Whether requiring an individualized medical examination as a condition of employment to determine whether a job applicant or employee can safely perform the required duties of the position establishes, in and of itself, that an employer 'regards' the applicant or employee as disabled for purposes of a discrimination claim under the ADA

QUESTIONS PRESENTED The Americans with Disabilities Act of 1990 (“ADA”) prohibits discrimination on the basis of “disability.” One type of “disability”—called “regarded as” disability—exists when an employer takes an action the statute prohibits “because of an actual or perceived physical or mental impairment.” Recognizing that medical information is often relevant to employment, however, the ADA authorizes employers to require job applicants and employees to undergo medical examinations and to respond to medical inquiries subject to certain conditions. This case arises out of an employer’s medical-examination requirement made expressly to determine whether an applicant for a railroad police officer job could safely perform all of the required duties of the position. The Ninth Circuit held that a request for a follow-up medical test as part of the required examination established that the employer “regarded” the applicant as disabled and that, by requiring him to pay for the additional medical information, the employer “discriminated” against the applicant on the basis of a “regarded as” disability. The questions presented are: 1. Whether requiring an individualized medical examination as a condition of employment to determine whether a job applicant or employee can safely perform the required duties of the position establishes, in and of itself, that an employer “regards” the applicant or employee as disabled for purposes of a discrimination claim under the ADA. 2. Whether requiring an applicant or employee to pay for a required individualized medical examination establishes that an employer has unlawfully discriminated under the ADA.