When the Americans with Disabilities Act was passed in 1992, the initial questions focused on how to reasonably accommodate disabled workers. But there is another sticky problem that has been surfacing more recently: just who is entitled to ADA protection? You might be surprised to discover that the answer is broader than you think. Even workers who aren’t disabled have successfully filed lawsuits seeking damages under the law. Here’s a look at what the latest rulings say about some little-known ADA risks.
Fat “Jokes” Cause Legal Problems
Obesity is rarely considered a disability under the ADA unless it is caused by a physiological disorder that substantially limits the person’s ability to perform major life activities. But overweight workers continue to successfully sue employers for disability discrimination. That’s because the ADA protects not only disabled employees but individuals whom employers incorrectly “perceive” to be disabled. As several recent cases show, commenting about someone’s weight can have serious-and expensive-consequences.
One case involved 350-pound auto-parts worker Richard Bryant, who was employed by Troy Auto Parts Warehouse. Bryant claimed the store manager and co-workers teased him about his weight throughout his employment and called him “Buddha.” He said that when he complained to the manager, he was told to get used to it. Bryant also alleged he was forbidden from driving company vehicles to make deliveries because of his size.
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Bryant sued, claiming he was being subjected to a hostile work environment and his employer was unnecessarily restricting his job duties because of his weight. The company attempted to have the case thrown out before trial, contending Bryant wasn’t actually disabled under the ADA. But the court ruled that the way Bryant was treated indicated that his employer “perceived” him to be disabled. There- fore, the court said, he was entitled to have his claims decided by a jury.
In a similar case, a sales manager for Coca-Cola Enterprises in Union City filed a lawsuit against the soft drink bottler claiming he was humiliated at work after gaining 90 pounds following his son’s death in an accident. The employee alleged his boss repeatedly commented on his weight in front of co-workers and issued a memo advising against hiring “fat and slow” people. The court has not yet ruled in the case.
Stop “Kidding”
Regardless of how these disputes are ultimately resolved, the lawsuits make clear that insensitive comments about a person’s weight or physical condition can be all that is needed to spur a worker who otherwise wouldn’t have a claim-or who isn’t even disabled-to sue you for damages under the ADA. If you become aware of inappropriate shop talk, office gossip or “kidding,” your best defense is to act swiftly to put an end to it.
Nearsighted Applicant Claims ADA Protection
Both courts and employers continue to struggle with the thorny issue of whether the ADA protects workers whose disabilities don’t necessarily affect them at work because they take medication or use corrective devices. In one recent Pennsylvania case interpreting the ADA, an applicant for a police job filed a class-action lawsuit after being rejected because he is nearsighted. The employer argued that the applicant was unqualified because police officers must have good vision in case their glasses are knocked off in the line of duty. In addition, the department said the case should be thrown out because the applicant was not disabled under the ADA since he could see normally when wearing eyeglasses.
The judge, however, permitted the case to proceed, holding that whether a person is disabled should be determined without considering corrective measures such as taking medication or wearing eyeglasses.
Courts Divided On Correct Approach
It’s not clear whether California courts would agree that nearsightedness is a disability under the ADA. But the issue of how and when individuals with correctable conditions are entitled to protection under the ADA remains a hot topic nationwide. For example, in another recent case, a court agreed with the employer that a worker who took medication to control hypertension was not disabled under the ADA.
But the Equal Employment Opportunity Commission (EEOC) has taken the position that corrective measures should never be taken into account. For example, a diabetic whose condition is successfully treated with insulin should still be considered disabled, according to the EEOC, because the person cannot perform major life activities without the medication.
What To Do Now
These mixed messages create confusion about where to draw the line. But it’s clear that relying on preconceived notions of what constitutes a disability can get you in trouble. The safest approach is to assume that if someone’s condition could be considered a disability without corrective measures, the person would be covered by the ADA.