With eye toward defending disability lawsuit, track medical condition before termination

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in Employment Law,Human Resources

The 9th Circuit Court of Appeals has concluded that a former employee can’t use his physical condition at the time of trial to prove he is disabled. Instead, he must show that, at the time he was employed, he had a condition that substantially limited a major life function.

The ruling is good news for employers. It makes it less likely that a former employee might successfully exaggerate his condition following termination—and after finding out just how “limiting” his condition could have been. If he was able to perform his job functions while employed, chances are he won’t be able to show he was disabled at the time.

Recent case: Former Rick’s Floor Covering employee Thomas Higley sued, claiming the company discriminated against him because of an alleged disability.

He had a herniated disk that he claimed sometimes hurt so much he had trouble sitting or standing. However, he also testified that, at the time, he could work by wearing a back brace and taking pain medications.

Higley told the court that a year after he was no longer working at Rick’s, his condition got much worse.

But the court said what mattered was whether Higley was disabled at the time he claimed the discrimination took place, not at the time of trial. It dismissed his case. (Higley v. Rick’s Floor Covering, No. 08-17205, 9th Cir., 2010)

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