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Remind supervisors: Don’t assume disability

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

An employer that assumes an employee is disabled and then fires him or even just treats him differently than other employees may end up with an ADA lawsuit.

That’s because the employee may not actually be disabled—but can still sue for disability discrimination based on the employer’s presumption that he is. In other words, if the employer regards the employee as disabled, the ADA applies.

Recent case: Frank Brunker worked for Schwan’s Home Service, a company that employs route drivers to sell frozen food door-to-door. When Brunker developed dizziness, tremors in his hands and slurred speech, his doctors requested that he be excused from driving until his condition could be evaluated and treated. The company placed Brunker on disability leave.

Brunker returned to work, with no restrictions, but asked for time off so he could visit the Mayo Clinic for more medical testing. His supervisor agreed—but then wrote up Brunker for dressing sloppily and bad record-keeping. Brunker returned from the Mayo Clinic and announced he had multiple sclerosis.

At that point, the supervisor fired Brunker for poor performance, but backdated the notice to before the diagnosis. Brunker sued for disability discrimination.

The court said Brunker wasn’t disabled, since he could work without restrictions. However, because his supervisor treated him as though he were unable to care for himself (sloppy dressing) and backdated the termination, the court ruled Schwan’s had regarded him as disabled and fired him because of that presumption. (Brunker v. Schwan’s Home Service, No. 07-3138, 7th Cir., 2009)

Final note: The “regarded as disabled” concept is based on the idea that disabled Americans are hurt by prejudice about what a disabled individual can do. Congress included it in the ADA because someone who is assumed to be disabled can experience just as much discrimination as a genuinely disabled person.

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