Remind managers and supervisors: No snide comments on disability allowed — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Remind managers and supervisors: No snide comments on disability allowed

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It takes just one unkind comment about an employee’s alleged disability to send an ADA case to trial. What’s more, even if the employee couldn’t otherwise prove she’s disabled, a malicious comment may be enough to convince the court that the employer regarded the employee as disabled.

That’s an ADA violation all by itself. Under the ADA’s regarded-as-disabled clause, employers that mistakenly treat employees as if they are disabled and subject them to a hostile environment are just as guilty as they would be if they had discriminated against an employee with a verified disability. The result is that the employee has an instant ADA case even if she’s not disabled.

Recent case: Cathleen McNa worked as an emergency dispatcher until she was fired for allegedly misusing her agency’s instant-messaging system. While she worked for the agency, she complained to supervisors that co-workers had made derogatory age-related comments about her. Some co-workers allegedly questioned her mental health.

McNa, who takes medications for anxiety and depression, complained to the EEOC and the Florida Commission on Human Relations that she was being targeted for her age and disability.

She said that the operations manager told her she was “mentally ill” and should “leave this job and go work at Wal-Mart with the rest of the retards.”

A court ruled McNa didn’t need to prove she was actually disabled. The operations manager’s comments were evidence that he thought she was disabled enough to be limited in the ability to work. The case now goes to trial. (McNa v. Communications Inter-Local Agency, et al., No. 6:07-CV-1906, MD FL, 2008) 

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