The Peril of Regard

The Americans with Disabilities Act (ADA) has a three prong test for disability:

- Individuals with a physical or mental impairment which substantially limits one or more major life activities,

- Individuals who have a record of such an impairment, or

- Individuals who are regarded as having such an impairment.

It is the last prong that prompts this post.

Even if there is NO Disability:

The EEOC states "The inclusion of persons regarded as having a substantially limiting impairment reflects Congressional intent to protect all persons who are subjected to discrimination based on disability, even if they do not in fact have a disability. It also reflects a recognition by Congress that the reactions of others to an impairment or a perceived impairment can be just as disabling as the limitations caused by an actual impairment."

(http://www.eeoc.gov/policy/docs/902cm.html#902.8, Italics added for emphasis).

In other words, if the employer takes action based upon a perception that the individual is disabled, the employer has ensured the individual is covered under the ADA, and thus created liability for the company, even when it is determined that the employee is not disabled.

Regarding Regard:

The rule focuses on negative reactions, prejudiced attitudes, ignorance, and fears that cause an employer to take action against an individual as opposed to sound business based reasoning.

The EEOC provides the example that a person with severe burns or with cosmetic disfigurement may be regarded as having a disability based upon employer fears about negative reactions of customers or co-workers.

(http://www.eeoc.gov/policy/docs/902cm.html#902.8)

Another example may be not hiring an individual because of a perception that his or her weight would prohibit them from completing the job properly or that it may result in the employee taking too much time off.

Real Life Example:

In 2005, Joan Eshelman won a case against her former employer Agere Systems, Inc. because they regarded her as having a disability. In short, Ms. Eshelman was having trouble with her memory following treatment for cancer. She had found various ways to work around this problem and her performance was not impacted.

Agere was forced to layoff 18,000 employees and utilized a ranking system to make the determination of who was to be laid off. Initially Ms. Eshelman was ranked highly by her supervisors. Once the supervisors learned that her new position with the company would require her to engage in certain activities they believed would be hard for her, they altered her scores so that she ranked very low on the scale.

Despite the fact that Ms. Eshelman proved fully capable of performing her job and despite the fact that there were several options available to help accommodate her, the company made a decision based upon its perception that she would be incapable. It regarded her as being disabled and took action based upon that disability.

(http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf)

The Take-Away:

The best way to avoid discrimination is to make sound business decisions based upon all the information available.

The ADA does not require employers to employ disabled individuals. It does not prohibit employers from hiring the most qualified individuals. It does prohibit employers from making employment decisions solely on the basis of a disability.

As the focus of this blog is on the "Regarded As" prong of the definition of disability, the most important take away is that the employer should not presume the applicant/employee will be incapable of meeting the requirements of the position.

If you are concerned about the applicant/employee's ability to fulfill the duties of the position, you can ask if he or she can perform the functions of the job.


Works Cited:

http://www.eeoc.gov/policy/docs/902cm.html#902.8

http://www.paed.uscourts.gov/documents/opinions/05D1278P.pdf