Be Wary When Dealing with Perceived Disabilities

August 01, 2007

Summary
One of the articles in our "Employment Law Briefing newsletter highlighting important issues in Employment Law, featuring the following articles: 1. No age discrimination when replacement not substantially younger 2. Be wary when dealing with perceived disabilities 3. Employer’s Employer’s failure to act on a complaint leads to Title VII liability 4. Is closeness in time enough to establish retaliation?

The Americans with Disabilities Act (ADA) bars employers from discriminating against employees who are perceived to have a disability. In EEOC v. Heartway Corp., the Tenth Circuit considered whether a nursing home perceived a cook as disabled and fired her because of that disability.

Hired, then fired

An applicant for a job in a nursing home's kitchen was asked on the application: "To protect our residents from disease, please indicate if you are under a doctor's care or taking medications now." Despite being regularly monitored for hepatitis C, she checked the "no" box because none had been detected in her blood for nearly two years, though her doctor told her she would always have chronic hepatitis. The nursing home hired her and she became a cook.

Eight months later, the cook accidentally cut her hand at work, and the nursing home learned that she had hepatitis. She was told she couldn't return to work without a doctor's note, but she was fired before she could turn it in.

When the cook asked the facility's administrator to reinstate her, he allegedly said she couldn't "work in our kitchen" with hepatitis. She asked if she was being fired because of her hepatitis; he said, "No, I'm firing you because you falsified information on your application."

The EEOC takes her case

The cook filed a discrimination charge with the EEOC. During its investigation, the administrator asked the investigator: "How would you like to eat food containing her blood, if she ever cut her finger?" He also warned of "a mass exodus from the nursing home" if this "got out." The EEOC filed a complaint, alleging that firing the cook violated the ADA's Title I "because it regarded her as disabled."

At trial, the EEOC - to prove that the employer had violated the ADA by firing the cook - had to prove that she had a disability. The ADA broadly defines "disability" as:

A physical or mental impairment that substantially limits one or more of a person's major life activities,

  1. A record of such an impairment, or
  1. Being regarded as having such an impairment.

The EEOC argued only that the home regarded the cook as having a substantially limiting impairment. EEOC rules specified that the "regarded as" standard may be met when a person has "a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation."

The nursing home didn't dispute that her hepatitis was a physical impairment that didn't substantially limit her major life activities. Thus, the question was whether the home nonetheless treated her hepatitis as "substantially limiting" one or more of her "major life activities."

To prevail on its "regarded as" claim, the EEOC had to prove that the home treated her disease as significantly restricting her ability to perform both:

  1. The job for which she was disqualified, and
  1. Either:

a. "jobs using similar training, knowledge, skills or abilities" within her geographical area, or

b. a broad range of "jobs not using similar training, knowledge, skills or abilities" within the geographical area.

Because the administrator had decided to fire the cook, the relevant inquiry centered on his beliefs regarding her hepatitis. The jury rejected the home's argument that it had fired her for falsifying her employment application by not disclosing her hepatitis. The jury found that the home had discriminated against the cook because of perceived disability.

The Tenth Circuit weighs in

The Tenth Circuit found that a reasonable jury could view the administrator's comments to the cook and the EEOC as evidence that he thought allowing her to cook for the facility would be unsafe or unsanitary, and thus he had treated her as limited in her "ability to perform" her job. Similarly, his concern about a "mass exodus" showed that he thought she couldn't properly perform her job because of how others might react to her perceived disability.

Also, the Tenth Circuit found sufficient evidence for the jury to conclude that the administrator had treated the cook as significantly restricted in her ability to perform other jobs within the same class of jobs. Specifically, a jury could have concluded that the administrator believed she was restricted in her ability to do any kitchen job or any job where she might bleed and thereby transmit hepatitis.

Fired because of disability

To prove that the home had violated the ADA, the EEOC had to prove that the facility fired the cook because of her disability. The Tenth Circuit reasoned that a jury could have reasonably interpreted the administrator's statement to mean she was fired because she had hepatitis and was therefore (in his mind) unable to perform her job or other jobs in the same class. Similarly, his expression of concern of a "mass exodus" if clients discovered the cook had hepatitis supported a finding that she was fired because she had that disease and was thus restricted in her ability to perform her job and other jobs in the same class.

Even assuming both that the cook had lied on her application and that this would have provided a valid legitimate reason for firing her, the court concluded that a reasonable jury could have nonetheless found that she was actually fired because of her disability. So the Tenth Circuit upheld the jury's verdict because a legally sufficient basis existed for concluding that she had a disability and that she was fired because of it.

Never assume

This case provides another example of an employer basing an employment decision on its assumptions about an employee's medical condition rather than on performance or medical evidence. To sustain firing a worker based on a medical condition, an employer must be able to prove that an employee was unable to perform the position's essential functions or that the medical condition presented a danger to those in the workplace.