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Feb 23, 2018

Back in May 2017, I wrote about an Americans with Disabilities Act lawsuit that the U.S. Equal Employment Opportunity Commission filed against an employer. In its complaint, the EEOC alleged that the employer violated the ADA when it feared an employee’s travel would lead to a potentially catastrophic outbreak of Ebola in the United States and fired her when she refused to cancel her trip.

“Regarded as” having a disability

The EEOC’s theory was that the employer regarded or perceived the employee as disabled, and violated the ADA when it fired her because of her disability.

Allow me to elaborate by citing the statute:

The ADA prohibits discrimination against a “qualified individual on the basis of disability in regard to . . . discharge of employees.” “Disability” under the ADA is defined as (1) having “a physical or mental impairment that substantially limits one or more major life activities of such individual,” (2) having “a record of such an impairment,” or (3) “being regarded as having such an impairment.” (my emphasis)

So, for example, if you have a nasty scar on your face — purely cosmetic — but I force you to work in the stockroom out of concern that you may scare the customers, that’s pretty good fodder for a “regarded as” ADA claim.

The definition of disability is broad. But, there are limits.

Except here, the analysis is different. The defendant argued that a “regarded as” claim does not include an employer’s concern that an otherwise healthy employee may eventually become disabled.

And, you know what? The court agreed (opinion here):

[I]n the ADA Amendments Act of 2008 (“ADAAA”), Congress “broadened the application of the ‘regarded as’ prong of the definition of disability” to include persons who were not actually impaired or whose impairments did not constitute a disability, but were perceived to be impaired nonetheless. However, in the ADA Interpretive Guidance, it is clarified that impairment “does not include characteristic predisposition to illness or disease.”

The Court declines to expand the regarded as disabled definition in the ADA to cover cases, such as this one, in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.

Employer wins, with one caveat. If the employer knew that the employee had previously associated with persons in Ghana who were suffering from Ebola, then there may be an associational-discrimination claim. But, that wasn’t the case here.

Employer takeaways

While, hopefully, your business has managed to avoid the Ebola Monster, take some time to remind your managers about succumbing to workplace stereotypes. This is especially true under the ADA, where regarding someone as disabled can create an ADA claim.

Here’s another example of a situation in which stereotyping employees who have disabilities can land the employer in hot water. These unfair stereotypes can undermine what should otherwise be a good-faith, interactive dialogue between employer and employee to discern what reasonable accommodation(s), if any, will allow the employee to perform the essential functions of the job.

This article first appeared on The Employer Handbook.