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Avoid ADA ‘regarded-as’ problems: Don’t mark ‘disabled’ on files

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in Firing,HR Management,Human Resources,Office Management,Records Retention

Employers that “regard” people as disabled and then discriminate by firing them or refusing to hire them in the first place will face lawsuits—even if it turns out those applicants and employees aren’t actually disabled. That’s a key part of the ADA.

Regarding someone as disabled can be as simple as jotting “disabled” on an application or personnel file.

That’s why you should warn supervisors and managers to leave disability determinations for the HR office. Then designate someone in HR to consider all requests for accommodations and handle the disability assessment. No one in the organization should ever tag someone as disabled without a request for accommodations, backed up by solid medical documentation.

Recent case:
Michael Walsh worked as a customer service representative at a Bank of America call center. Several years after being hired in 1999, Walsh was diagnosed with post-traumatic stress disorder stemming from his military service in Vietnam.

Walsh told his supervisors about his condition shortly after the Sept. 11, 2001, terror attacks and said he might need to take two weeks off to deal with the stress he was feeling. He was fired several years later for alleged rule violations. That’s when he sued, claiming that he was protected by the ADA.

He discovered that Bank of America had marked his personnel file “Disabled Vietnam Veteran” and testified that his supervisor had begun treating him poorly shortly after he told her about his condition.

The trial court said he had no proof that he had been regarded as disabled and dismissed the case, but the 3rd Circuit Court of Appeals disagreed and sent the case back to the trial court. (Walsh v. Bank of America, No. 08-2230, 3rd Cir., 2009)

Final note: There was no reason to mark Walsh’s file with “Disabled Vietnam Veteran” unless the bank had concluded he was, in fact, disabled. If that were the case, it should have worked on making an accommodation. If it did not believe he was disabled, it should have simply noted his request and documented how it went about deciding he was not disabled, and therefore not entitled to the requested accommodation.

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