Employer Fails To See ADA Implications Of Its Actions

Most employers know that discriminating against an employee based on a disability is wrong. Time and again, however, employers fail to consider the “perceived as disabled” prong of the Americans with Disabilities Act (ADA).

One management services organization that supports eye care providers learned this costly lesson when it settled a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the anti-discrimination laws, by a consent decree requiring it to pay $67,590 to an optometrist employee.

In a 2020 suit filed in the U.S. District Court in the Western District of Michigan, the EEOC charged Blue Sky Vision, LLC with violating the ADA because the organization (i) told the employee that his medical condition made him a liability and he should resign; (ii) subjected the employee to an unlawful medical inquiry; and (iii) then fired him, all because management “perceived” this employee to be disabled.

Bad Optics Here.

Let’s see what happened. The employer, Blue Sky Vision, hired the employee in June 2018. Just a few months later, the employee mentioned to a coworker that he had a medical condition. When management learned of the employee’s condition and asked the doc (and he was a doc) to resign.

Yep, just like that. What a short-sighted move on the employer’s part.

You see, the employer did not ask whether the employee’s condition would affect his ability to perform his job and did not engage in the ADA’s interactive process at all.

When asked to resign, the employee protested, and, apparently backtracking, the company placed him on a leave of absence and subjected him to an overly broad and extensive medical inquiry into health conditions unrelated to his ability to perform his job.

When the employee refused to engage in the medical inquiry, Blue Sky blindly fired him.

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The “Perceived As” Prong Of the ADA

The ADA protects employees from discrimination in the workplace on the basis of a physical or mental disability. A “disability” within the meaning of the ADA is a physical or mental health impairment that limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

In fact, the ADA protects employees from improper medical inquiries and discrimination based on actual or per­ceived disabil­ities.

What the employer should have done is engage in the interactive process to determine what, if any, reasonable accommodations existed that it could provide to the employee…but it did not.

Critical to compliance with the ADA, employers must talk to the employee to determine what kind of reasonable accommodations it can provide, if any—the famed “interactive process.” 

A reasonable accommodation is a change in the way duties are performed to help a disabled employee perform that person’s job duties or enjoy the benefits and privileges of employment. If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business. 

So…No Interactive Process Here?

Nope. In this case, the employer just made a blanket decision, and now, two years later, it is paying the price.

The ADA Constrains Medical Inquiries Too

This employer erred again here. The ADA requires any medical inquiries into an employee’s health condition to be job-related and consistent with business necessity. According to the EEOC, this means that an employer must have a reasonable belief, based on objective evidence, that:

  • an employee will be unable to perform the essential functions his or her job because of a medical condition; or,
  • the employee will pose a direct threat because of a medical condition.

Could Blue Sky Vision have discovered this information by engaging in an interactive process with the employee? Probably. But it didn’t, so…moot point.

Along with the monetary award, now, Blue Sky must prepare a written policy that prohibits discrimination against employees with disabilities, which references the ADA’s prohibitions against discrimination based on disability, details a procedure for making and processing requests for reasonable accommodations for qualified individuals with disabilities, and includes a procedure for requesting medical examinations and making medical inquiries of current employees. This procedure require Blue Sky Vision to determine whether the examination or inquiry is job-related and consistent with business necessity. 

A Word of Warning for Employers

EEOC Regional Attorney Kenneth Bird warns employers:

An employer cannot fire someone based on an unfounded belief that the individual’s medical condition renders him unable to perform his job…Nor should an employer commence a medical inquiry that is broader than necessary to determine whether a medical condition impacts an employee’s ability to safely perform his job.

Slow down, and consult with HR and outside employment counsel.

Avoid snap decisions, and remember, the ADA requires that employers engage in the interactive process rather than making myopic assumptions and decisions.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.