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Avoid the Disability Discrimination "Regarded As" Pitfall

August 2012

By: James B. Sherman, Esq.

An Eighth Circuit Court of Appeals decision illustrates a potential pitfall of the "regarded as" label when defending against disability discrimination. See Martin v. City of Saint Paul, No. 11-1716 (8th Cir., June 5, 2012).

In 2006 the firefighter employee injured his right knee and underwent reconstructive surgery. Thereafter he applied for fire district chief three times and each time the Fire Department Chief chose not to promote him. Thereafter, the firefighter employee sued, alleging he was denied a promotion to fire district chief because of his disability in violation of the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA).

When the court found that the firefighter employee was not actually disabled, he turned to the theory that the City of Saint Paul "regarded him as disabled." To support his claim, the employee pointed to evidence that in at least two interviews the Fire Department Chief asked about the employee's knee injury and whether the injury would require any accommodation. Further evidence shows that the Fire Department Chief also made statements to union representatives, human resources personnel and other firefighters about the employee's knee injury. For example, in a letter to the City's human resources contact, he stated that the firefighter employee "cannot do the job" and that he "would prefer [that the employee] take his disability, and open up further options on the district chief list." The Fire Department Chief also told the employee directly that it would be difficult for the employee to invest in his professional development "given [his] medical status."

Although the employee's "regarded as claim" ultimately failed because the court found the Fire Department Chief's statements to be isolated, the case illustrates the type of evidence a court will examine and probe to determine whether someone might be regarded as disabled. This evidence includes, among other things, statements made directly to an employee about a medical condition or asking if they need a reasonable accommodation; statements made to others within the company, such as stating they think someone cannot perform the job because of a condition; and statements to third parties. This type of information is not only very relevant, it will be highly scrutinized to determine if an employee's claim remains viable. Accordingly, it is important not to assume that an employee has a condition that will prevent him/her from performing certain functions. Although in some instances an employer may be attempting to help an employee perform better, a court might interpret that generosity in a way that shows the employer perceived the employee as disabled.

If you have any questions about the important subtleties surrounding disability discrimination issues under the ADA and/or the MHRA it is advisable to consult with the experienced legal counsel at Wessels Sherman who are well versed in navigating these subtleties.