You’re Fired If You Go To Ghana! You Could Catch Ebola!
This post is about Ebola – remember the fear? the panic??
Last year the EEOC sued a Tampa company under the Americans With Disabilities Act (“ADA”) for, as one EEOC official said, “Making employment decisions based on perceptions of disability [which] clearly violates federal civil rights law.”
What was this case about?
“Regarded As” Disability
Firing an employee if you perceive that he/she is disabled is just as violative of the Americans With Disabilities Act (“ADA”) as if he/she actually in fact had a disability.
So why was this Tampa employee fired?
The EEOC contended that the company “regarded her as disabled based on its unfounded fears and beliefs about Ebola in Ghana and the risk that she would contract Ebola on her trip.”
Sounds plausible, right?
The employee was a massage therapist who had no disability at any time relevant to this matter. In 2014 she requested time off to visit her sister in Ghana, and her manager approved her request. However, three days before her trip she was fired, as the Court stated: “out of concern that ‘she would be infected with Ebola if she traveled to Ghana’ and that she would bring it home and infect [the company’s] employees and clients upon her return. [She] subsequently traveled to Ghana.”
Now do you recall the panic over Ebola??
Is this a case of an employee perceived to be disabled, and therefore fired in violation of the ADA?
While acknowledging that the ADA, with its amendments, includes “persons who were not actually impaired or whose impairments did not constitute a disability, but were perceived to be impaired,” nonetheless the Court noted that the ADA Interpretive Guidance, Appendix to 29 C.F.R. Part 1630, clarified that impairment “does not include characteristic predisposition to illness or disease.”
So, was this a “predisposition to illness or disease?”
The EEOC contended “that employers can violate the ADA even when they discriminate against an ‘otherwise healthy individual based upon misconceptions about that person’s potential to become disabled in the future.’” So, she was not “predisposed to Ebola,” but had the “potential to become disabled [with Ebola] in the future.”
The Court did not buy this argument. It held that it “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 (emphasis added).”
The ADA prohibits employment discrimination based on myths and stereotypes about people with disabilities or perceived to have disabilities. But simply having the potential to become disabled in the future does not implicate the “perceived to be disabled” part of the ADA.
At least according to this Court.