Expressing concern about employee’s condition isn’t enough to show disability discrimination

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in Discrimination and Harassment,Human Resources

When a disabled employee reports a relapse or worsening condition, it’s natural to express sympathy. As long as that expression doesn’t show prejudice or stereotypical views about the condition or disabled individuals in general, that won’t put you on the losing end of an ADA lawsuit.

Recent case: Deborah Perry worked for an agency that provides assistance to developmentally disabled individuals and their families. Perry has epilepsy, something she disclosed when she was hired. She had no problems with her condition for at least nine years.

Then she had a seizure and asked permission for a day off to see her doctor.

When she returned, an HR representative explained that she needed to get a fitness-for-duty certificate from her doctor before she could drive on company business. The HR rep said she was concerned whether it was “safe” for Perry to be “left alone with customers” and remarked that she herself would “be upset if she had [epilepsy].”

Perry took FMLA leave because, as she said, her epilepsy “made her unable to perform the essential functions of her job.”

Then she filed a disability discrimination suit.

The court said the employer did nothing wrong. It accommodated her with FMLA leave. And the HR representative’s comments, though perhaps insensitive, were not direct evidence of discrimination. The comments were merely expression of concern. That’s not enough to merit a full-fledged disability discrimination lawsuit. (Perry v. NYSARC, No. 10-5177, 2nd Cir., 2011)

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