Does Partial Deafness Constitute a Disability Under the ADAAA? The Question Remains Unanswered

A federal court in Pennsylvania recently dismissed a lawsuit filed by a female newspaper page designer who claimed that she was laid off because of her gender and her deafness in one ear. Mengel v. Reading Eagle Company, No. 11-6151, (March 28, 2013).

The Americans with Disabilities Act Amendments Act (ADAAA or Act) was implemented to make it less difficult to establish a disability, and is more focused on whether an accommodation can be provided to allow an impaired individual to obtain or maintain employment. The regulations associated with the ADAAA, in fact, include a list of per se disabilities, for which no proof is required. Those disabilities include deafness, blindness, missing limbs, autism, cancer, and a number of other physical and mental impairments. However, the definition of “disability” under the ADAAA remains unchanged from the original Americans with Disabilities Act (ADA). Therefore, in order to be entitled to the rights and privileges established under the Act, an individual must show a physical or mental impairment that substantially limits a major life activity, or must show a record of such impairment, or that he or she is “regarded as” being limited in that way.

Christine Mengel began working for the Reading Eagle Company in 1999. In 2007, Mengel became deaf in one ear and began having balance problems as a result of surgery to remove a brain tumor. Mengel’s supervisors were aware of those problems, but Mengel continued to perform her job without accommodation.

In January 2009, Reading Eagle decided to perform a reduction-in-force layoff. It rated its employees in seven categories, and eliminated the lowest-scoring employees. The ratings categories included: work quality, productivity, versatility, tenure with the company, and interpersonal/teamwork skills. Mengel received a total score of 13 out of 46, the lowest in her department (the next closest score was a 24). Mengel and two of her coworkers were laid off from her department. The other two individuals were both male employees.

Mengel filed a lawsuit alleging both disability and gender discrimination, stating that she always had received good performance evaluations and that, therefore, her ranking was unfairly low because of her protected characteristics.

The district court granted summary judgment in favor of Reading Eagle on the gender claim, finding that the company had presented a legitimate, nondiscriminatory reason for Mengel being laid off—the employee rankings—and that Mengel had not shown sufficient evidence of pretext to overcome the summary judgment motion. The court based its determination on the fact that Reading Eagle produced the matrices and criteria that it used in ranking all of the employees for layoff, stating that “courts generally do not second-guess the wisdom of a business’[s] performance evaluations and ratings of its employees” when evidence of the same is proffered.

The court took an interesting path in analyzing Mengel’s disability claim, granting Reading Eagle’s motion for summary judgment on the basis that Mengel had failed to set forth a prima facie case of disability discrimination. To successfully present a prima facie case, Mengel was required to show that 1) she was a disabled person within the meaning of the ADAAA, 2) she was qualified to perform the essential functions of her job, with or without accommodation, and 3) she suffered an adverse employment action as a result of discrimination.The court found that Mengel had not set forth a prima facie case of disability discrimination because she was unable to provide evidence of the third element by showing “a logical inference of causation between the alleged disability and the adverse employment action.” In its analysis, the court was able to state—without definitively holding—that hearing loss in one ear may not constitute a disability within the meaning of the ADAAA. It did so by finding that although Mengel could not prove that her partial deafness was a disability, Mengel was able to show that she may have been “regarded as” disabled, because her managers were aware of her impairment. However, according to the court, Mengel’s prima facie case failed, largely because the company became aware of her impairment in 2007 and did not implement her layoff until 2009. The court found that this gap in time refuted the necessary causation, and dismissed Mengel’s case as a matter of law.

It would be unwise to draw any conclusions here regarding whether partial deafness can definitively be excluded as a “disability” under the ADAAA. The broadened definition of that term, along with the Act’s stated intention of including more individuals within its purview both lead to the conclusion that no blanket distinctions should be drawn from this district court decision. Attorneys for both employers and employees will be interested in an appellate determination of this issue.