A lawsuit filed by the federal government alleging that the ability to contract Ebola is a disability is “nonsensical,” according to the Massage Envy franchisee defending the case.
The U.S. Equal Employment Opportunity Commission (EEOC) sued the company in April, alleging that it violated the Americans with Disabilities Act (ADA) when it fired a massage therapist for traveling to Ghana, fearing she would contract Ebola.
The commission said the action violated the ADA’s “regarded as” disabled coverage prong. “Making employment decisions based on perceptions of disability clearly violates federal civil rights law,” said Evangeline Hawthorne, an EEOC field director, in a press release announcing the lawsuit. (For the full story, see Is the Potential to Contract Ebola a Disability? EEOC Thinks So.)
Employer Fires Back
Asking the U.S. District Court for the Middle District of Florida to dismiss the claims, the franchisee characterized the EEOC’s arguments as “nonsensical,” “unreasonable,” and “frivolous.”
“Making a choice to travel is not an impairment under the ADA, whether actual or perceived,” the business told the court. Nondiscrimination protection for an upcoming trip that may expose an individual to a disease is “non-existent” and wholly unauthorized by the ADA, it continued.
The “regarded as” disabled prong of the definition of disability is, by design, easy to meet. It requires only that an employee show that he or she was subjected to an adverse action because of an actual or perceived physical or mental impairment.
And an “impairment,” according to the appendix of the EEOC’s own regulations, “does not include characteristic predisposition to illness or disease,” the employer argued (EEOC v. STME LLC dba Massage Envy South Tampa, No. 8:17-CV-977 (June 5, 2017, M.D. Fla.)).
The company also cited case law to support its argument, including Morriss III v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016), cert. denied, 137 S. Ct. 256 (2016). In that case, a job applicant alleged that an employer violated the ADA when it failed to hire him because it believed his obesity would lead to future impairments. A district court dismissed his claim, finding that the ADA doesn’t cover potential impairments, and the 8th Circuit later agreed.
Although the Morriss court was addressing a physical characteristic rather than the risk of disease, it made clear that the ADA does not prohibit an employer from deciding that, although no impairment currently exists, there is an unacceptable risk of a future physical impairment.
Employer Takeaway
Despite drastic expansions to the ADA in recent years—including those made to the “regarded as” prong—it still does not appear to encompass the mere potential to become disabled in the future, an employment law attorney told BLR® when the EEOC filed its suit. “From a practical standpoint we could all become ill at any point in time, or get injured in some way that would be disabling,” said Jo Ellen Whitney, a senior shareholder at Davis Brown and an editor of the Iowa Employment Law Letter.
Employers should remember, however, that the Genetic Information Nondiscrimination Act protects employees from discrimination based on a genetic predisposition (or perceived predisposition) that renders an illness more likely.
That doesn’t appear to be relevant in the Massage Envy case, however, Whitney said, as the EEOC based its claim on a decision to travel, and “risk of contracting a viral illness isn’t the same thing as a genetic predisposition.”
 Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies. |