Showing sympathy doesn’t create ADA liability

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in Discrimination and Harassment,Office Communication,Performance Reviews

Supervisors know they shouldn’t consider someone disabled just because they have a medical problem. They understand that the best policy is to assume an employee can continue to do his job unless he asks for accommodations or leave.

The reason: Employees who turn out not to meet the definition of “disabled” can still sue for disability discrimination based on their employer’s perception that they are disabled.

That doesn’t mean, however, that supervisors can’t express concern and sympathy when an employee reveals a problem. Nor does it mean they can’t offer accommodations at that point or explain what types of leave are available.

Recent case: Dennis Breen worked for Infiltrator Systems as an accountant and was promoted into man­agement. Then he received a poor review based on interpersonal skills.

A few months later, Breen told his boss he had hepatitis C. The super­visor, noticing for the first time that Breen was thinner and had sores on his arms, asked Breen if he needed time off from work. Breen declined the offer.

Then co-workers allegedly heard Breen utter a racial epithet. Shortly, Breen went out on medical leave. When he tried to return, he learned he had been terminated for poor performance and conduct.

He sued, alleging he had ­really been terminated because his super­visors regarded him as disabled and unfit to work. He based his case almost entirely on the super­­­­­­­­­­visor’s expression of sympathy and offer of time off.

The court said that wasn’t enough to show Infiltrator Sys­tems regarded him as disabled. Breen offered no evidence that the com­­­pany hadn’t terminated him because of poor performance, especially since documents showed performance concerns predated his revelation he was ill. (Breen v. Infiltrator Systems, No. 10-5013, 6th Cir., 2011)

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