Guess what: Under the ADA, sometimes you can be on the hook for disability discrimination even when your employee doesn’t prove that s/he actually has a disability. Say, whaaaat? How can that be? Title I of the ADA applies to qualified individuals with disabilities in hiring and employment. So how can an employee be protected if s/he can’t show s/he’s disabled? That certainly seems like a reasonable question. There’s the lesser known “regarded as” disabled standard that also protects applicants and employees. That’s what I’m talking about today, and, as I usually do, I present a few real, live case examples (or rather real case examples that at one time were live).
Let’s first review just a bit. The ADA defines “disability” as: 1) having “a physical or mental impairment that substantially limits one or more major life activities of such individual,” AND/OR (2) having “a record of such an impairment,” or (3) “being regarded as having such an impairment.” Obviously our focus is on #3. In other words, someone can seem disabled, but maybe isn’t (within the meaning of the ADA) but an employer treats him/her as such and then discriminates on the basis of the perceived disability. The employee isn’t actually disabled, but because the employer thought s/he was, and then discriminated, the employer violated the ADA. Similarly, an employee may actually be disabled under the ADA, though for whatever reason s/he doesn’t prove that s/he is, but the employer assumes a disability anyway and then fails to accommodate.
Let’s look at some of those real examples I promised, so we can get a better understanding. In Robinson v First State Community Action Agency, No. 17-3141 (3rd Cir., April 1, 2019) the employee’s manager told her that her performance was so poor that either she didn’t know what she was doing, or she had dyslexia. This employee took that statement to heart and had herself tested. Lo and behold, the test revealed that in fact she was dyslexic. She sent the manager a copy of the evaluation, and then requested reasonable accommodations from HR, specifically, “hands-on organized training”. The employer denied the request, told her to improve her performance and then fired her a few weeks later. Not surprisingly, the employee sued, alleging that her employer regarded her as disabled and then failed to offer reasonable accommodations. The jury agreed. The employer appealed, based on what it felt were erroneous jury instructions, but the employer, specifically waived its right to object to jury instructions at trial, and so the 3rd Circuit Court of Appeals upheld the verdict. Let’s come back to this case in a moment.
In EEOC v STME LLC, d/b/a Massage Envy, the US District Court for the Middle District of Florida declined to extend the “regarded as” definition to apply where an employer fired a non-disabled employee for traveling to West Africa for fear she would bring home the Ebola virus and infect the employer’s customers. Putting aside the question of whether that concern was valid, or whether the employer could have responded in a less extreme way, fear that an employee might become disabled is not the same as regarding an employee as disabled. (You can read more about this case, in my friend and colleague Eric Meyer’s post, which you can find here).
OK, let’s look at one more case example. In Nunes v HIE Holdings Inc, the employee, a former delivery driver stated he had asked for a transfer to a part-time warehouse position, because he had developed shoulder pain. He then claimed that initially the company approved the transfer but then denied it and forced him to resign. The employer cited budget cuts as the reason for the denial. There was only one problem with that statement: evidence showed that in fact the company had an open warehouse position at the time of the employee’s forced resignation. As you probably expected, the employee sued, alleging disability discrimination. The employer moved for summary judgment, arguing that the employee could not even properly plead a disability discrimination claim, because he wasn’t disabled under the ADA. Since, he couldn’t prove that his employer subjectively believed him to be disabled, he didn’t have a viable “regarded as” claim, according to this line of reasoning. The trial court agreed, granted summary judgment for the employer, and dismissed the claim.
On appeal, the 9th Circuit reversed. One of the issues centered around the definition of “regarded as” under the ADA prior to the amendments versus the expanded definition under the ADAAA. The 9th Circuit found that the trial court erroneously relied on the narrower, pre-ADAAA definition. It also found that the trial court’s ruling that the employee’s failure to produce evidence that the employer subjectively believed the employee to be disabled was error. The court held that the employee need only show that his employer terminated him “because of” its knowledge of the shoulder pain, regardless of whether the employer actually perceived the shoulder pain as a disability, and regardless of whether or not the shoulder pain amounted to an actual disability. The Ninth Circuit’s expansion of the scope of the “regarded-as” disability definition follows decisions in the First, Fifth, Sixth and Tenth Circuits which similarly defined the definition under the ADAAA. Further the court noted that while the ADA does not apply to transitory, minor impairments (as they are not a “disability” under the ADA) that is an affirmative defense. In other words, it was the employer’s responsibility to prove that the shoulder pain was transitory and minor, and the employer failed to do that. Since the 9th circuit felt that the employee had established a genuine issue of material fact as to whether his employer regarded him as having a disability, the court reversed the trial court’s ruling, and, if the parties do not settle, the case will need a trial.
OK, now let’s tie it all together. Here are what I believe to be the key takeaways:
- An employee may not actually be disabled, but if objective indications show that an employer believed the employee to be disabled and takes adverse action against an employee on that basis or fails to make reasonable accommodations for the perceived disability, the employer on that basis alone could be liable for discrimination under the ADA;
- Fear that an non-disabled employee will become disabled does not seem sufficient to support a “regarded as” claim (at least not according to one federal judge in Florida);
- An employee who is disabled, but who doesn’t have sufficient proof that s/he is but that the employer believes is disabled is still probably protected under the ADA/ADAAA.
So what should you do?
- review and update your policies and training to make sure you are addressing potential “regarded as disabled” issues;
- If you believe an employee is disabled, begin the interactive process and attempt to offer a reasonable accommodation;
- Remember, an employee does not have to utter any “magic words” to be eligible for a reasonable accommodation. If s/he indicates a condition that could be a disability, err on the side of caution;
- Speak with your friendly employment counsel to make sure your policies and practices comply with the ADA.
All right then. Let’s wrap it up here, shall we? See you next week!
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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