“Regarded as disabled,”
One very tricky area of the ADA disability guidelines revolves around “regarded as disabled,” a key phrase in the law. What’s this mean? Simply that it’s possible to discriminate against an employee not only on account of a disability, but on account of a disability you falsely think the employee has, or a disability that isn’t nearly as serious as you make it out to be.
Why is this illegal?
The Americans with Disabilities Act aims to prevent discrimination on the basis of unfair, biased, and stereotypical attitudes about disabilities.
To avoid the “regarded as disabled” trap, it’s important to remember that you’re not an expert in medicine or the law, but you are an expert on what it takes to do the job, with or without reasonable accommodation.
Let’s look at a case where a manager fell down in this very area.
ADA Disabilities: Perception and Reality
Brad Hipperberg watched as Carmen Ippolito, his secretary/receptionist, struggled through the front door tugging a cylinder on wheels. “What on earth is that, Carmen?” asked Brad, the owner and president of a small plumbing company. “And are you supposed to be back at work?”
“It’s oxygen,” she said, panting. “The doctor told me I could come back if I had access to supplemental oxygen. I thought I’d put the cylinder under my desk, and I can put on the mask for a few minutes during my morning and afternoon breaks.”
“He said that, did he?” Brad said. “That’s interesting, but we can’t have you looking like you’re in a World War II movie out there at the front desk.”
“If you don’t want me to use the oxygen at my desk, I can take it into the break room,” Carmen said. “There’s empty space next to the soda machine where I can stow it.”
“No,” Brad said firmly. “I don’t want bottled gas out here in the offices. That kind of stuff needs special storage. If you can’t do the job without oxygen, you’ve got problems that are beyond my ability to deal with. I’ll have to let you go.”
Brad did end up terminating Carmen, and got sued. Carmen said Brad regarded her as disabled when she wasn’t, and discriminated against her on that basis.
A jury agreed with Carmen’s ADA lawsuit. It said her medical problem didn’t substantially limit her ability to do her job, as long as she could have oxygen, which was a reasonable accommodation under ADA guidelines. Firing her was illegal, the jury said, and awarded her $50,000 in damages.
(Kelly v. Metallics West)
How the supervisor slipped up:
Brad’s so-called “safety concerns” were overblown. He was shocked by the idea of an employee using oxygen at work, something he associated with hospitals, grave illness and death. So he failed to stop and consider that Carmen’s condition didn’t necessarily mean she couldn’t do her job.
Even when an employee has a limitation on his or her ability to do the job, and admits it, this doesn’t necessarily mean you’re safe in seeing him or her as disabled. Here’s a situation where something like that happened.
Does Perception equal Reality with ADA Disabilities?
Supervisor Martin McCormick scratched his head. “Gee, I guess you can ride with me to the weekly meeting,” he said. “But what are you gonna do on days when we can’t coordinate?”
Colin Gillette sighed. “I know it’s a pain,” he said. “Believe me, it’s a pain for me, too. But ever since I started chemotherapy for my cancer, I don’t seem to have very good short-term memory. I’m worried I’ll get lost going to off-site locations.”
“That could be a real problem if the reorganization they’re discussing at head office goes through,” Martin said. “I understand they may close this plant, and you’d have to learn new driving directions to a new facility, either over in Shipmansburg or in Donnertown.”
“I’ll have to cross that bridge when I come to it,” Colin said.
The company did proceed with its reorganization, and Colin wasn’t one of the people offered a job at another facility when the plant where he worked was closed. He filed an ADA lawsuit in federal court, alleging that the company terminated him because it wrongly assumed his memory problem was a protected ADA disability.
Not only did Colin win his case, a jury awarded him a hefty $200,000 in damages, and a federal court refused to overturn the verdict. Colin’s memory lapses didn’t amount to an inability to do his job, and the company had no other valid reason for failing to retain him, since his performance record was excellent. (Eshelman v. Agere Systems)
How the supervisor slipped up:
Martin’s assumption that Colin’s memory lapses were a big problem was just plain wrong. There were a lot of ways around them. Colin could have sat in on meetings by teleconference, and when the time came for him to learn how to drive to the new facility, the company could have provided maps, voiced directions on a tape or CD, or other aids.
ADA Guidelines for managers:
Under the Americans with Disabilities Act, you can’t assume that a person is disabled just because of a condition that you as a layman might think are disabling. If you have doubts, it’s best to try to accommodate the employee first before taking any adverse action. And that thought leads us to the issue of accommodation.
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