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Avoid the ‘D’ word: Never mark ‘disabled’ on personnel files

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

A key part of the ADA is the so-called “regarded as” rule. Essentially, it says that if your organization treats an employee as if he or she is disabled, then the employee earns the job protections provided under the ADA—even if he or she isn’t truly disabled.

What does it take to “regard” someone as disabled? As a new court ruling shows, it can be as simple as jotting “disabled” on an application or employee paperwork.

That’s why you should warn supervisors and managers to leave disability determinations to 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: A Bank of America customer-service rep told his supervisor that he had been diagnosed with post-traumatic stress disorder stemming from his military service in Vietnam. Years later, he was fired for an alleged rule violation.

The employee sued, claiming he was protected by the ADA and due a reasonable accommodation for his disorder. His evidence? He learned that a supervisor had marked his personnel file “Disabled Vietnam Veteran.” He also argued that his boss had treated him poorly shortly after he revealed his condition.

While a lower court said that wasn’t enough proof to show he’d been regarded as disabled, the 3rd Circuit Court of Appeals disagreed. It sent the case to trial. (Walsh v. Bank of America, No. 08-2230, 3rd Cir., 2009)

Final note: There was no reason to mark his 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.

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