When There is No Actual Disability: Reasonable Accommodation Splits Circuits
by William D. Deveney
The federal courts are increasingly split on the issue of whether the Americans With Disabilities Act (ADA) requires an employer to reasonably accommodate a perceived disability, even if there is no actual disability. The Eighth and Ninth Circuits have held that an employee who is merely "regarded as" disabled by an employer is not entitled to such an accommodation under the ADA, and the Fifth and Sixth Circuits appear to have reached similar conclusions. The Tenth and Eleventh Circuits, however, recently joined the First and Third Circuits in holding that employers must reasonably accommodate both actual and regarded-as disabilities.
For example, in Williams v. Philadelphia Housing Auth. Police Dep't, the plaintiff, who was a police officer, did not have an actual disability but the city restricted his ability to have access to or otherwise be around others carrying firearms because a departmental psychologist prohibited him from carrying a firearm. The Third Circuit held that the City violated the officer’s ADA right because it refused to explore reasonable accommodations. Similarly, in D'Angelo v. Conagra Foods, Inc., the Eleventh Circuit held that even though the employee expressly denied being disabled due to her vertigo, the employer was nevertheless required to reasonably accommodate her physician's restriction on working around moving equipment when it treated those same restrictions as precluding any work in the employer's plant. Likewise, in Kelly v. Metallics West, Inc., the Tenth Circuit affirmed a jury verdict for an employee who had been released to return to work with an oxygen bottle, but who apparently was denied that opportunity based on her employer's generalized fear that she might "fall over dead."
In addition to illustrating the dangers of interpreting restrictions broadly, these holdings illustrate the limited availability of any "good faith" defense in ADA cases. For example, the Third Circuit has held that if the employer believes that a perceived disability inherently precludes the successful performance of the essential functions of a job, with or without reasonable accommodation, "the employer must be correct about the affected employee's ability to perform the job in order to avoid liability." Therefore, at least in the Third Circuit, an employer may be held liable for a violation of a "regarded-as" disabled plaintiff's rights under the ADA even "if the employer is innocently wrong about the extent of his or her impairment."
As such, these cases also highlight the importance of carefully analyzing any information gathered during the interactive process in determining whether a reasonable accommodation is possible. The facts in Kelly demonstrate the danger in proceeding based upon only generalized assumptions as to an employee's health, while Williams shows that employers may have a very limited ability to ignore the findings of their own physicians. D'Angelo cautions employers against relying upon broadly-worded restrictions – even by an employee's own physician – when an individualized determination of the employee's actual condition and the essential functions of the position as actually performed might lead to another conclusion.
For more information, please contact the author at deveney@elarbeethompson.com.
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