When the Americans with Disabilities Amendments Act (ADAAA) passed Congress in 2008 (remember when Congress used to pass employment laws??), one of the most talked about changes was that Congress declared that the question of whether an individual’s impairment was a “disability” should not require “extensive analysis.”

It was thought by some at the time, that courts would simply overlook the issue of who has a “disability”. 

But as my colleague Peter Murphy noted in a recent article for the Connecticut Law Tribune, courts are still looking at this issue:

[E]mployers may still challenge whether an employee has a recognizable disability, and employees must be prepared to demonstrate that their condition meets even the more liberal definitions under the ADAAA. When employees cannot meet that burden, disability discrimination cases will continue to be dismissed by federal judges.

In the article, Peter highlights several cases where courts have taken a recent Fifth Circuit decision to heart.  “[T]hough the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one,” said the court.

For employers, these cases don’t mean that you should challenge every employee’s request for an accommodation by first seeking evidence of a “disability.”  The ADAAA has still expanded the notion of who has a “disability.”  But for those borderline cases where the employee’s claim of a disability seems far-fetched, the cases highlighted by Peter offer a glimpse of a defense for employers.