The revised regulatory text also makes clear that the transitory and minor exception to a regarded as claim is a defense to a claim of discrimination and not part of an individual's prima facie case. The Department reiterates that to fall within this exception, the actual or perceived impairment must be both transitory (less than six months in duration) and minor. For example, an individual with a minor back injury could be regarded as an individual with a disability if the back impairment lasted or was anticipated to last more than six months. The Department notes that the revised regulatory text is consistent with the EEOC rule which added the transitory and minor exception to its general affirmative defense provision in its title I ADA regulation at 29 CFR 1630.15. Finally, in the NPRM, the Department proposed 35.108(f)(3) and 36.105(f)(3) which provided that an individual who is regarded as having such an impairment does not establish liability based on that alone. Instead, an individual can establish liability only when an individual proves that a private entity or covered entity discriminated on the basis of disability within the meaning of the ADA. This provision was intended to make it clear that in order to establish liability, an individual must establish coverage as a person with a disability, as well as establish that he or she had been subjected to an action prohibited by the ADA.


28 CFR § C_to_part_35

Scoping language

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