October 29, 2019

Predicting Future Disability Not Unlawful Under ADA

This case is similar to that described in FiveL’s September 12th news story. On October 29, 2019 the 7th U.S. Circuit Court of Appeals decided that an employer’s perception that an employee may develop a disability in the future is not covered under the Americans with Disabilities Act (ADA). That’s good news for the employer, right?  Yes, but at what cost to this employer in terms of time and money spent in litigation to win the case.  Here’s the scoop.

The employer refused to hire a candidate solely because it believed his obesity presented an unacceptably high risk that he would develop certain medical conditions that would suddenly incapacitate him on the job. The candidate sued and the district court found in his favor. The employer appealed. The 7th Circuit overruled and found in the employer’s favor. Why?

The court launches into a brief review of Grammar 101 (maybe even 201). The ADA prohibits discrimination on the basis of “being regarded as having such an impairment.” The court then analyzes whether “having” is a gerund or present participle. In the end, it concludes that the ADA’s protection against discrimination based on a perceived disability includes only the perception of a present disability, not one in the future.

Lessons Learned. Forewarned is forearmed. Train your managers about all the protections under the ADA: present, past, perceived disabilities as well as protections for associating with a person with a disability.  Give them bells and whistles to help them recognize when to call HR for guidance.

A chuckle. The court notes that the “being regarding as having” clause is “written in the passive voice, resulting in some of the attendant clumsiness that English teachers warn of.” Speaking of clumsy, I recall my English teachers also taught me about ending a sentence with a preposition!