Don’t Forget About “Regarded as Disabled” when doing your ADA Analysis

A lawsuit just filed by the EEOC demonstrates the importance of remembering that just because an individual does not have an impairment that limits a major life activity does not mean that they cannot establish a claim under the Americans with Disabilities Act (ADA).

In order to establish a claim under the ADA, a plaintiff must demonstrate that she or he either: 1) has a physical impairment that substantially limits a major life activity; 2) has a record of such impairment; or 3) is “regarded as having such an impairment”.

According to the EEOC’s complaint, Ashley Distribution Services, Ltd., a Wisconsin corporation doing business in Advance, North Carolina, violated federal law when it refused to hire Farrell Welch because the company regarded him as disabled. The EEOC alleges that the company offered Mr. Welch a position as a yard driver on the condition that he obtain a DOT medical certification; meet the physical requirements for the job; and show that he could perform the required job duties.  Per the EEOC, Mr. Welch already had a valid DOT medical certification at the time of his application; successfully completed a second DOT medical exam at the company’s request; and successfully completed the company’s driving test.  However, the company was concerned that Welch could not safely enter and exit a truck due to a rotator cuff injury Welch disclosed during his DOT medical exam, and the company required Welch to undergo a fit-for-duty exam.  The EEOC said that Ashley Distribution did not hire Welch even though he was capable of performing the yard driver job.

According to the EEOC, Ashley Distribution’s alleged conduct violates the ADA, which protects employees from discrimination based on their disabilities, including perceived disabilities. “An employer cannot refuse to hire an applicant based on fears or other assumptions about the applicant’s ability to safely perform the duties of the job, simply because the employer presumes an applicant has a disability,” said Lynette A. Barnes, regional attorney for EEOC’s Charlotte District. “The EEOC will continue to litigate cases where disabled persons, including those who are regarded as being disabled, are denied jobs for which they are qualified.”