The only limitation is that the perceived impairment cannot be “minor and transitory.” 42 U.S.C. § 12102(3)(B). NOV relies on this provision in citing the absence of major life activities in which Plaintiffs’ conditions actually prevent them from engaging.

Moreover, as discussed supra, plaintiff has not alleged any physiological impairment as a result of her pregnancy that could conceivably fall within one of the extremely rare cases in which courts have found that conditions that arise out of pregnancy qualify as a disability.4 Further, rejecting pregnancy as a qualifying impairment for the “regarded as” provision “is in accordance with the statutory mandate that such provision does not apply to impairments that are transitory and minor. 42 U.S.C. § 12102(3)(B). Similarly, courts within this [C]ircuit, and the vast majority of courts elsewhere which have considered the question, have held that temporary disabilities do not trigger the protections of the ADA because individuals with temporary injuries are not disabled persons within the meaning of the act."

(citing Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). Likewise, doctors’ notes of stress-related physical ailments, documented records of alcoholism, reports of having only one functioning ear, or issuance of a handicapped parking placard do not constitute a record of an impairment as defined in 42 U.S.C. § 12102(1)(B). See Walton v. United States Marshals Serv., 492 F.3d 998, 1011 (9th Cir. 2007); Pinto v. Massapequa Public Schools, 820 F. Supp. 2d 404, 409 (E.D.N.Y. 2011).

10 In 2008, Congress passed the ADA Amendments Act of 2008, which, among other things, established a new standard for determining whether a person is “regarded as having such an impairment” for purposes of the ADA. See 42 U.S.C. § 12102(3)(A); Hilton v. Wright, 673 F.3d 120, 128-29 (2d Cir. 2012). Prior to these amendments, to prove that an individual was “regarded as” disabled required one to prove that he or she was regarded as having an impairment that substantially limited one or more major life activities.

It defines the term “disability” for purposes of this statute. Section 12102(4) sets forth certain rules of construction regarding the definition of disability, and Section 12102(4)(E)(i)(I) (which Ms. Doe specifically cites in her complaint) provides, as one such rule of construction, that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as … medication ….”

3 - 8 - JOINT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTIONS RE. SETTLEMENT impairments who (a) have a disability, as that term is defined in 42 U.S.C. §12102, and (b) have been or will be denied equal access to or enjoyment of the Disney Parks because of (i) physical barriers to access, or (ii) the lack of reasonable modifications to Disney’s policies and practices to permit such equal access or enjoyment. Among other things, the members of this class have been or will be denied equal access to or enjoyment of the parade viewing areas at the Disneyland Resort and the Walt Disney World Resort, and to public lockers, or parking lots at the Disneyland Resort.

Co, 438 F. App'x 415, 420 (6th Cir. 2011) (finding that "no matter what [the plaintiff] may be able to prove about how [the defendant] perceived his physical condition . . . the ADA explicitly states that the 'regarded as' definition 'shall not apply to impairments that are transitory and minor. . . . There is no question that [the plaintiff's] impairments are transitory, as his doctor expected his restrictions to be in effect for only a month or two") (quoting 42 U.S.C. § 12102(3)(B)); Cobb v. Florence City Bd. of Educ., 2013 U.S. Dist. LEXIS 133116, 2013 WL 5295777 at *10 (N.D. Ala. Sept.

Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 13 of 26 13 impairment be perceived by the employer to limit or “substantially limit” a major life activity. 42 U.S.C. § 12102(3)(A); 29 C.F.R. §§ 1630.2(g)(1)(iii) and 1630.

Regarded as disabled The ADA broadly defines 'disability' " to include "being regarded as having ... an impairment" that substantially limits one or more of an individual's major life activities." 42 U.S.C. § 12102(2). Plaintiff's only claim that he meets the statutory definition of disability is that he was erroneously perceived as disabled by the defendant.

Under the ADAAA, an individual is “regarded as” having an impairment “if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.A. 12102(a)(3)(A). “[E]ven 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.”