March 09, 2026
When What You See is What You Get: ADA & Perception Discrimination
An employee tells you she had a seizure last month after not having one for years. With genuine concern, you tell the employee she should take time off to “focus more on your health.” You then put those words into action and fire the employee nine days later. Oops.
Not surprisingly, the employee sues you under the Americans with Disabilities Act (ADA) for disparate treatment based on her (1) actual disability, (2) record of a disability; and (3) perceived disability. A trifecta!
That’s what happened in this case (I assumed the employer’s positive intent) when the U.S. EEOC filed suit and requested a jury trial; back pay with interest; front pay; compensation for past and future pecuniary losses, including medical and job search expenses; compensation for emotional pain and suffering, inconvenience, loss of enjoyment of life, and humiliation; punitive damages for its malicious and reckless conduct; and more. Ouch!
Lessons learned? Good intentions gone awry. I have heard this from HR professionals, managers, and small business owners. They have a genuine concern for an employee’s well being. They then instruct the employee to take a leave of absence to “take care of” themself. This is the potential result. Most of us are not doctors. Let’s not play one on TV or in the workplace. Don’t assume what an employee does or does not need. If you have a genuine concern for an employee’s health, you might remind the employee about services you offer such as an employee assistance program, or health care benefits. It is fine to ask, “How can we help?” But unilaterally taking an adverse action may land you in hot water.
Resources? The U.S. EEOC mentions the Job Accommodation Network (JAN) throughout its website. JAN is a service funded by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP). I find JAN to be a useful resource for general “situations and solutions“, toolkits with FREE templates, sample notices, webcasts, and more. Of course, talk to your company’s employment counsel for guidance on specific situations.
