Appellate Court Considers "Regarded" Disabilities Case

June 10, 2002 ( - Today the 3rd US Circuit Court of Appeals will hear oral arguments on a case that could have an impact on the assumptions an employer makes in dealing with disabled workers.

The case, Buskirk v. Apollo Metals, focuses on a question that has divided the federal circuit courts – whether a “regarded as disabled” plaintiff can sue over the denial of a reasonable accommodation under the Americans with Disabilities Act (ADA).

Case History

Laborer Williard Buskirk was hired in 1981 but suffered a work-related injury in 1996 that left him unable to perform his previous job, according to the Legal Intelligencer.  Buskirk’s suit concedes that his injury did not meet the ADA’s definition of “disabled” but claimed that his employer “regarded” him as disabled. As a result of that assumption, Buskirk claims the company violated the ADA when it failed to accommodate him by considering him for several posts that became vacant.

The suit went to trial but was dismissed by US District Judge J. Curtis Joyner, who held that, as a matter of law, a “regarded as” plaintiff is not entitled to an accommodation.

The appeal argues that Joyner erred in dismissing the suit because the purpose of the ADA is to punish employers for making assumptions based on stereotypes that are not truly indicative of a worker’s abilities.  Plaintiff’s attorneys will also be urging the 3rd Circuit to follow a 1st Circuit decision that allows “regarded as” plaintiffs to seek reasonable accommodations.


However, the 3rd Circuit has already suggested in commentary in other cases that it is inclined to follow the lead of the 5th, 6th and 8th circuits — and the “overwhelming majority” of the federal district courts, according to the Intelligencer – all of which have held that a “regarded as” plaintiff cannot sue for a reasonable accommodation.

The report notes that in Deane v. Pocono Medical Center, the 3rd Circuit said there was “considerable force” to the argument that a plaintiff who is merely regarded as disabled cannot claim to be entitled to an accommodation for a disability he himself concedes does not exist. 

According to the employer’s attorney, in that case the court cautioned that if such claims were allowed, healthy employees could demand changes in their work environments based on nothing more than the misperceptions of their employers.