May 29, 2020

What You See May Be What You Get

This case reminds me of School House Rock’s Conjunction Junction! An employee is fired after missing 9 1/2 out of 15 work weeks. All but two of those days were for removal of a node from the employee’s lung and subsequent recovery. Then six weeks later, the employee used two days of vacation for a respiratory infection. On the employee’s second day back, he was fired.

The employee sued, alleging he was fired because he was perceived by his employer as having a disability under the Americans with Disabilities Act (ADA). You probably know the ADA prohibits discrimination based on an individual’s disability that substantially limits one or more major life activities. The ADA also prohibits discrimination based on a perceived physical or mental impairment, regardless of whether it is perceived to limit a major life activity.  On the flip side, the ADA does not include in perception claims impairments that are “transitory and minor.” Transitory is defined as “an impairment with an actual or expected duration of 6 months or less.” “Minor” is not defined.

The appellate court found the lower court erred when it ruled in favor of the employer. The lower court found the employee’s absence of less than six months was transitory and not covered under the ADA. But, the lower court did not determine whether the employee’s condition was also minor! Notice the word joining “transitory” and “minor” is “and” not “or.” It has to be both.

Lessons Learned: #1 – Get your story straight and be honest about it. The employer gave three different reasons for the discharge. First, it told the employee he was fired for performance issues. When he pointed out he had an “excellent” performance appraisal the preceding month (better than 4.5 on  5.0 scale), the employer said it was because he did not call out sick during his second absence. Subsequently, the employer changed its story again, citing behavior issues.

#2 – The court reminds us that the burden of proof is on the employer, not the employee. “[T]he ADA regulations clearly state that an employer must establish that the perceived impairment is objectively both transitory and minor.”

#3 – How is an employer supposed to determine if an impairment is minor when neither the law nor ADA regulations do so?! This court suggests an employer consider the following:

  • the symptoms and severity of the impairment;
    the type of treatment required;
  • the risk involved; and
  • whether any kind of surgical intervention is anticipated or necessary;
  • as well as the nature and scope of any post-operative care.