NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0526n.06

                                           No. 19-1176

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
 JACQUELINE HARRISON,                               )                          Sep 10, 2020
                                                    )                      DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant
                                                    )
                                                    )
 v.
                                                    )           ON APPEAL FROM THE
                                              PARTS )           UNITED STATES DISTRICT
 SOAVE ENTERPRISES             L.L.C.   and
                                                    )           COURT FOR THE EASTERN
 GALORE L.L.C.
                                                    )           DISTRICT OF MICHIGAN
         Defendants-Appellees                       )



Before: GUY, BUSH, and MURPHY, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. The Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101 et seq., celebrating its thirtieth anniversary this year, embodies our national commitment

to equality of opportunity in the workplace for the disabled. This appeal concerns the definition

of a qualifying “disability” in light of the 2008 amendments that broadened coverage under the

Act.

       Jacqueline Harrison appeals the district court’s grant of summary judgment to Soave

Enterprises and Parts Galore (collectively, Defendants) on her ADA claim. The district court held

that Defendants might be “employers” subject to the requirements of the Act but granted them

summary judgment on the ground that Harrison failed to introduce direct evidence that she was

either “actually” disabled or “regarded as” disabled by those entities. We conclude that a dispute

of fact exists over whether Soave and Parts Galore can be liable to Harrison under the ADA, and

we disagree with the district court’s conclusion that Harrison failed to adduce sufficient evidence
Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


of an “actual” or “regarded-as” disability under the 2008 amendments to the ADA, known as the

ADA Amendments Act of 2008 (ADAAA). We thus REVERSE the district court’s grant of

summary judgment and REMAND for the district court’s assessment of the remaining elements

of Harrison’s ADA claim.

                                                I.

        In December 2005, Harrison became a manager of Parts Galore, a self-service used auto

parts salvage yard. In 2007, she moved to a second location, “Parts Galore II,” where she also

served as a manager. At these facilities customers can pay a two-dollar entrance fee, which allows

them to harvest and purchase parts from scrap cars and trucks located throughout many acres.

Harrison inspected the yard two to three times a day in a John Deere “Gator” vehicle. As part of

those inspections, she checked for improperly placed cars, monitored employees, and assessed

holes in the fence to help prevent theft.

       In 2014, Parts Galore hired Stephan A. “Tony” Murell as Regional Manager. He prepared

a preliminary report that documented problems at Parts Galore II. The underperformance at the

facility included holes along the fence (linked to possible incidents of theft), poorly inspected

vehicles (with dangerous parts (i.e., jacks) not having been removed), slacking employees, and a

deficient video feed monitor.

       Following the report, Murell mandated changes at Parts Galore II. Among other things, he

required Harrison to randomly spot-check five cars each day prior to their placement in the yard.

This was to ensure that all dangerous car parts had been properly removed. To conduct the spot

checks, Harrison had to look under each car’s hood and ensure that all of the engine fluids had

been drained, and then inspect beneath the vehicles to confirm the removal of the catalytic




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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


converters. The latter duty required Harrison to physically kneel down and view the underbelly of

the car.

           The new inspection procedure posed difficulties for Harrison, for in 2010 or 2011, Harrison

had suffered a torn ACL injury after falling in the shower. Knee surgery repaired her torn

meniscus, but she elected not to have her ACL repaired, as it would have required her to stop

taking medication that she needed and her doctor informed her that she could function without the

additional repair. Following her surgery Harrison continued to experience pain, which she

managed by taking medication as needed. However, she was no longer able to kneel to look

beneath the cars to perform the daily spot-check inspections.

           To address Harrison’s inability to kneel, Parts Galore supplied her with a mirror on an

extension arm, which she used to view the undercarriage of cars and confirm that the catalytic

converter had been removed. The mirror allowed Harrison to perform all of her work-related

duties without any limitation. Harrison also testified that she could perform many personal

activities around her home and neighborhood. These included window washing, floor scrubbing,

cleaning toilets, picking up parts, picking up batteries, participating in the community, cleaning up

neighborhoods, and delivering turkey. Harrison never requested any other accommodation to

perform her duties at Part Galore. In fact, she declared in her deposition that “[t]here was no part

of my job that I could not do.” She also testified that at the time of her termination of employment

(August 26, 2015), she was neither being treated for her ACL injury by a medical professional,

nor had any doctor-imposed medical or physical restrictions on her activities.

           A.     Harrison’s Termination

           On her last day at Parts Galore, Murell indicated to Harrison that she was being “terminated

because [she] can no longer do [her] duties because [of] a torn ACL.” Murell offered no other


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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


reason for the termination. In his deposition Murell admitted that he had told Harrison that her

ACL injury was the reason for her termination, but claimed that the actual reasons her employment

ended, which he did not tell her, were because of a “multitude of [her prior] offenses and incidents

of behavior.”

       B.       Procedural History

            1. Harrison’s EEOC Complaint

       Following her termination, Harrison filed a charge with the Equal Employment

Opportunity Commission (EEOC) against Ferrous Processing and Trading Company, the party

responsible for her hiring at Parts Galore. She alleged that she was fired because of her race, sex,

and/or disability. Neither Soave nor Parts Galore was named on this complaint. The EEOC issued

Harrison a right-to-sue letter.

            2. District Court Proceedings

       Harrison then filed a two-count complaint in the Eastern District of Michigan against Soave

and Parts Galore. In Count I, Harrison alleged that her termination violated the ADA, classifying

her torn ACL and “medical obesity” as qualifying disabilities. In Count II, Harrison alleged that

Soave had violated the Elliott-Larsen Civil Rights Act (ELCRA), based on its alleged weight

discrimination against her. Central to Harrison’s claims was the statement Murell had made that

she “[could] no longer perform [her] managerial duties because [of a] torn ACL.”

       Upon completion of discovery, Defendants moved for summary judgment on both counts.

They argued that (1) Harrison was directly employed by neither Soave nor Parts Galore; (2) she

was not a qualified person with a disability under the ADA; (3) she had not required, nor had she

requested, a reasonable accommodation for her alleged disability, which rendered her ADA claim




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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


moot; and (4) her deposition admissions (relating to the fact she was never diagnosed as medically

obese) rendered her ELCRA claim moot.

       The district court granted summary judgment for Defendants. The court concluded that

Ferrous, Parts Galore, and Soave were “so intertwined that they constitute[d] a single employer”

under the ADA and thus Parts Galore and Soave were capable of being named in the complaint.

Harrison v. Soave Enters., No. 16-14084, 

, at *2 (E.D. Mich. Jan. 23, 2019)

(citing Swallows v. Barnes & Noble Book Stores, 

, 993 (6th Cir. 1997)). Nonetheless,

the court granted summary judgment for several reasons. First, the court held that Harrison had

failed to present medical evidence of her knee condition as to create a genuine issue for trial that

she was either “actually disabled” or “regarded as” disabled under the ADA.

Second,

the court held that, even if Harrison had alleged a sufficient disability, she “extinguish[ed] any

potential claim of [her employer’s] refusal to accommodate,” given that she advanced “[no]

evidence that Defendants refused [her] requested accommodation.”

court

concluded that Harrison had evidence for a prima facie case of weight discrimination under the

ELCRA, the court held that she failed to offer any proof that Murell’s legitimate rationale for her

firing—Harrison’s inconsistency in performing car spot checks—was pretextual.

       Harrison now appeals only her ADA claim. She argues that, in concluding that she was

not disabled under the ADA, the district court incorrectly applied an analysis from Black v.

Roadway Express, Inc., 

, 450 (6th Cir. 2002), which has been superseded by the 2008

amendments to the ADA. Harrison further contends that the district court erred in its determination

that she failed to prove that Defendants “regarded” her as disabled and terminated her because of

that perception. Alternatively, Harrison argues that even if her claim based on direct evidence of

discrimination fails, the district court failed to conduct burden-shifting analysis based on indirect


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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


evidence. See Ferrari v. Ford Motor Co., 

, 891–92 (6th Cir. 2016), abrogated on

other grounds by Babb v. Maryville Anesthesiologists P.C., 

, 319 (6th Cir. 2019)

(citing McDonnell Douglas Corp. v. Green, 

(1973)).

                                                  II.

       We review de novo a district court’s grant of summary judgment under Rule 56 of the

Federal Rules of Civil Procedure. Chen v. Dow Chem. Co., 

, 400 (6th Cir. 2009).

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Under this standard, the moving party “bears the initial burden of establishing an absence of

evidence to support the non[-]moving party’s case.” Copeland v. Machulis, 

, 478–79

(6th Cir. 1995) (citing Celotex Corp. v. Catrett, 

, 323 (1986)). Here, Defendants bear

this burden as the parties moving for summary judgment. If they meet their burden of production,

the burden shifts to the non-moving party, to advance “significant probative evidence tending to

support the complaint.” Anderson v. Liberty Lobby, Inc., 

, 249 (1986) (citation

omitted). We assess “the facts and any inferences [that can be] drawn from the facts in the light

most favorable to the non-moving party.” Chapman v. UAW Local 1005, 

, 680 (6th

Cir. 2012) (en banc).

                                               III.

       A.      Harrison’s Employers

       Parts Galore and Soave first argue that neither entity was an employer of Harrison, and

therefore neither may be held liable for her employment-related claims. The district court rejected

this argument, stating that although Harrison testified that neither Parts Galore nor Soave

Enterprises was her employer, “companies can be so intertwined that they constitute a single


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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


employer.” Harrison, 

, at *2. On appeal, Parts Galore and Soave Enterprises

argue that the evidence of corporate interwovenness cited by the district court was not enough to

allow a reasonable jury to find that those companies were also subject to liability given her

admission that she was employed only by Ferrous. We disagree.

       Harrison testified only as to which business she considered to be her formal employer.

However, neither the ADA’s plain language nor our precedent limits liability solely to such formal

employers. Start with the statutory text. It states that no “covered entity shall discriminate against

a qualified individual on the basis of disability” in various terms and conditions of employment.

42 U.S.C. § 12112(a) (emphasis added). The ADA defines “covered entity” to include “an

employer.”

it defines “employer” as a “person engaged in an industry

affecting commerce” with a certain number of employees as well as “any agent of such person.”

does this statutory text require the “covered entity” that engages in

the illegal discrimination to be the formal employer of the disabled individual who is subjected to

the discrimination. Cf. Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New

England, Inc., 

, 16–18 (1st Cir. 1994).

       Likewise, our case law has noted that an “employer” under the ADA is not always limited

to the company with whom the aggrieved employee has a direct employment relationship.

Swallows v. Barnes & Noble Book Stores, Inc., 

, 993 (6th Cir. 1997) (noting that there

can be circumstances in “which a defendant that does not directly employ a plaintiff may still be

considered an ‘employer’ under [the ADA]”). In these situations, we follow three approaches to

examine whether two companies constitute one employer.

we examine

“whether two entities are so interrelated that they may be considered a ‘single employer’ or an

‘integrated enterprise.’” Id.; see, e.g., York v. Tenn. Crushed Stone Ass’n, 

(6th Cir.



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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


1982). The second approach “consider[s] whether one defendant has control over another

company’s employees sufficient to show that the two companies are acting as a ‘joint employer’

of those employees.” 

; see, e.g., Carrier Corp. v. NLRB, 

(6th Cir. 1985). The third addresses “whether the person or entity that took the allegedly illegal

employment action was acting as the agent of another company, which may then be held liable as

the plaintiffs’ employer.” 

; see, e.g., Deal v. State Farm Cnty. Mut. Ins.

Co. of Tex., 

(5th Cir. 1993).

       We conclude that a reasonable jury could find that Soave and Parts Galore are subject to

liability under this framework. Among other evidence concerning the relationship between the

entities, the individuals who were involved in the decision to terminate Harrison (and thus who

engaged in the alleged “discriminat[ion] against” her, 42 U.S.C. § 12112(a)) actually worked for

Parts Galore or Soave, not Ferrous. Tony Murell, the primary person who made the decision to

fire Harrison, was employed by Parts Galore. See Harrison, 

, at *3. And Marcia

Moss, who was present with Murell during Harrison’s termination, was employed by Soave as its

Human Resources Director. See

Galore make no claim that they do not

otherwise qualify as “employers” under the relevant statutory definition (which requires that they

be engaged in an industry affecting commerce and have the required number of employees). See

42 U.S.C. § 12111(5)(A). And the definition of employer encompasses an employer’s “agent”—

like Murell and Moss for Parts Galore and Soave, respectively. While Soave argues that Moss had

no role in the actual termination decision, a dispute of fact exists on that issue. And a factual

dispute exists over whether the different entities are “so interrelated” that they would be considered

a “single employer” or “integrated enterprise.” We therefore hold that Soave and Parts Galore are

potentially subject to liability under the ADA.



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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.




       B.      Qualifying Disabilities

       To prevail on a claim of discrimination under the ADA, a plaintiff must show that she “(1)

is disabled, (2) [is] otherwise qualified to perform the essential functions of the position, with or

without accommodation, and (3) suffered an adverse employment action because of…her

disability.” 

.

       At issue in this appeal is the first element. Under this element, a plaintiff can prove a

qualifying “disability” by demonstrating that she (1) is “actually disabled,” meaning the individual

possesses “a physical or mental impairment that substantially limits one or more major life

activities of such individual”; (2) has “a record of such an impairment”; or, (3) is “regarded as

having such an impairment.” 42 U.S.C. § 12102(1), (3).

       Harrison pursues the first and third avenues of element one—that she is “actually disabled”

or that she was “regarded” by Defendants “as having such an impairment.”

The district court found Harrison’s evidence insufficient to create a jury issue under either

approach. However, in doing so, the district court erroneously relied on Black v. Roadway Express,

Inc., 

, 450 (6th Cir. 2002), which applied a stricter standard for establishing disability

that no longer governs following the 2008 amendments to the ADA.

            1. “Actually Disabled” under Section 12102(1)(A).

       To prove that she is “actually disabled” under § 12102(1)(A), a plaintiff must show “a

physical or mental impairment that substantially limits one or more major life activities.” The

statute enumerates a non-exhaustive list of “major life activities,” which include “caring for

oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and

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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


working.” 42 U.S.C. § 12102(2)(A). And, importantly, in accordance with the directives offered

by the Code of Federal Regulations, this court has held that “the term ‘major’ shall not be

interpreted strictly to create a demanding standard.” Hostettler v. Coll. of Wooster, 

,

853 (6th Cir. 2018) (quoting 29 C.F.R. § 1630.2(i)(2)). We adopted this less-strict interpretation

because, “[i]n keeping with the remedial purposes of the ADAAA, ‘[t]he definition of disability’

under the ADA ‘shall be construed in favor of broad coverage.’”

§ 12102(4)(A)). “That is because the primary concern of the ADA is ‘whether covered entities

have complied with their obligations and whether discrimination has occurred,’ not whether an

individual’s impairment is a disability.”

§ 1630.2(j)(1)(iii)).

        Under the applicable ADA regulations, we “determine whether a disability substantially

limits major life activities” through comparison of “the person claiming a disability to ‘most people

in the general population.’”

§ 1630.2(j)(1)(ii)). “‘An impairment need not

prevent, or significantly or severely restrict . . . a major life activity’ to be substantially limiting.”

(quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Similar to the term “major life activities,”

“[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and

“is not meant to be a demanding standard.”

(quoting 29 C.F.R. § 1630.2(j)(1)(i)).

        Indeed, a plaintiff need not show that her disability renders her unable to work, see

Morrissey v. Laurel Health Care Co., 

, 300 (6th Cir. 2019), and a plaintiff need not

even tell her employer about her specific diagnosis. See

enough that a plaintiff

simply tells her employer that she has certain limitations in relation to her work “because she

suffer[s] from a disability as defined by the ADA.”

employer] that she

could not work more than twelve hours per shift because she suffered from a disability as defined

by the ADA. That was enough.”); see also Hammon v. DHL Airways, Inc., 

, 450 (6th



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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


Cir. 1999) (“An employer has notice of the employee’s disability when the employee tells the

employer that he is disabled.” (citation omitted)); Cady v. Remington Arms Co, 665 F. App’x 413,

417 (6th Cir. 2016) (“[T]he employee need not use the word ‘disabled,’ but the employer must

know enough information about the employee’s condition to conclude that he is disabled. Relevant

information could include, among other things, a diagnosis, a treatment plan, apparent severe

symptoms, and physician-imposed work restrictions.” (internal citation omitted)).

       Therefore, framed properly in light of post-2008 ADA law, “the question before us is

whether [Harrison] submitted enough evidence to show that she is substantially limited in her

ability to [kneel or walk].” 

. And, ultimately, based on our case law

that properly applies the post-2008 ADA standards for disability, we conclude that Harrison has

sufficient evidence to allow a reasonable jury to find “a physical or mental impairment that

substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).

       In Morrissey, for instance, we concluded that the plaintiff had submitted enough evidence

to show that she was substantially limited in her ability to walk, stand, lift or bend, even with her

admission that she “did not have a specific limitation on the distance she could walk, the amount

of time she could stand, the amount of bending she could do, or the amount of weight she could

. It was enough that plaintiff alleged that, “after an eight-to twelve-hour

shift, she had difficulty walking, standing, lifting and bending,” and “she had so much trouble

bending over that it was difficult to put on her underwear.”

also found

significant that plaintiff’s daughter submitted an affidavit in which she stated that her mother “did

not walk at all or walked with a slight hunch and a pained expression after completing a day of

work.”

Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


        Similarly, in Hostettler, we concluded that plaintiff had sufficiently shown that her mix of

postpartum depression and separation anxiety, which impeded her ability to work full-time and

required her to ask for a modified work schedule from her employer, constituted a “disability”

under the post-2008 

–54. In doing so, we dismissed defendant’s contention

that because plaintiff’s panic attacks were limited to several minute spans at a time, they did not

substantially limit any major life activity.

. Instead, we found the episodic nature of the

disability to “make[] no difference under the ADA,” as “long as the impairment ‘would

substantially limit a major life activity when active,”

§ 12102(4)(D)); and

in that case, the attacks substantially limited plaintiff’s ability to “care for herself, sleep, walk, or

speak, among others.” Id.; see 42 U.S.C. § 12102(2).

        Under the directives of our case law and based on the regulations that direct us to construct

the term “substantially limits” “broadly in favor of expansive coverage,” 29 C.F.R. §

1630.2(j)(1)(i), we conclude that Harrison has satisfied the first element of a prima facie case of

disability discrimination under the ADA. First, Harrison has shown that she has a “physical . . .

impairment.” 42 U.S.C. § 12102(1)(A). Namely, Harrison presented evidence that in 2010 she

suffered an injury to her right knee in the shower, resulting in a damaged meniscus and torn ACL.

Thereafter, Harrison was required to have surgery on her meniscus, though she elected not to have

her ACL repaired, as it would have required her to stop taking medication that she needed and her

doctor informed her she could function without the surgery. The meniscus surgery required her to

take two days off of work, undergo a full treatment of physical therapy, and be under the short-

term supervision from a physician. These circumstances qualify Harrison’s knee injury as a

physical impairment under the ADAAA. See 42 U.S.C. § 12102(4)(A); Barlia v. MWI Veterinary

Supply, Inc., 721 F. App’x 439, 445 (6th Cir. 2018) (“Congress amended the ADA in 2008 to state


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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


that the term [disability] should be construed ‘in favor of broad coverage . . . , to the maximum

extent permitted by the [ADA’s] terms.’” (quoting 42 U.S.C. § 12102(4)(A)).

       Second, similar to our evaluation of the plaintiffs’ evidence in Hostettler and Morrissey,

we conclude that Harrison has sufficient proof to show that her physical impairment “substantially

limits” a major life activity. 42 U.S.C. § 12102(1)(A), (2)(A). Namely, Harrison testified

categorically that because of her torn, unrepaired ACL, she cannot kneel to this day. Indeed, the

record shows that she was unable to kneel to look under cars, so she was provided a mirror for her

to undertake this task. The statute provides a non-exhaustive list of “major life activities,”

including “standing, lifting, [and] bending,” 42 U.S.C. § 12102(2)(A), and regulations add

“sitting” and “reaching” as additional examples, 29 C.F.R. § 1630.2(i)(1)(i).        Kneeling fits

comfortably within this list. Moreover, a reasonable juror could determine that the majority of the

general population can kneel and does not share Harrison’s physical limitation. 29 C.F.R. §

1630.2(j)(l)(v) (“The comparison of an individual’s performance of a major life activity to the

performance of the same major life activity by most people in the general population usually will

not require scientific, medical, or statistical analysis.”). Therefore, because Harrison’s physical

impairment—her knee injury—“substantially limits one or more major life activities,” the district

court erred in holding as a matter of law based on the record as it stands that Harrison was not

“actually disabled” under § 12102(1)(A). There is a genuine dispute regarding whether she was

“actually disabled” under § 12102(1)(A), which necessitates our reversal of the district court’s

summary judgment based on this issue.




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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


           2. “Regarded As” Disabled under Section 12102(1)(C).

       Harrison also has sufficient evidence for a reasonable jury to find that she has a qualifying

ADA “disability” under the “regarded as having [] an impairment” by her employer prong, see 42

U.S.C. § 12102(1)(C)), given Defendants’ knowledge of her knee injury.

       Through the 2008 amendments, Congress liberalized the “regarded as having an

impairment” avenue of proving a disability under § 12102. Prior to the 2008 amendments, a

plaintiff was required to show that her employer (1) “mistakenly believe[d] that [she] ha[d] a

physical impairment that substantially limits one or more major life activities” or, alternatively,

that the employer (2) “mistakenly believe[d] that an actual, nonlimiting impairment substantially

limits one or more major life activities.” Sutton v. United Air Lines, Inc., 

, 489 (1999);

accord Daugherty v. Sajar Plastics, Inc., 

, 704 (6th Cir. 2008). Under both scenarios,

it was “necessary that [an employer] entertain misperceptions about the individual;” or in other

words, the employer had to “believe either” that the employee “ha[d] a substantially limiting

impairment that [she] [did] not have or that [she] ha[d] a substantially limiting impairment when,

in fact, the impairment is not so limiting.” 

; accord 

. However, in 2008, Congress deliberately relaxed the standard “because it believed that

Sutton (among other Supreme Court decisions) unduly ‘narrowed the broad scope of protection

intended to be afforded by the ADA,’” and thereby “eliminat[ed] protection for many individuals

whom Congress intended to protect.” Babb v. Maryville Anesthesiologists P.C., 

,

318 (6th Cir. 2019) (quoting ADA Amendments Act of 2008, Pub. L. 110-325, § 2(a)(4), 122 Stat.

3553 (2008)). Accordingly, the “regarded as” provision of the ADA now states that, for an

employee to make out a “regarded as” claim, the employee must establish: “that he or she has been

subjected to an action prohibited under this chapter because of an actual or perceived physical or


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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


mental impairment whether or not the impairment limits or is perceived to limit a major life

activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). There is a limitation to this provision,

however: “regarded as” impairments “shall not apply to impairments that are transitory and

minor.” 

(quoting 42 U.S.C. § 12102(3)(B) (emphasis added)). Therefore,

the “transitory and minor” limitation acts as an affirmative defense of which the employer bears

the burden of proving.

state the threshold condition of a ‘regarded as’ ADA claim, an

employee need only show that [her] employer believed [she] had a ‘physical or mental

impairment,’ as that term is defined in federal regulations.”

then rebut

this showing by pointing to objective evidence ‘that the impairment is (in the case of an actual

impairment) or would be (in the case of a perceived impairment) both transitory and minor.’”

§ 1630.15(f)); see Baum v. Metro Restoration Servs., Inc., 764 F. App’x 543,

547 (6th Cir. 2019); Neely v. Benchmark Family Servs., 640 F. App’x 429, 435 (6th Cir. 2016);

Bailey v. Real Time Staffing Servs., 543 F. App’x 520, 523 (6th Cir. 2013).

       Applying the clarified “regarded as” standard to Harrison’s case, we conclude that a

genuine dispute of material fact exists with respect to Harrison’s perceived disability, and her

employer’s perception of such. The record indicates that Harrison’s employers knew about her

injury because: (1) when requesting the accommodation for her injury—the mirror—Harrison

referenced her ACL injury to validate the request; and (2) during her firing, Murell referenced

Harrison’s ACL injury. This is more than enough evidence from which a reasonable juror could

find that in December 2015, Defendants genuinely believed that Harrison had a knee injury that

affected her ability to kneel and work—therefore, representing a disability that we deem would

qualify as a “physical impairment” under the ADA given it affected Harrison’s “musculoskeletal”


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Case No. 19-1176, Harrison v. Soave Enterprises, L.L.C. and Parts Galore, L.L.C.


system. 29 C.F.R. § 1630.2(i)(1)(ii). Furthermore, given that Harrison testified that she injured

her knee in 2011, the five-year span between the injury and her termination suggests that the

impairment was neither “minor” nor “transitory.” 29 CFR § 1630.15(f). Although Defendants

highlight that (1) Harrison could perform other household tasks and (2) Harrison testified that she

had no other limitations across other activities, these facts do not necessarily rebut the notion that

Harrison’s employers still could have “perceived” her “as having an impairment” and fired her

because of that perceived limitation. This is particularly true, given the updated standard under

the ADA, which no longer requires the employer to believe the “impairment limits…a major life

activity.” 42 U.S.C. § 12102(3)(A).

       In light of the above, we hold, in the alternative, that Harrison has sufficient evidence for

a reasonable jury to find that she satisfied the “regarded as” avenue of a qualifying ADA disability.

                                                 IV.

       We conclude that a reasonable jury could find that Parts Galore and Soave are liable to

Harrison under the ADA. And given our holdings that Harrison has presented sufficient evidence

to create a genuine dispute of material fact regarding whether she is “actually disabled” or

“regarded as” disabled under § 12102(1)(A) and (C), we REVERSE the district court’s grant of

summary judgment in favor of Defendants. Therefore, we REMAND this case for further

proceedings consistent with this opinion.




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