, in
good faith, the nature of her injury.

Finally, notwithstanding Deane's contention that her
impairment was minor, Deane has maintained throughout
the course of this litigation, and continues to maintain on
appeal, that she requires and is entitled to accommodation
for her lifting restriction.7 In this regard, Deane contends
_________________________________________________________________

5. With the exception of certain alleged misperceptions that are not even
arguably borne out by the record, such as Deane's inability to open file
drawers or operate housekeeping equipment, we accept, as we must,
Deane's description of PMC's misperceptions.

6. Given that Deane vigorously maintained before the district court that
she was actually disabled and has only now shifted her sole focus to her
perception claim, Deane's position in this regard is somewhat
disingenuous.

7. Aside from a few scattered references in her briefs on appeal and at
oral argument suggesting that she could have performed the lifting

                                6



that she could be accommodated either in her previous
position as a nurse on the medical/surgical floor or
through reassignment to another position that would not
require heavy lifting. As to the former, Deane has, from the
outset, suggested the following accommodations: (1) the use
of an assistant to help her move or lift patients; (2) the
implementation of a functional nursing approach, in which
nurses would perform only certain types of nursing tasks;
and (3) the use of a Hoyer lift to move or lift patients. With
respect to the latter, Deane maintains that she could have
been transferred to another unit within the medical center
such as the pediatrics, oncology, or nursery units, which
would not have required heavy lifting.

III.

We have appellate jurisdiction over the district court's
grant of summary judgment pursuant to 28 U.S.C. S 1291.
Because our standard of review is plenary, Kelly v. Drexel
University, 94 F.3d 102, 104 (3d Cir. 1996), we apply the
_________________________________________________________________

required of a nurse on the medical/surgical floor with no
accommodation, Deane's main argument on appeal is that
accommodation was wrongly withheld. Indeed, the bulk of her
submissions to this court focuses on the argument that had PMC
engaged in interactive communications with her, it would have realized
that her impairments could have been easily accommodated. Deane
never informed PMC that she could have performed the required lifting
without accommodation and the record is entirely bereft of any evidence
that she could have performed without accommodation at the time of her
termination. More importantly, Deane argued to the district court that
she could have been accommodated through job restructuring or
reassignment and never once contended in her brief in opposition to
PMC's motion for summary judgment that no accommodation was
necessary. Accordingly, Deane will not be allowed to transform the
nature of this case, yet again, by relying on arguments raised for the
first time on appeal.
Deane's alternative argument in this regard is that she can perform
the essential functions of her previous job without accommodation
because, according to Deane, lifting is not an essential function of
nursing. As discussed below, this position is not only factually
untenable, but is legally irrelevant.

                                7



same test the district court should have applied in the first
instance. Olson v. General Electric Astrospace, 101 F.3d
947, 951 (3d Cir. 1996); Helen L. v. DiDario, 46 F.3d 325,
329 (3d Cir. 1995). We must determine, therefore, whether
the record, when viewed in the light most favorable to
Deane, shows that there is no genuine issue of material fact
and that PMC was entitled to summary judgment as a
matter of law. See, e.g., Olson , 101 F.3d at 951; Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

IV.

Congress enacted the ADA in 1990 in an effort to remove
societal barriers that historically have prevented disabled
individuals "from enjoying the same employment
opportunities that are available to persons without
disabilities."8 29 C.F.R. App. S 1630, Background. Despite
Congress's stated purpose of providing "clear, strong,
consistent, enforceable standards," 42 U.S.C. S 12101(b)(2),
however, the statutory language does not well serve that
end. See Note, The Americans With Disabilities Act: Great
Progress, Greater Potential, 109 Harv. L. Rev. 1602, 1615
(1996) ("One of the Act's major problems is its vagueness.
Many of the statute's terms are ambiguous, leaving
employers and disabled individuals uncertain about their
rights and responsibilities and requiring costly litigation to
_________________________________________________________________

8. The ADA, itself, provides the following statement of purposes:

       (1) to provide a clear and comprehensive national mandate for the
       elimination of discrimination against individuals with
disabilities;

       (2) to provide clear, strong, consistent, enforceable standards
       addressing discrimination against individuals with disabilities;

       (3) to ensure that the Federal Government plays a central role in
       enforcing the standards established in this chapter on behalf of
       individuals with disabilities; and

       (4) to invoke the sweep of congressional authority, including the
       power to enforce the fourteenth amendment and to regulate
       commerce, in order to address the major areas of discrimination
       faced day-to-day by people with disabilities.

42 U.S.C. S 12101(b).

                                8



resolve the uncertainties."). As a result, courts have been
left to determine, with little legislative history to assist
them, the meaning and application of vague terms and
concepts through a fact-sensitive, case-by-case inquiry. We
do not mean to suggest, however, that Congress is
necessarily to be faulted for its lack of specificity, as the
capabilities of disabled persons and the manifestations of
their disabilities are often as diverse and unique as are the
individuals themselves. Nevertheless, the use of vague and
general standards rather than strict guidelines --
particularly with respect to what constitutes a disability, a
qualified individual, and reasonable accommodation -- has
permitted inconsistent if not absurd judgments and favored
those with easily accommodated disabilities or minor
impairments, rather than those with serious disabilities
who seek nothing more than the equal employment
opportunities to which they are entitled. Id.

The core antidiscrimination section of the ADA provides
that:

       No covered entity shall discriminate against a qualified
       individual with a disability because of the disability of
       such individual in regard to job application procedures,
       the hiring, advancement, or discharge of employees,
       employee compensation, job training, and other terms,
       conditions, and privileges of employment.

42 U.S.C. S 12112 (emphasis supplied). Thus, in order to
make out a prima facie case under the ADA, a plaintiff
must be able to establish that he or she (1) has a
"disability," (2) is a "qualified individual," and (3) has
suffered an adverse employment action because of a
disability. See, e.g., Turco v. Hoechst Celanese Corp., 101
F.3d 1090, 1092 (5th Cir. 1996) (citing Rizzo v. Children's
World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir.
1996)); Benson v. Northwest Airlines, Inc., 62 F.3d 1108,
1112 (8th Cir. 1995) (citing Wooten v. Farmland Foods, 58
F.3d 382, 385 (8th Cir. 1995)). The August 10, 1992 call
from Ms. Hann terminating Deane because of her
"handicap" is uncontroverted direct evidence that Deane
suffered an adverse employment action because of her
employer's perception of her disability. Deane has,
therefore, established the third element of her prima facie
                                9



case and that element will not be discussed in further detail.9
See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th
Cir. 1997) ("When an employer concededly discharges an
employee because of a disability, the employee need prove
nothing more to meet the third prong of the prima facie
test").

A.

Mirroring the elements of the prima facie case, the first
step in deciding any ADA claim is to determine whether the
plaintiff is disabled under the terms of the Act. The ADA
defines a "disability" as:

       (A) a physical or mental impairment that substantially
       limits one or more of the major life activities of such
       individual;

       (B) a record of such an impairment; or

       (C) being regarded as having such an impairment.

42 U.S.C. S 12102(2); 29 C.F.R. 1630.2(g). 10

Because, on appeal, Deane concedes that she is not
actually disabled, but that she was only "regarded as" being
disabled, we direct our focus to the third tier of the
statutory definition. Read in conjunction with thefirst tier
of the definition, defining an actual disability, the third tier
requires us to determine whether PMC regarded Deane as
having an impairment and whether the impairment, as
perceived by PMC, would have substantially limited one or
_________________________________________________________________

9. Likewise, because of this direct evidence, there is no need to analyze
Deane's claims under the McDonnell Douglas burden shifting framework.
See Torre v. Casio, Inc., 42 F.3d 825, 829 n.3 (3d Cir. 1994) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

10. Because the ADA does not define many of the pertinent terms,
phrases, or concepts, we are guided by the Regulations issued by the
Equal Employment Opportunity Commission ("EEOC") to implement Title
I of the Act. See 42 U.S.C. S 12116 (requiring the EEOC to implement
said Regulations); 29 C.F.R. S 1630.2. Regulations such as these are
entitled to substantial deference. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Blum v.
Bacon, 457 U.S. 132, 141 (1982); Helen L., 46 F.3d at 331-32.

                                10
more of Deane's major life activities. Deane's actual
impairment, therefore, is of no consequence to our analysis.
Parenthetically, it initially may seem odd that Congress
chose to extend the protections of the Americans with
Disabilities Act to individuals who have no actual disability.
The primary motivation for the inclusion of perceptions or,
more appropriately, misperceptions, of disabilities in the
statutory definition, however, was that "society's
accumulated myths and fears about disability and diseases
are as handicapping as are the physical limitations that
flow from actual impairment."11 See 29 C.F.R. App.
_________________________________________________________________

11. The limited legislative history makes clear that Congress's primary
concern in enacting the "regarded as" prong of the ADA was for
individuals with no limitations but who, because of some non-limiting
impairment, are prevented from obtaining employment as a result of
society's myths, fears and prejudices. As the final House Report
provides,

          The rationale for this third test [the "regarded as" prong] as
used
         in the Rehabilitation Act of 1973, was articulated by the Supreme
         Court in School Board of Nassau County v. Arline. The Court noted
         that although an individual may have an impairment that does not
         in fact substantially limit a major life activity, the reactions of
others
         may prove just as disabling. `Such an impairment might not diminish
         a person's physical or mental capabilities, but could nevertheless
         substantially limit that person's ability to work as a result of
the
         negative reactions of others to the impairment.'

          The Court concluded that, by including this test, `Congress
         acknowledged that society's accumulated myths and fears about
         disability and diseases are as handicapping as are the physical
         limitations that flow from actual impairment.'

H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 1990, 1990 U.S.C.C.A.N.
445 (emphasis added).

The only two examples given in the House Report of individuals
regarded as disabled are individuals with cosmetic impairments, such as
burn scars, and individuals who "are rejected from jobs because a back
x-ray reveals some anomaly, even though the person has no symptoms
of a back impairment." Id. (emphasis added). Neither of these examples
involves individuals with limitations. Accordingly, there is no indication
in the legislative history that Congress gave any thought whatsoever to
individuals who, like Deane, are not actually disabled but who are
impaired to the extent that they would require accommodation.
                                 11



S 1630.2(l) (citing School Bd. of Nassau County v. Arline,
480 U.S. 273, 284 (1987)). Thus, as one of our sister
circuits has appropriately recognized, a perception claim

        [a]lthough at first glance peculiar, actually makes a
        better fit with the elaborate preamble of the Act, in
        which people who have physical or mental impairments
        are compared to victims of racial and other invidious
        discrimination. Many such impairments are not in fact
        disabling but are believed to be so, and the people
        having them may be denied employment or otherwise
        shunned as a consequence. Such people, objectively
        capable of performing as well as the unimpaired, are
        analogous to capable workers discriminated against
        because of their skin color or some other vocationally
        irrelevant characteristic.

Vande Zande v. Wisconsin Dep't. of Administration, 44 F.3d
538, 541 (7th Cir. 1995) (emphasis supplied).

The EEOC Regulations provide that an individual is
"regarded as" being disabled if he or she

        (1) [h]as a physical or mental impairment that does
        not substantially limit major life activities but is
        treated by a covered entity as constituting such
        limitation;

        (2) [h]as a physical or mental impairment that
        substantially limits major life activities only as a result
        of the attitude of others toward such impairment; or

       (3) [h]as none of the impairments defined in
       paragraph (h)(1) or (2) of this section but is treated by
       a covered entity as having a substantially limiting
       impairment.12
_________________________________________________________________

12. 29 C.F.R. 1630.2(h) defines "physical or mental impairment" as:

        (1) [a]ny physiological disorder, or condition, cosmetic
        disfigurement, or anatomical loss affecting one or more of the
        following body systems: neurological, musculoskeletal, special
sense
        organs, respiratory (including speech organs), cardiovascular,
        reproductive, digestive, genito-urinary, hemic and lymphatic, skin,
        and endocrine; or

        (2) [a]ny mental or psychological disorder, such as mental
        retardation, organic brain syndrome, emotional or mental illness,
       and specific learning disabilities.

                                12



29 C.F.R. S 1630.2(l). See also S. Rep. No. 116, 101st
Cong., 2d Sess. 23 (1989) ("Senate Report"); H.R. Rep. No.
485 pt. 2, 101st Cong., 2d Sess. 53 (1990) ("House Labor
Report"), reprinted in 4 U.S. Code Cong. & Admin. News
335; H.R. Rep. No. 485 pt. 3, 101st Cong., 2d Sess. 29
(1990) ("House Judiciary Report"), reprinted in 4 U.S. Code
Cong. & Admin. News 452. Significantly, common to each
definition is the requirement that the individual not in fact
have an impairment that, absent the misperceptions of
others, would substantially limit a major life activity.

Each of the three definitions of being "regarded as"
disabled, as set forth in the Regulations, applies, as
written, to a discrete factual setting. The first applies to an
individual with an impairment that others might consider
to be a disability but does not technically fall within the
statutory definition of an actual disability. For example, if
an employee has high blood pressure, which is controlled
and is not substantially limiting, and if an employer
reassigns that employee to a less strenuous job because of
unsubstantiated fears that the employee will suffer a heart
attack if he or she continues to perform strenuous work,
the employee would have been perceived as disabled. 29
C.F.R. app. S 1630.2(l). The second definition applies to an
individual who has an impairment that might not ordinarily
be considered a disability, but is, nonetheless, substantially
limiting because of the attitudes of others toward it. For
example, if an employee has a prominent facial scar that is
not otherwise substantially limiting, and if an employer
discriminates against that employee because of customers'
negative reactions to the scar, the employee would have
been perceived as disabled. Id. Finally, the third definition
targets a person who has no impairment at all but is
treated by his or her employer as if he or she is disabled.
For example, if an employer discharges an employee in
response to a rumor that the employee was infected with
Human Immunodeficiency Virus ("HIV"), even though the
rumor was completely unfounded, the employee would have
been perceived as being disabled and, therefore, would be
disabled for purposes of the ADA. Id.

Deane contends that she satisfies the first definition
because PMC erroneously perceived the nature and extent

                                13
of her impairment. In order to maintain a "regarded as"
claim under the ADA, however, a plaintiff must
demonstrate more than the fact that an employer
misperceived the severity of the impairment. Rather, a
plaintiff must demonstrate that the impairment, as
erroneously perceived by his or her employer, would
"substantially limit" one or more of his or her "major life
activities."13 See generally Olson, 101 F.3d at 953-55;
_________________________________________________________________

13. Major life activities include, but are not limited to, "functions such
as
caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working," see 29 C.F.R. S 1630.2(I), as
well as "sitting, standing, lifting, [and] reaching." 29 C.F.R. app.
S 1630.2(I); Senate Report at 22; House Labor Report at 52; House
Judiciary Report at 28-29.

An individual is defined as "substantially limited" in a major life
activity other than working if he or she is

         (I) [u]nable to perform a major life activity that the average
person
         in the general population can perform; or

       (ii) [s]ignificantly restricted as to the condition, manner or
duration
       under which an individual can perform a particular major life
       activity as compared to the condition, manner or duration under
       which the average person in the general population can perform the
       same major life activity.

29 C.F.R. S 1630.2(j)(1). In determining whether a person is substantially
limited in a major life activity, courts should consider

         (I) [t]he nature and severity of the impairment;

         (ii) [t]he duration or expected duration of the impairment; and

       (iii) [t]he permanent or long term impact, or the expected
permanent
       or long term impact of or resulting from the impairment.

29 C.F.R. S 1630.2(j)(2).

Where, as here, the major life activity at issue is working, the term
"substantially limited" is defined as "significantly restricted in the
ability
to perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training,
skills and abilities." Olson, 101 F.3d at 952 (citing 29 C.F.R.
S 1630.2(j)(3)(I)). Thus, the mere "inability to perform a single,
particular
job does not constitute a substantial limitation in the major life
activity
of working." Id. In making these determinations, courts may consider

                                14



MacDonald v. Delta Airlines, Inc., 94 F.3d 1437, 1445 (10th
Cir. 1996); Bridges v. City of Bossier, 94 F.3d 329, 333-34
(5th Cir. 1996).

After rejecting Deane's claim that she was actually
disabled, a conclusion that Deane does not challenge here,
the district court rejected her perceived disability claim on
three grounds. First, the court found, as a matter of
undisputed fact, that PMC regarded Deane's impairment as
limiting her ability to work as a nurse on the
surgical/medical floor but not her ability to work as a
nurse in general. Next, the court determined that Deane
could not have been precluded from working in general in
her field because, following her termination from PMC, she
held two positions as a registered nurse. Finally, the court
concluded, as a matter of law, that PMC's perception of
Deane's impairment was not motivated by "myth, fear or
stereotype" and, therefore, was not actionable under the
ADA. While, as noted earlier, we affirm the district court's
conclusion that summary judgment should be granted on
Deane's "regarded as" claim, we do so not on the grounds
the district court found persuasive, as each of those
grounds was error.

Taking the three grounds in reverse order, although the
legislative history to the ADA indicates that Congress was
concerned about eliminating society's myths, fears,
_________________________________________________________________

       (A) [t]he geographical area to which the individual has reasonable
       access;

       (B) [t]he job from which the individual has been disqualified
because
       of an impairment, and the number and types of jobs utilizing
similar
       training, knowledge, skills or abilities, within that geographical
area,
       from which the individual is also disqualified because of the
       impairment (class of jobs); and/or

       (C) [t]he job from which the individual has been disqualified
because
       of an impairment, and the number and types of other jobs not
       utilizing similar training, knowledge, skills or abilities, within
that
       geographical area, from which the individual is also disqualified
       because of the impairment (broad range of jobs in various classes).

29 C.F.R. S 1630.2(j)(3)(ii).

                                15



stereotypes and prejudices with respect to the disabled, the
EEOC's Regulations and interpretive appendix make clear
that even an innocent misperception based on nothing
more than a simple mistake of fact as to the severity, or
even the very existence, of an individual's impairment can
be sufficient to satisfy the statutory definition of a perceived
disability. 29 C.F.R. app. S 1630.2(l). Thus, whether or not
PMC was motivated by myth, fear or prejudice is not
determinative of Deane's "regarded as" claim.

The second ground -- that Deane's subsequent
employment in the field of nursing demonstrated that she
was not substantially limited in the major life activity of
nursing -- confuses her actual impairment with PMC's
misperception thereof, confusion caused in no small part by
Deane having raised, in the alternative, these wholly
inconsistent claims before the district court. In any event,
Deane's subsequent work history could, at most, reflect her
lack of an actual disability. It sheds no light, however, on
whether, at the time of her termination, PMC regarded her
impairment as substantially limiting her ability to work.

Finally, in determining whether PMC regarded Deane as
substantially limited in the major life activity of working,
the district court overlooked evidence which could have
precluded summary judgment. Specifically, the court failed
to consider the affidavit of Deane's vocational expert, Daniel
Rappucci, who attempted to tie PMC's perception of Deane's
injury to potential limitations in the workplace, both with
respect to the "class of jobs" and "broad range of jobs" from
which Deane would have been excluded.14 We need not,
_________________________________________________________________

14. Some courts have held that summary judgment is appropriate when
a plaintiff fails to produce vocational evidence with reference to the
factors delineated in 29 C.F.R. S 1630.2(j)(3)(ii), factors tailored
specifically to the major life activity of working and, instead, relies
solely
on the factors set forth in 29 C.F.R. S 1630.2(j)(2). See, e.g., Bolton v.
Scrivner, 36 F.2d 939, 944 (10th Cir. 1994), cert. denied, 115 S. Ct. 110
(1995); Dotson v. Electro-Wire Products, Inc. , 890 F. Supp. 982, 988-89
(D. Kan. 1995); Marschland v. Norfolk and Western Ry. Co., 876 F. Supp.
1528, 1539 (N.D. Ind. 1995), aff'd on other grounds, 81 F.3d 714 (7th
Cir. 1996). Such a bright-line rule appears to be inconsistent with the
wording of the Regulations, which provides that the factors enumerated
in 29 C.F.R. S 1630.2(j)(2) "should" be considered and that those listed
in 29 C.F.R. S 1630.2(j)(3)(ii) "may" be considered. In any event, Deane
presented vocational evidence tying PMC's perception of Deane's
impairment to the factors set forth in 29 C.F.R.S 1630.2(j)(3)(ii).

                                16



however, remand for a determination of whether, in light of
this vocational evidence, summary judgment should be
granted on Deane's "regarded as" claim because, as is
discussed below, she cannot, as a matter of law, prevail on
that claim.

B.

The second element of a prima facie case under the ADA
requires a plaintiff to demonstrate that he or she is a
"qualified individual." The ADA defines the term "qualified
individual with a disability" as an individual "who, with or
without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires." 42 U.S.C. S 12111 (8). The
interpretive appendix to the EEOC Regulations divides this
inquiry into two prongs. First, a court must determine
whether the individual satisfies the requisite skill,
experience, education and other job-related requirements of
the employment position that such individual holds or
desires. 29 C.F.R. app. S 1630.2(m). Second, the court must
determine whether the individual, with or without
reasonable accommodation, can perform the essential
functions of the position held or sought.15 Id. See also
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563
(7th Cir. 1996); Benson, 62 F.3d at 1112.

Determining whether an individual can, with or without
reasonable accommodation, perform the essential functions
of the position held or sought, is no easy task and
conceptually should be separated into two distinct steps.
First, a court should ask whether the disabled individual
can perform all the requisite job functions without
accommodation. If so, the individual obviously is qualified
and, because he or she can perform all job functions
without assistance, is not entitled to accommodation from
his or her employer. If, however, the individual cannot
perform all the requisite job functions without
accommodation, the court must determine whether there
_________________________________________________________________

15. Because PMC does not dispute Deane's general qualifications as a
registered nurse, there is no need to dwell on the first step of the
"qualified individual" analysis.
                                17



exists any reasonable accommodation to which the
individual would be entitled that would enable him or her
to perform the essential functions of the position.16
_________________________________________________________________

16. "In general, an accommodation is any change in the work
environment or in the way things are customarily done that enables an
individual with a disability to enjoy equal employment opportunities." 29
C.F.R. app. S 1630.2(o). The text of the ADA provides that "reasonable
accommodation" may include--

       (A) making existing facilities used by employees readily accessible
       to and usable by individuals with disabilities; and

       (B) job restructuring, part-time or modified work schedules,
       reassignment to a vacant position, acquisition or modifications of
       equipment or devices, appropriate adjustment or modifications of
       examinations, training materials or policies, the provision of
       qualified readers or interpreters, and other similar accommodations
       for individuals with disabilities.

42 U.S.C. S 12111(9) (emphasis added).

The EEOC Regulations further define "reasonable accommodation" to
include

       (I) modifications or adjustments to a job application process that
       enable a qualified applicant with a disability to be considered for
the
       position such applicant desires; or

       (ii) modifications or adjustments to the work environment, or to
the
       manner or circumstances under which the position held or desired
       is customarily performed, that enable a qualified individual with a
       disability to perform the essential functions of that position; or

       (iii) modifications or adjustments that enable a covered entity's
       employee with a disability to enjoy equal benefits and privileges
of
       employment as are enjoyed by its other similarly situated employees
       without disabilities.

29 C.F.R. S 1630.2(o)(1).

An individual's right to reasonable accommodation may be subject,
however, to certain limitations. For example, an employer is not required
to provide accommodation if it would impose an "undue hardship" on the
employer as defined in 29 C.F.R. S 1630.2(p)(1) and (2). An employer also
is not required to provide accommodation if the individual poses a "direct
threat" to the health or safety of himself/herself or others unless such
accommodation would either eliminate such risk or reduce it to an
acceptable level. 29 C.F.R. S 1630.2(r).

                                18



Several of our sister circuits have adopted a similar two
pronged inquiry modeled on the Supreme Court's
interpretation of the Rehabilitation Act in Arline, 480 U.S.
at 287 n.17. The Fifth Circuit, for example, has held that

       [f]irst, we must determine whether the individual could
       perform the essential functions of the job[without
       accommodation], i.e., functions that bear more than a
       marginal relationship to the job at issue. Second, if
       (but only if) we conclude that the individual is not able
       to perform the essential functions of the job, we must
       determine whether any reasonable accommodation by
       the employer would enable him to perform those
       functions.

Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.
1993) (emphasis added) (interpreting the Rehabilitation
Act), cert. denied, 511 U.S. 1011 (1994). See also Lowe v.
Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir.
1996) (interpreting the ADA); White v. York International
Corp., 45 F.3d 357, 361-62 (10th Cir. 1995) (interpreting
the ADA); Gilbert v. Frank, 949 F.2d 637, 640-42 (2d Cir.
1991) (interpreting the Rehabilitation Act).

While our re-formulation of the inquiry will invariably
lead to the same results that would be reached under
Chandler, our phraseology makes explicit what that of the
Fifth Circuit, if correctly applied, leaves implicit. That is,
our phraseology embodies the common sense notion that
any employee, disabled or otherwise, must be able to
perform all the requisite functions of a given job unless the
individual is entitled to accommodation by operation of the
ADA or a similar remedial statute. The problem with the
Fifth Circuit test is that it is easily misapplied and, as a
result, could lead to the mistaken impression that a
disabled individual -- or one perceived to be disabled --
who could perform the essential functions of a job without
accommodation as to those functions, but who could not
perform one or more marginal or nonessential tasks, should
be considered qualified without accommodation. That
conclusion, however, would overlook the fact that job
restructuring, i.e., excusing the performance of
nonessential functions or reassigning them to other
employees, is itself a statutorily defined form of

                                19
accommodation. 42 U.S.C. S 12111(9)(B).17 So
accommodated, then, and only then, would the individual
be able to perform the essential functions of the position.
Thus, the formulation we posit today better allows courts
and parties alike to remain focused on the fact that an
employee who is excused from performing marginal tasks is
being accommodated and, in turn, on whether such
accommodation is statutorily required.18

Applying our two-pronged inquiry to the facts of the case
before us, it is clear that Deane could not perform all the
requisite functions of her position. To arrive at this
conclusion, we, of course, shift our focus from PMC's
misperceptions back to Deane's actual capabilities and
limitations. To proceed otherwise would allow an employer's
misperceptions not only to render an individual disabled,
but to defeat his or her claim by rendering him or her
unqualified as well.

The record before us reveals that both PMC and Deane
acknowledged that lifting patients was a function or
condition, be it essential or otherwise, of employment as a
_________________________________________________________________

17. The dissent charges us with improperly importing the consideration
of nonessential functions into the qualified individual analysis for
"regarded as" plaintiffs. It is Congress, however, that defined
"accommodation" to include the restructuring or reassigning of
nonessential functions. 42 U.S.C. S 12111(9)(B). Thus, when determining
whether an individual can, with or without accommodation, perform the
essential functions, see 42 U.S.C. S 12111(8), courts necessarily must
look to whether the individual may be excused from the nonessential
functions that he or she cannot perform. Indeed, the lynchpin of the
ADA is that a disabled individual's qualifications are to be assessed only
after he or she is accommodated through job restructuring or otherwise.
Where that accommodation is not available, we do not read the ADA as
permitting the individual or the court to focus exclusively on the
essential functions of the relevant position.

18. It is clear that when Congress included job restructuring within the
definition of reasonable accommodation, it envisioned only the
restructuring or reallocating of the marginal functions of a given
position. As the appendix to the regulations indicates, an employer is
never required to reallocate essential functions, as essential functions
are, by definition, those that the employee must be able to perform. 29
C.F.R. app. S 1630.2(o).

                                20
registered nurse on the medical/surgical floor. That being
undisputed, both of Deane's treating physicians were of the
opinion that, in June of 1992, Deane was "permanently
disabled from heavy activity," that she could "return to
work but cannot do unrestricted lifting," and that her
limitations "should be considered permanent." 19 (See June
8, 1992 and June 16, 1992 letters of Drs. A. Lee Osterman
and Carl Sipowicz, respectively.) In addition, Deane testified
at her deposition that, while lifting patients was necessary
for complete patient care, her restrictions would have made
doing so dangerous and would have presented "an awful
risk" to both her and her patients.20 Thus, when she felt
ready to return to work, she informed PMC that she had a
lifting restriction and hoped to be put on light duty
assignments or be reassigned to another area of the
hospital. Most importantly, she never argued before the
district court on summary judgment that she could perform
the requisite heavy lifting. Rather, she contended that her
_________________________________________________________________

19. The fact that these diagnoses might have changed in the years
following Deane's injury is irrelevant to the issue of Deane's limitations
and capabilities at the time of the adverse employment action.

20. At Deane's deposition, the following exchange took place:

       Q. Was it ever necessary for a total care patient to put them in a
       wheelchair?

       A. When I was working there?

       Q. Yes.

       A. Yes. Not for their bath, but --

       Q. Could you have done that with a lifting restriction?

       A. With a lifting restriction, no. I'd like to rephrase that. I
suppose
       anything is possible, if you think about it, we are taking an awful
       risk. I may or may not have been able to get that patient out of
the
       bed and into the wheelchair. I don't think it's a worthwhile risk
to
       take when you take a chance that somebody could fall.

       Q. So that would have been dangerous for the patient?

       A. I would think so, yes.

       Q. Probably dangerous for you as well, correct?

       A. Possibly.
                                21



lifting restriction easily could have been accommodated
through either reassignment or job restructuring. Thus, it
is clear that Deane could not perform all functions of the
position without some form of accommodation.

Accordingly, we next must determine whether Deane is
entitled to accommodation and, if so, whether reasonable
accommodations exist that would enable her to perform the
essential functions of the position. Deane is at most
statutorily disabled in that, while her impairment does not
rise to the level of being a disability, PMC might well have
perceived her to be disabled. In other words, but for her
employer's misperception, she would not be afforded the
protections of the ADA at all. Viewed as such, we do not
believe that Congress intended that an individual who is
only perceived to be disabled would be entitled to
accommodation.

We begin our analysis of Congressional intent on this
issue with the text of the statute, itself. The core anti-
discrimination provision of the ADA provides that"[n]o
covered entity shall discriminate against a qualified
individual with a disability because of the disability of such
individual...." 42 U.S.C. S 12112(a) (emphasis added). Thus,
while far-reaching, the ADA is not boundless and only
prohibits discrimination engaged in "because of [the
individual's] disability." Id. In turn, the Act defines the term
"discriminate" as including an employer's failure to "make[ ]
reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with
a disability...." 42 U.S.C. S 12112(b)(5)(A). On its face,
however, this definition leaves open the question of which
limitations the employer must accommodate. Specifically, it
does not indicate whether an employer must accommodate
any limitation that adversely affects a disabled employee's
performance or only those limitations caused by his or her
disability. Reading the two subsections together, we are
convinced that the ADA requires an employer to
accommodate only those limitations caused by the
individual's disability.

This reading is borne out repeatedly in the appendix to
the Regulations regarding reasonable accommodation.
There it is stated, in explicit terms, that "[a]n individual

                                22



with a disability is `otherwise qualified'... if he or she is
qualified for a job, except that, because of the disability, he
or she needs a reasonable accommodation..."; that
"[e]mployers are obligated to make reasonable
accommodation only to the physical or mental limitations
resulting from the disability of a qualified individual..."; and
that "[w]hen a qualified individual with a disability has
requested a reasonable accommodation... the employer...
should... ascertain the precise job-related limitations
imposed by the individual's disability and how those
limitations could be overcome with a reasonable
accommodation. 29 C.F.R. app. S 1630.9 (emphasis added).

Likewise, requiring accommodation only for that which
actually renders an employee disabled is virtually mandated
by Congress's intent "to remove barriers which prevent
qualified individuals with disabilities from enjoying the
same employment opportunities that are available to
persons without disabilities." 29 C.F.R. app., Background
(emphasis added). With the passage of the ADA, Congress
intended not to erect impenetrable spheres of protection
around the disabled, but hoped merely "to level the playing
field" for them. Siefken v. Village of Arlington Heights, 65
F.3d 664, 666 (7th Cir. 1995). Thus, where an individual is
actually disabled, Congress recognized that reasonable
accommodations would often be necessary to, in a sense,
compensate for the individual's disability and allow him or
her to compete with the non-disabled. See Vande Zande, 44
F.3d at 541 (recognizing that Congress was "unwilling to
confine the concept of disability discrimination to cases in
which the disability is irrelevant to the performance of the
disabled person's job"). Once accommodated for his or her
disability, an individual should be on an equal playing field
with others and thereafter would be on his or her own to
deal with any non-disabling impairments just as would any
similarly impaired person without a disability.

In the context of an individual who is not actually
disabled but is merely "regarded as" such, i.e., one who is
only statutorily disabled, that which renders him or her
disabled is not the individual's impairment, if impairment
there be, but the employer's unfounded stereotypes, fear or
simple misperception that the impairment is serious

                                23



enough to be disabling. To compensate for a statutory
disability, then, the employer need only be dispossessed of
its misperception as it is that which renders the employee
disabled. Thereafter, the individual would be neither
actually nor statutorily disabled and, like any non-disabled
individual, would not be able to invoke the accommodation
provisions of the ADA for any non-disabling impairments --
including the impairment that initially might have given
rise to the employer's perception of a disability.
Accommodation, therefore, would play no role in leveling
the playing field.21 Indeed, to hold otherwise would give an
individual "regarded as" being disabled an undeserved
windfall were he or she to have a right to be accommodated
solely by virtue of the employer's misperception where
others with the same impairment would have no such right.22
_________________________________________________________________

21. The evil the "regarded as" provision was intended to combat was the
effect of "archaic attitudes," erroneous perceptions, and myths. Arline,
480 U.S. at 279, 285; Wooten, 58 F.3d at 385-86. As more than one
court has recognized, an ADA perception claim is akin to a racial
discrimination claim in which an individual is denied employment
because the employer erroneously perceived that the color of the
individual's skin somehow made him or her inferior. See, e.g., Vande
Zande, 44 F.3d at 541. Title VII proscribes such invidious discrimination
and protects individuals who suffer adverse consequences as a result
thereof. Such protection, however, does not include any form of
"accommodation" because it is presumed that the individuals can
perform their jobs without accommodation. Because the type of
discrimination faced by those who are perceived to be disabled so closely
resembles discrimination on the basis of race, with the only significant
difference being the object of the misperception, we see no reason not to
treat them in like fashion.

22. It is not by coincidence that this analysis dovetails neatly with the
EEOC's suggestion that, once a request for accommodation is made, the
employer and employee should engage in a flexible, interactive exchange
whereby the employer can become familiar with the precise contours of
the employee's limitations and can devise appropriate and effective
accommodations. 29 C.F.R. app. 1630.9. After an employee requests
accommodation, a meaningful interactive exchange could well rectify any
misperceptions regarding the employee's impairments. Ideally, once the
true facts are discovered, the employer could either provide reasonable
accommodation if it believes the employee to be actually disabled or
refuse to do so based on its belief that the employee is not, in fact,
disabled. Of course, if the employer takes the latter course, it will do
so

                                24



We are aware of only one decision of a Court of Appeals
that has held that accommodation is appropriate in the
context of a perceived disability claim, and no decision that
has held that it is not -- until this one. In Katz v. City
Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996), the plaintiff, a
recent heart-attack victim, sought accommodation from his
employer in the form of a part-time work schedule in
connection with his "actual" and "perceived" disability
claims. After the district court granted summary judgment
in favor of the employer, the First Circuit reversed on the
basis that there was enough evidence to reach the jury on
the perception claim. Id. at 32. In doing so, the court held
that, irrespective of whether the plaintiff was actually
disabled, he would be entitled to reasonable
accommodation if the employer perceived him to be
disabled, reasoning that

       Congress, when it provided for perception to be the
       basis of disability status, probably had principally in
       mind the more usual case in which a plaintiff has a
       long-term medical condition of some kind, and the
       employer exaggerates its significance by failing to make
       a reasonable accommodation. But both the language
       and the policy of the statute seem to us to offer
       protection as well to one who is not substantially
       disabled or even disabled at all but is wrongly
_________________________________________________________________

at the risk of an ADA lawsuit being filed against it alleging that the
employee is actually disabled. The employee would not, by definition,
however, be able to allege the facts necessary to make out a perception
claim because the employer's position would be that the employee is not
disabled.

We agree with Deane that PMC's efforts in this regard were dismal and
fell far below what has been suggested by the EEOC and required by us.
See Mengine v. Runyon, 114 F.3d 415, 420-21 (3d Cir. 1997). Had PMC
engaged in a meaningful interactive process, moreover, it assuredly
would have realized the minor nature of Deane's limitations. And, of
course, while Deane would not have been entitled to any form of
accommodation or protection under the ADA given the minor nature of
her limitations, PMC may well have decided to retain her in one of a
number of positions available during the relevant period of time,
rendering this litigation unnecessary. PMC deserves no medals.

                                25



       perceived to be so. And, of course, it may well be that
       Katz was both actually disabled and perceived to be so.

Id. at 33.

We disagree with both the First Circuit's reasoning and
its conclusion. Initially, the court's position that an
individual can be "both actually disabled and perceived to
be so" is contrary to the unambiguous definition of a
perceived disability in which an element of each of the three
categories of perceived disabilities is that the individual not
have an actual disability. 29 C.F.R. S 1630.2(l). Thus,
because the finding of an actual disability would prevent
one from satisfying an essential element of a perception
claim, and vice versa, it necessarily follows that an
individual simply cannot maintain a perception claim if he
or she is actually disabled. Accordingly, actual and
perceived disability claims cannot be presented as
simultaneous grounds for relief.23

Moreover, the First Circuit mischaracterized the
underlying intent of Congress in describing the "usual case"
of a perceived disability as "a long-term medical condition
of some kind, and the employer exaggerates its significance
by failing to make a reasonable accommodation." To the
contrary, it is clear that a person "who is not substantially
disabled or even disabled at all but is wrongly perceived to
be so" represents the paradigmatic perception plaintiff
envisioned by Congress. See 29 C.F.R. app. S 1630.2(l);
Senate Report at 23-24; House Labor Report at 53; House
Judiciary Report at 29-31. Further, an employer's failure to
make a reasonable accommodation, itself, cannot, as the
court suggested, render the employee disabled, as the issue
of reasonable accommodation becomes relevant to
determining whether he or she is qualified only after the
individual is found to be disabled.

Had the Katz court steered clear of these faulty premises,
it is by no means certain that it would have assumed, as it
did, that an individual who is only perceived to be disabled
_________________________________________________________________

23. They can, however, be effectively pled in the alternative where,
unlike
the case at bar, the plaintiff does not seek accommodation. See Olson,
101 F.3d at 952-55.

                                26



is entitled to accommodation from his or her employer. As
a result, we do not find the opinion persuasive.

Accordingly, we hold that where an individual claims only
to have been "regarded as" being disabled, that individual
is not entitled to accommodation under the ADA. Thus, if
an individual is perceived to be but is not actually disabled,
he or she cannot be considered a "qualified individual with
a disability" unless he or she can, without accommodation,
perform all the essential as well as the marginal functions
of the position held or sought.24

Of course, unlike the plaintiff in this case, the vast
majority of ADA plaintiffs claim to have an actual disability.
They must show simply that, once accommodated, they can
perform the essential functions of the position. Individuals
who are not actually disabled but are merely perceived to
be so are not entitled to accommodation. Only they must
demonstrate their ability to perform all the functions of the
position held or sought.

As a final matter, we must address a few points raised by
the dissent that, in our view, are misplaced. The dissent
repeatedly argues that a nondisabled individual with a
limiting impairment is precisely the individual that the
"regarded as" claim was designed to protect and that this
class of individuals will be precluded from bringing suit
under the ADA. That interpretation of the ADA is entirely
unsupportable, and the dissent recognizes that it leads to
a result even it concedes that some would call "untoward."
Dissent at 41.

As we discussed at footnote 11, supra, none of the
examples provided by Congress indicates a concern for
nondisabled individuals who are impaired so as to require
accommodation. Nevertheless, the dissent claims to find
_________________________________________________________________

24. Given the state of the law at the time the district court issued its
opinion, it is understandable that the court framed its analysis in terms
of whether lifting was an essential function of Deane's position. As this
opinion should make clear, however, the issue of whether a particular
task is essential or marginal is irrelevant in a perception case. Once it
is determined that an individual who is only perceived to be disabled
cannot perform all the functions of the position held or sought, he or she
is per se unqualified.

                                27



support for its interpretation in two examples provided by
the Supreme Court in Arline, 480 U.S. at 283 n.9. The first
is a child with cerebral palsy who was academically
competitive and was not physically threatening. That child,
however, had been excluded from public school not because
he needed accommodation, but because "his physical
appearance `produced a nauseating effect on his
classmates.' " Id. (quoting 117 Cong. Rec. 45974 (1971)).
The second of the Supreme Court's examples cited by the
dissent is of a woman crippled with arthritis who could
nevertheless do the job she sought. Like the prior example,
however, that woman was denied a job not because of her
limitations or need for accommodation, but because the
"college trustees [thought] `normal students shouldn't see
her.' " Id. Ironically, the dissent is correct that these two
individuals would be archetypal "regarded as" plaintiffs.
And, under today's holding, both could establish a prima
facie case under the ADA with ease. Significantly, however,
and consistent with today's holding, neither of those
individuals, nor any of those mentioned in the legislative
history or the regulations, required accommodation to
perform their jobs. Indeed, the dissent's concern for
nondisabled individuals who require accommodation, as we
believe it wrongly assumed the child and the woman did,
appears to be no one's but the author's.

Finally, we are among those who the dissent recognizes
will find that its interpretation impermissibly leads to a
result that is "untoward"; indeed, we suggest that its
interpretation impermissibly leads to a result that is
absurd. The dissent concedes that a "regarded as" plaintiff
can be terminated for not performing nonessential
functions, but only after establishing at trial that he or she
can perform the essential functions of the job and
prevailing in his or her ADA suit. In other words, the
dissent wishes to recognize a statutory right to
reinstatement for "regarded as" plaintiffs for whom it, in the
end, concedes that there is no lasting remedy. If Congress
did not create a meaningful remedy in a remedial statute
such as the ADA, however, we simply cannot believe that
Congress intended to create the right. That said, we are
wholly unpersuaded by the dissent's position that such
plaintiffs should retain the ability to "bring" ADA lawsuits,

                                28



see Dissent at 41, when the only tangible benefit that can
possibly be derived therefrom rests on an assumption that,
after years of expensive litigation, an employer who once
fired an individual for not being able to perform
nonessential tasks would have a change of heart and not
fire that individual again after being told by the court, or its
counsel, that it is free to do so.

For the same reason, we believe that the dissent's
invocation of the "mischief" rule is misplaced. Sir Edward
Coke's "mischief" rule provides, in pertinent part, as
follows: "The Office of Judges is always to make such
construction as to suppress the Mischief and advance the
Remedy." Heydon's Case, 3 Co. 7a, 7b, Magdalon College
Case, 11 Co. 66b, 73b (quoted in United States v. Second
Nat'l Bank of N. Miami, 502 F.2d 535, 541 (5th Cir. 1974)
(Emphasis supplied). Given its own recognition that its
position fails to guarantee any lasting remedy, the dissent's
reliance on the "mischief" rule is, at best, strained. More
importantly, the dissent misconceives the mischief that the
"regarded as" prong was intended to prevent in the first
instance. While the elimination of prejudice and
misconceptions might have motivated Congress to enact the
ADA, the mischief addressed was the exclusion of qualified
individuals from the workplace, mischief the dissent, in our
view, does not adequately address.
V.

Once the analysis discussed above is properly
understood, applying it to the case at hand is a simple
task. Indeed, Deane's own arguments are enough to defeat
her claim. On appeal, Deane concedes that she is not
disabled, but contends that she was perceived to be so by
PMC. Further, prior to her termination, she requested that
PMC accommodate her lifting restriction, a request that she
continues to press here, and the record is utterly devoid of
any evidence that, absent the requested accommodations,
she could have performed the lifting required of nurses on
the medical/surgical floor at the time she suffered the
adverse employment action. Thus, while not entitled to
accommodation because she was merely "regarded as"
being disabled, she effectively concedes that she cannot

                                29



perform the functions of her prior position without it. As a
result, she is not a qualified25 individual with a disability
and cannot, therefore, maintain a claim under the ADA.
Accordingly, the order of the district court granting PMC's
motion for summary judgment will be affirmed.
_________________________________________________________________

25. That is, because Deane concedes that she cannot perform all the
requisite job functions without accommodation and is not entitled to the
accommodation that she concedes is necessary to enable her to perform
the essential functions of the position, she cannot satisfy the qualified
prong under the test delineated above.

                                30



BECKER, Circuit Judge, dissenting.

Judge Barry has written a thoughtful and scholarly
opinion, but I cannot join it because it has construed the
prima facie case under the Americans With Disabilities Act
("ADA") in a way that forecloses a class of so-called
"regarded as" plaintiffs from bringing a lawsuit, and thereby
undermines Congressional intent. More specifically, I take
issue with the majority's holding that a "regarded as"
plaintiff, in order to be considered qualified under the ADA,
must show that she is able to perform all of the functions
of the relevant position without accommodation. It is my
view that a plaintiff need only show that she is able to
perform the essential functions of the relevant position
without accommodation.
I base my opinion on the statutory definition of a
"qualified individual" under the ADA. That definition, in
clear language, requires an analysis of the essential
functions only. This reading of the statutory language is
bolstered by materials published by the agencies charged
with enforcing the ADA which state, in no uncertain terms,
that non-essential functions have no place in determining
whether an individual is qualified. Moreover, consistent
with Congressional intent, this approach ensures that a
"regarded as" plaintiff, who has a non-disabling physical
impairment that prevents her from performing all of the
functions of the relevant position and that leads an
employer mistakenly to regard her as disabled, may bring
an ADA lawsuit if the employer institutes an adverse
employment decision based on that incorrect assessment of
her impairment. I would remand this case to the district
court in order for it to determine whether, as a factual
matter, the Pocono Medical Center regarded Stacy Deane as
disabled and whether lifting is an essential function of the
jobs she sought.

I.

As the majority correctly points out, the prima facie case
of an ADA claim includes three elements. First, a plaintiff
must show that she is disabled. Second, she must show
that she is qualified for the job she seeks. Finally, she must

                                31



show that she suffered some adverse employment action as
a result of her disability. My concern arises from the
majority's discussion of the second element of the prima
facie case -- whether the plaintiff is a qualified individual
with a disability.

A.

The ADA defines a qualified individual with a disability as
"an individual with a disability who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires." 42 U.S.C. S 12111(8).1 I agree with the
majority that a determination whether an individual is so
qualified is a two-step process. First, a court must examine
whether the plaintiff can perform the job without
accommodation. If so, then the plaintiff is qualified. If not,
then, as a second step in the process, a court must
examine whether the plaintiff can perform the job with a
reasonable accommodation. If so, the plaintiff is qualified.
If not, the plaintiff has failed to set out a necessary element
of the prima facie case.

I part company with the majority, however, when it
requires that, under the first step in this process, a
"regarded as" plaintiff must show that she can perform all
of the functions of the job, essential and non-essential,
without accommodation. My dissent is concerned only with
this first step in the analysis of the second element of the
prima facie case. I will assume arguendo that the majority
is correct that a "regarded as" plaintiff is not statutorily
entitled to an accommodation. I note, however, my
uncertainty about this holding. The issue was not briefed
by the parties, and I am simply unsure whether there are
wider, unforeseen ramifications that would render this
holding unwise. At all events, because of the manner in
which I would decide Deane's appeal, I do not reach the
contours of that second step.
_________________________________________________________________

1. Of course, the individual must also satisfy "the requisite skill,
experience, education and other job-related requirements of the
employment position." 29 C.F.R. S 1630.2(m). There is no dispute here
that Deane satisfies these requirements.

                                32



The majority reaches its conclusion by reasoning that an
individual who is unable to perform a non-essential
function of the job without some accommodation is
rendered unable to perform the essential functions of the
job without some accommodation because she has been
accommodated as to a non-essential function. In so
reasoning, the majority imports an examination of an
individual's capabilities as to non-essential functions into
an analysis that, by its statutory terms, is focused solely on
essential functions. The majority does so without
discussion as to how those statutory terms admit of any
ambiguity or how a plain reading of those terms would lead
to irrational results.

The majority supports its position with a strained reading
of the statute. The majority argues that because the statute
includes job restructuring as an accommodation, then an
individual who requires job restructuring must not be able
to perform the essential functions of the job without
accommodation because the job restructuring is itself an
accommodation, even though the job restructuring has only
accommodated the individual as to the non-essential
functions. Given the language of the statute, its purpose,
and executive interpretations thereof, this analysis is wholly
unpersuasive.
B.

The question as to the proper analysis of the first phase
in the second element of the prima facie case is, at bottom,
one of statutory interpretation. The "first step in
interpreting a statute is to determine whether the language
at issue has a plain and unambiguous meaning with regard
to the particular dispute in the case." Robinson v. Shell Oil
Co., ___ U.S. ___, 117 S. Ct. 843, 846 (1997). At least as I
read it, S 12111(8), which defines "qualified individual," is
plain and unambiguous. The first sentence of that section,
quoted in pertinent part in part I.A., makes it clear that the
phrase "with or without reasonable accommodation" refers
directly to "essential functions." In fact, there is nothing in
the sentence, other than "essential functions," to which
"with or without reasonable accommodation" seems to refer;
the only terms in the sentence for which an accommodation

                                33



would make any sense are "essential functions." In other
words, there is simply no mention of non-essential
functions in the statutory definition of "qualified
individuals" and thus no indication at all that the ADA is
concerned about whether an individual is capable of
performing such functions. Therefore, if an individual can
perform the essential functions of the job without
accommodation as to those functions, regardless whether
the individual can perform other functions of the job (with
or without accommodation), then that individual is qualified
under the ADA.

Unlike the majority, then, I believe that an individual
need not show that she can perform all of the functions of
the job without accommodation to satisfy the first step in
the second element of the prima facie case. Rather, she
needs to show only that she can perform the essential
functions of the job without accommodation as to those
functions.

C.

My reading is consistent with the object and policy of the
statute. See, e.g., Crandon v. United States, 494 U.S. 152,
158 (1990) ("In determining the meaning of the statute, we
look not only to the particular statutory language, but to
the design of the statute as a whole and to its object and
policy."); In re Arizona Appetito's Stores, Inc., 893 F.2d 216,
219 (9th Cir. 1990) ("[I]f the statutory language gives rise to
several different interpretations, we must adopt the
interpretation which `can most fairly be said to be
imbedded in the statute, in the sense of being most
harmonious with its scheme and with the general purposes
that Congress manifested.' " (quoting N.L.R.B. v. Lion Oil
Co., 352 U.S. 282, 297 (1957))).

Discussing a similar claim in the context of the
Rehabilitation Act, the Supreme Court wrote that Congress
intended the "regarded as" claim to combat society's
"accumulated myths and fears about disability and
disease." School Bd. of Nassau County v. Arline, 480 U.S.
273, 284 (1987). In order to combat these myths and fears,
we must be aware of the contexts in which they arise. Only

                                34



then can we be sure that we are promoting the
congressional goals of eliminating the "prejudiced attitudes
or the ignorance of others." Id. The majority, examining the
legislative history of and the regulations to the ADA,
describes a number of factual circumstances in which an
individual might be subject to these myths and fears.2 They
include individuals with cosmetic impairments (e.g., facial
scars) and high blood pressure, and individuals who have
either been misdiagnosed by a physician (e.g., a misread
X-ray) or are the subjects of rumors about their
health (e.g., that the individual is infected with Human
Immunodeficiency Virus ("HIV")). In each of these
circumstances, employers may regard these individuals as
disabled because of misperceptions about their non-limiting
physical impairments or their actual, as opposed to
misdiagnosed or rumored, health.

Missing from this catalogue of cases are those in which
a visible physical impairment limits the individual in some
respects but is not actually disabling. But the Supreme
Court in Arline cited such cases in its discussion of the
Rehabilitation Act, noting that Congress intended the
"regarded as" claim in that act to cover, for example, a
cerebral palsied child who was academically competitive
and posed no physical threat to others, and a woman
crippled with arthritis who could nevertheless do the job
she sought. See id. at 283 n.9.3 Although I have no way of
_________________________________________________________________

2. As the majority points out, see Maj. Op. at n.11, the legislative
history
of the ADA "regarded as" claim cites to, and largely endorses, the
Supreme Court's discussion in Arline of the purpose of protecting a
"regarded as" plaintiff.

3. Although left unstated by the Supreme Court, I assume that in these
examples the individuals suffered from some physical limitations that
required accommodation from the school, in the case of the child, or
from her employer, in the case of the woman, as to non-essential
functions of the school or the job. The majority argues that in neither of
these examples is an accommodation necessary. That argument, like my
own statement that each of these individuals indeed needed an
accommodation, is itself an assumption. Nothing in Arline or the
congressional statements to which it cites discloses whether these
individuals required some accommodation.

                                35



empirically measuring the size of this class of cases, I
suspect that the majority of instances in which an
individual suffers from the prejudiced attitudes or
ignorance of others occurs when the targeted individual
exhibits some visible and limiting, though non-disabling,
impairment, which affects the individual's capability to
perform non-essential functions but not essential functions.4

In such cases, the effects of myth and fear are evident.
Those encountering the individual are confronted
immediately with the impairment and are naturally forced
to assess its extent. If the impairment were somehow
limiting, it would be unsurprising, though unfortunate, if
prejudice or ignorance would lead those encountering the
individual to misperceive the impairment as disabling. At
least as I understand the ADA, this is exactly the scenario
the "regarded as" claim was designed to prevent.

With this purpose in mind, it becomes clear that the
proper reading of S 12111(8) is that the phrase "with or
without reasonable accommodation" refers only to
"essential functions." This reading ensures that the class of
potential "regarded as" plaintiffs who exhibit some limiting
but non-disabling physical impairment -- the very plaintiffs
who would directly suffer from myth and fear -- can bring
an ADA claim.

If, as the majority would otherwise have it, "without
reasonable accommodation" does not refer only to"essential
functions," then such potential plaintiffs would be
foreclosed from bringing an ADA claim because many of
_________________________________________________________________

That said, I believe that my assumption is more firmly grounded in
reality. A child with cerebral palsy would likely be excused from gym, for
example. A woman crippled with arthritis who worked as a clerk would
likely be excused from lifting heavy file boxes, for another example. At
all
events, I seriously doubt that the cerebral palsied child or the woman
crippled with arthritis would, as the majority claims, be able to show
that he or she could perform each and every function of the school or
the job "with ease." And, if he or she failed to make such a showing, the
"regarded as" claim would, under the majority's formulation, also fail.

4. Concomitantly, I suspect that the kinds of case described by the
majority are the minority.

                                36



them, limited by their physical impairment, cannot perform
all of the functions -- both essential and non-essential --
of the relevant employment position, and because they are
not entitled to any accommodation. If I am correct that
many of the "regarded as" plaintiffs will exhibit some
limiting physical impairment, then the majority has
significantly restricted the protection provided by the
"regarded as" claim.

D.

My reading of S 12111(8) also comports with the
interpretation given that provision by the Department of
Justice ("DOJ") and the Equal Employment Opportunity
Commission ("EEOC"), which are both charged with
enforcing the ADA.5

The EEOC publishes a technical assistance manual for
employers, other covered entities, and disabled persons to
learn about their respective responsibilities and rights
under the ADA. In describing the process to determine
whether an individual is qualified under the Act, the
manual states:

       (2) Determine if the individual can perform the
       essential functions of the job, with or without
       reasonable accommodation.

       This second step, a key aspect of nondiscrimination
       under the ADA, has two parts:
_________________________________________________________________

5. The regulations adopted to implement the ADA are of no additional
help in interpreting S 12111(8). The language in the regulations
essentially parrots that of the statute. See 29 C.F.R. S 1630.2(m)
(defining a qualified individual, inter alia, as one "who, with or without
reasonable accommodation, can perform the essential functions of such
position").

Although I cite to materials that have not been adopted pursuant to
the Administrative Procedures Act, including public notice and comment,
these materials are generally accorded some deference, though not the
substantial deference that Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), requires of formally adopted
regulations, interpretations, and the like. Cf. Koray v. Sizer, 21 F.3d
558,
562 (3d Cir. 1994) (according some deference to the internal agency
guidelines of the Bureau of Prisons that interpret statutory language).

                                37



       * Identifying "essential functions of the job"; and

       * Considering whether the person with a disability
       can perform these functions, unaided or with a
       "reasonable accommodation."

       The ADA requires an employer to focus on the essential
       functions of a job to determine whether a person with
       a disability is qualified. This is an important
       nondiscrimination requirement. Many people with
       disabilities who can perform essential job functions are
       denied employment because they cannot do things that
       are only marginal to the job.

Equal Employment Opportunity Commission, A Technical
Assistance Manual on the Employment Provisions (Title I) of
the Americans with Disabilities Act, II-12 (1992) (emphasis
in original). I can think of no plainer statement for my
position than the last paragraph I quote. The EEOC makes
a clear distinction between essential and non-essential
functions, and then states that it is only the essential
functions about which the ADA is concerned. Nothing in
this provision requires an examination whether an
individual is or is not capable of performing a non-essential
function.

Similarly, a pamphlet published jointly by the EEOC and
the DOJ states that "[r]equiring the ability to perform
`essential' functions assures that an individual with a
disability will not be considered unqualified simply because
of inability to perform marginal or incidental job functions."
U.S. Equal Employment Opportunity Commission & U.S.
Department of Justice, Civil Rights Division, The Americans
with Disabilities Act, Questions and Answers 2 (1992).
Finally, a handbook, also published jointly by the EEOC
and the DOJ states that "[t]he purpose of this second step
[in determining whether an individual is qualified] is to
ensure that individuals with disabilities who can perform
the essential functions of the position held or desired are
not denied employment opportunities because they are not
able to perform marginal functions of the position." U.S.
Equal Employment Opportunity Commission & U.S
Department of Justice, Americans with Disabilities
Handbook I-37 (1992).
                                38



Each of these documents explains S 12111(8) and the
regulations thereto. All of this material has one common
theme; the emphasis in the qualified individual analysis is
on the essential functions of the job only, separate and
apart from the non-essential functions. This material
therefore bolsters my view that an individual is qualified
under the ADA if she can perform the essential functions of
the job without accommodation as to those functions.

E.

The difference between my approach and that of the
majority can be highlighted by an example. Imagine a
plaintiff who has Tourette's syndrome.6 Assume that this
plaintiff is not disabled under the ADA, but she does show
visible signs of the syndrome, which, in her case, includes
the occasional blurting out of obscenities. Our plaintiff is a
janitor in a large office building. Assume that she can,
without any accommodation thereto, perform all of the
essential functions of her job. Assume, however, that a
non-essential function of her job is the use, at all times, of
polite, courteous language when interacting with other
workers in the office building. Because the nature of her job
is such that it need not be completed during the day, her
supervisor, at the plaintiff 's request, has restructured her
job so that the plaintiff works the night shift. That way, the
plaintiff will not come into frequent contact with other
workers in the office building. A new supervisor,
unfortunately, replaces the earlier supervisor. He learns of
our janitor's syndrome, regards the syndrome as a
disability, and fires the janitor because he believes she
cannot perform the job adequately.

Under the majority's formulation of the prima facie case,
the janitor cannot bring an ADA claim. Although she
satisfies the first element (she is regarded as disabled) and
_________________________________________________________________

6. Gilles de la Tourette's syndrome is a "syndrome of facial and vocal
tics
with onset in childhood, progressing to generalized jerking movements in
any part of the body . . . with coprolalia." Dorland's Illustrated Medical
Dictionary 1635 (27th ed. 1988). Coprolalia is the "compulsive,
stereotyped use of obscene, `filthy' language, particularly of words
relating to feces." Id. at 380.

                                39
the third element (she was fired because of her disability) of
the prima facie case, she cannot meet the test for the
second element. That is so because she cannot perform all
of the non-essential functions of the job without
accommodation, thereby failing the first step in the
analysis, and she is not statutorily entitled to an
accommodation, thereby failing the second step in the
analysis. She would be, therefore, unqualified.

As I would fashion the second element of the prima facie
case for an ADA claim, a plaintiff need only show that she
is capable of performing the essential functions of the
relevant employment position without accommodation as to
those functions. Under my suggested formulation of the
test, then, our janitor would be qualified for the job because
she would be able to perform all of the essential functions
of the job without accommodation thereto. Concededly, our
janitor, to perform all the functions of her job, must be
accommodated.7

I submit that our hypothetical janitor is exactly the type
of plaintiff Congress had in mind when it created the
"regarded as" claim. If we were to foreclose her ability to
bring an ADA claim, as the majority would have it, we
would be undermining congressional intent.

F.

In the present case, then, I believe a remand is in order.
There is no dispute that Deane cannot engage in heavy
lifting, a function of the nursing positions she sought at the
Pocono Medical Center. I believe there is, however, a
genuine issue of fact as to whether heavy lifting is an
essential function of those positions. Such a determination
is material to Deane's claim, at least as I read the ADA; if
heavy lifting is not an essential function, and if Deane can
perform the remainder of the essential functions of the
nursing positions she sought, then she has satisfied the
second element of the prima facie case.
_________________________________________________________________

7. However, I make no claim that such accommodation is statutorily
required. As I note supra part I.A., I reserve comment as to whether a
"regarded as" plaintiff is entitled to accommodation.

                                40



I believe further that Deane has also presented enough
evidence to raise a genuine issue of material fact as to
whether the Pocono Medical Center regarded her as
disabled, the first element of her prima facie case.8
II.

I recognize that my reading of the ADA might lead to a
superficially bizarre result, which, upon examination,
disappears but is, at all events, both logical and completely
consistent with congressional intent. To illustrate this
result, let us recall our hypothetical janitor. Under my
reading of the ADA, our janitor would be permitted to bring
a claim against her employer on the grounds that her
employer fired her because she was regarded as disabled
despite the fact that she could perform the essential
functions of the job without accommodation. Assume that
she wins her case, receives damages, and is returned to
this job. At this point, our janitor can no longer bring a
claim under the ADA, because she would be unable to meet
the first prong of the prima facie case. As we have seen, she
is not actually disabled, at least as that term is narrowly
defined by the ADA, and has no history of a disabling
impairment. Nor is she regarded as disabled, a statement I
make with confidence because, having lost the case against
it, her employer will presumably have been disabused of its
notion that our janitor is disabled. Her employer can
therefore immediately turn around and fire her for her
inability to perform all of the functions of the job.

To some, then, my interpretation impermissibly leads to
an untoward result. See, e.g., United States v. Schneider, 14
F.3d 876, 880 (3d Cir. 1994) ("It is the obligation of the
court to construe a statute to avoid absurd results, if
alternative interpretations are available and consistent with
the legislative purpose."). In the end, the employer gets
exactly what it initially wanted (to rid itself of our janitor),
but had to fight (and lose) a lawsuit to do it, while our
_________________________________________________________________

8. There is no dispute that Deane suffered an adverse employment
action, the third element of the prima facie case.

                                41



janitor suffers the very fate she was suing to avoid (losing
her job), but does so only after winning her case. 9

This result, however, conforms with the venerable
"mischief " rule, that canon of construction that "directs a
court to look to the `mischief and defect' that the statute
was intended to cure." Elliott Coal Mining Co. v. Director,
Office of Workers' Compensation Programs, 17 F.3d 616,
631 (3d Cir. 1994) (quoting Heydon's Case, 76 Eng. Rep.
637 (Ex. 1584)).10 Congress intended the "regarded as"
claim at issue here to cure the "mischief" of prejudice
against and ignorance about disability and disease, which
prejudice and ignorance might lead employers to make
employment decisions based on misperceptions.11 That is
exactly what our janitor did by bringing her lawsuit; she
exposed the myths and fears surrounding Tourette's
syndrome. The mischief having been cured, there is no
more work for the "regarded as" claim, or the ADA for that
matter, to do. No longer mistaken about Tourette's
syndrome, our janitor's employer now treats our janitor the
same as any other janitor in its employ. The goals of the
"regarded as" claim have thus been accomplished. As far as
_________________________________________________________________

9. The result does not mean that the janitor has ultimately been denied
some meaningful, lasting remedy, as the majority claims. As I have
already noted, she is potentially entitled to damages for the firing.

10. The majority's suggestion that I misuse the mischief rule is
incorrect.
The mischief rule is an interpretive technique employed to ensure that a
statute "will be construed to apply only so far as is needed to remedy the
perceived mischief." 2B Norman J. Singer, Sutherland on Statutes and
Statutory Construction, S 54.04 (5th ed. 1992). That is precisely what I
am endeavoring to do: remedy the prejudice and ignorance that distorts
employment decisions.

11. The majority's claim that I have misconceived the "mischief " that the
"regarded as" claim was meant to prevent is unfounded. The elimination
of prejudice and ignorance is integral to ensuring that otherwise
qualified individuals are not excluded from the workplace. As I explained
in part I.C., the majority's formulation of the prima facie case will
foreclose the ADA claims of many "regarded as" plaintiffs who may have
been harmed by such prejudice and ignorance. If they are unable to
bring ADA claims, such plaintiffs will be unable to eliminate that
prejudice and ignorance, thereby ensuring that otherwise qualified
individuals may suffer adverse employment decisions because they are
the subjects of misinformation.

                                42



the ADA is concerned, if our janitor's employer makes
irrational or unfair employment decisions based on factors
other than a disability, so be it.

But that is far from the end of the analysis. For, I
suspect that which is untoward is not the putative result of
my hypothetical but the hypothetical itself in that, under
the circumstances described, I seriously doubt that the
janitor would be fired. More likely, the employer would
probably not fire her but just have her work at night, either
because the employer is now enlightened or would prefer to
avoid a possible second lawsuit. In such event the purposes
of the ADA, unattainable under the majority's approach,
would be vindicated.

III.

The ADA presents subtle issues of statutory
interpretation, far more subtle and difficult I might add,
than those prescribed under the other anti-discrimination
statutes (Title VII, ADEA etc.). Compounding the difficulty
in this case was the unusual nature of Deane's claim. It is
unsurprising, then, that this case has generated
disagreement over the meaning of the ADA. With due
respect for the majority, I believe that my interpretation of
the relevant statutory language is the correct one. I
therefore respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                43
