Did you know that you can be found liable for disability discrimination against an employee who is not disabled?
The 1st U.S. Circuit Court of Appeals (the “Court of Appeals”) recently reminded us of this somewhat counter-intuitive concept in its decision in Roman-Oliveras, et. al. v. Puerto Rico Electric Power Authority (PREPA), et. al., Docket Number 09-1503.
Even if an employee is not technically disabled under the Americans with Disabilities Act (the “ADA”), an employer may be liable if it discriminates against the employee because the employer perceives the employee as disabled.
In Roman-Oliveras, et. al. v. Puerto Rico Electric Power Authority (PREPA), et. al., the Plaintiff, Hector Luis Roman-Oliveras (“Roman”) worked for the Puerto Rico Electric Power Authority (“PREPA”) for 22 years, despite having received a diagnosis of schizophrenia some 30 years earlier, and had received excellent evaluations.
However, after he had a conflict with his supervisors, PREPA barred Roman from working on March 1, 2006. PREPA would not allow Roman to return to work until he was evaluated by a psychiatrist.
Roman complied, had a psychiatric evaluation and, on April 24, PREPA’s social worker received the psychiatric report. The psychiatric report indicated that Roman was fully capable of working. Roman, however, was not allowed to return to work.
Roman repeatedly asked to return to work and PREPA’s physicians even recommended that Roman return to work on October 17. Nonetheless, his supervisors requested additional medical evaluations and referred Roman for an involuntary medical leave on November 13.
In January, 2007, Roman submitted medical certification from his psychiatrist, yet, despite findings by all of his doctors that he was capable of working, PREPA took Roman off of its payroll in February, 2007. PREPA has kept Roman on medical leave, without pay, since February 10, 2007.
Under the ADA, a person is considered disabled if he or she is substantially limited in any major life activities. The trial court dismissed Roman’s claims under the ADA on the grounds that he “did not allege that schizophrenia substantially limited any aspect of his life, including his ability to work” and therefore was not disabled under the ADA definition.
However, as the Court of Appeals found, an employee may bring a case under the ADA if he is discriminated against because he is “regarded as” disabled by his employer. 42 U.S.C. § 12102 (2) (2008). This is true regardless of whether the employee is, in fact, disabled.
In this case, the Court of Appeals noted that “Roman was removed from his position and forced to undergo multiple medical evaluations at the behest of the defendants, and also was required to submit a medical certification from his treating psychiatrist. Despite favorable test results each time, defendants persisted in refusing to allow Roman to work.”
Therefore, the Court of Appeals found that Roman was being “regarded as” disabled, even though he did not allege that he was substantially limited in any major life activities. As such, he was entitled to bring his claims forward.
As an employer, you need to make sure you are treating your employees properly; whether they have a disability or not. While it may seem easier to place an employee on unpaid medical leave, instead of terminating him, you must be aware of unseen pitfalls.