California’s disability regulations state that a “Record or History of Disability” includes previously having, or being misclassified as having, a record or history of a mental or physical disability or special education health impairment of which the employer or other covered entity is aware.1

An individual who doesn’t currently have a disability but had a disability in the past meets the “record of” definition of disability. This includes individuals who have a history of or have been misclassified as having a mental or physical impairment that limits one or more major life activities, such as:2

• Someone with a history of cancer that’s currently in remission.
• A person with a history of mental illness.
• An individual whose face has been severely disfigured by burns, but who isn’t substantially limited in one or more major life activity.

Employees are “regarded as” having a disability if they’ve been subjected to an adverse employment action because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. The ADA contains an exception when the impairment is “transitory and minor.” A transitory impairment is an impairment with an actual or expected duration of six months or less.3

According to California’s disability regulations, a “perceived disability” includes:

• The employer treating the employee as if the individual had, or previously had, any mental or physical condition or adverse genetic information that makes achieving a major life activity difficult; or
• Subjecting an employee to a prohibited action based on an actual or perceived physical or mental disease, disorder, condition, cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability or its symptom, such as taking medication, whether or not the perceived condition limits or is perceived to limit a major life activity. Prohibited actions include non-selection, demotion, termination, involuntary transfer/reassignment or denial of any term, condition or privilege of employment.4

• Treating an employee adversely because of a perceived impairment violates the law, regardless of whether the impairment actually limits or is perceived to limit a major life activity.

Under California’s disability regulations, an individual has a “perceived potential disability” if an employer regards that person as having (or previously having) a condition with no present disabling effect, but that may become a disability in the future.5

1. 2 CCR sec. 11065(d)(4)