If your organization regards an employee as having a "disability", even if his or her condition doesn't rise to the Americans with Disabilities Act (ADA)'s definition, your actions could cause the worker to be protection under the law.
But what if you offer accommodations regardless of whether the person's ailment is truly a disability? Your efforts are simply a nice gesture. Would those efforts automatically mean that you regard the employee to be disabled and, therefore, bind you to the ADA?
No. As the following case shows, not every attempt to assist employees with their medical impairments will be viewed as evidence that you "regarded" the employee as disabled.
To show that you don't view an employee's condition as a "disability," document the limited ways in which an employee is impaired. That creates evidence that the employee isn't "substantially limited in a major life activity" (the ADA's definition for disability), but is simply limited in one aspect of job performance. Also, avoid using the word "disability" in your documentation. Instead, use "medical impairment."
Recent case: After 30 years as a P.E. teacher, Connie Cigan claimed she was forced to retire when her school district failed to accommodate her arthritis and bursitis. Before her retirement, the school district provided several accommodations, including breaks, chairs and other assistance. But it later concluded that Cigan wasn't up to the job and recommended that her contract not be renewed.
Cigan sued, alleging constructive discharge in violation of the ADA. She said the school previously made efforts to accommodate her problems, and thus considered her to be disabled.
A federal appeals court sided with the school district, saying that simply because it offered an accommodation doesn't establish that it believes the employee was disabled within the ADA's legal meaning.
"Decent managers," the court said, "try to help employees cope with declining health without knowing or caring whether an employee fits the description in the federal statute." (Cigan v. Chippewa Falls School District, No. 03-4034, 7th Cir., 2004)
- Document any slippage in employee performance to insulate against later discrimination claims
- Consider job restructuring as disability accommodation
- Asking applicants about age: When is it legal?
- Retaliation can stick even if underlying complaint doesn't
- Counter bias claims: Show how your rational promotion process selects best candidates