GREENBERG, Circuit Judge, dissenting.
I respectfully dissent. I recognize, of course, that a "qualified individual with a [p150] disability" need not actually have an impairment that substantially limits one or more of her major life activities as it is sufficient if the employer regards her as having such an impairment. 42 U.S.C. § 12102(2)(C). Thus, if a covered employer discriminated against such an individual in a manner barred by the Americans with Disabilities Act, it would violate the Act. 42 U.S.C. § 12112(a).
But, as I see this case, the issue here is different. As the majority has pointed out, the district court found that Deane was not actually disabled and she has not appealed that determination. The issue then is whether a person who is not actually disabled can demand a reasonable accommodation from an employer. After all it was Deane who claimed to need the lifting restriction and who claimed that she had to avoid repetitive manual tasks. To me the answer has to be no. I cannot understand how an employee who is not actually disabled can indicate that she must have an accommodation for her work, and then, when the employer takes her at her word but declines to grant the accommodation, assert a valid cause of action against the employer under the ADA. Congress did not pass the ADA to permit persons without a disability to demand accommodations.
It is helpful to consider the following hypothetical. Let us assume that employees in the heavy construction industry in the ordinary course of their employment regularly lift very heavy loads. An applicant for employment who is not actually disabled indicates to the employer that she cannot lift heavy loads but requests an accommodation to avoid the lifting. The prospective employer refuses to make the accommodation. In my view, the employer does not violate the ADA, and when Deane's case is analyzed it is not different. She, too, was not disabled but asked for an accommodation.
The majority believes that there is a genuine issue of material fact as to "whether PMC misperceived Deane as being disabled." Maj. Op. at 3. But that dispute does not matter, for the critical issue is not how PMC viewed Deane because there is simply no escape from the fact that an essential element of Deane's case is that "PMC failed to accommodate her lifting restriction." Maj. Op. at 5. After all, as the majority explains, "Deane maintains that she requires and is entitled to accommodation for her lifting restriction." Maj. Op. at 6. But no matter what misconceptions PMC may have had about Deane, it was Deane who requested the accommodation. Thus, even if PMC regarded her as more substantially impaired than she actually was, this misperception does not matter for she was not entitled to any accommodation. It is critical to remember that this is not a case in which the employer perceived the employee to be disabled and then refused to make the accommodation which it believed she needed.
The majority indicates that there is a genuine dispute of material fact regarding whether heavy lifting is an essential function of her former job. I agree that there is a genuine dispute of fact as to whether heavy lifting is an essential function of the job. But, just as the dispute of fact regarding PMC's perception of Deane does not matter, neither does the heavy lifting dispute because it is not material. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.C.t. 2505, 2510, 91 L. Ed. 2d 202 (1986). Inasmuch as Deane is not actually disabled, she has no right to an accommodation whether or not the accommodation would impact on her ability to perform the essential functions of the job. Furthermore, an employer can determine what it believes are the essential elements for a particular job without concern that its determination might be challenged under the ADA by a person who is not actually disabled.
In my view, this case is quite straightforward but somehow has become complicated. I respectfully dissent as I would affirm the summary judgment.