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The ADA protects three classes of "disabled" employees:
To qualify as "regarded as having" an ADA-protected impairment, one must show that the employer perceived a physical or mental impairment, and that the impairment was one with a duration of more than six months.
In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:
The Court concluded that these remote and isolated statements could not support her "regarded as disabled" claim. The Court affirmed the trial court's dismissal of the ADA claim, stating:
First, none of Rogers's statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, ... the concern reflected in each of Rogers's statements-including the third statement ... -centers on Gecewicz's excessive absenteeism, not a perceived disability. Being absent from work is not a disability.
What is the takeaway for businesses? Train your managers and supervisors never to discuss employees' medical issues. "Regarded as" claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA's "regarded as" prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.
Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee's surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees' medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.
Lexis.com subscribers can access a Lexis enhanced version of the Gecewicz v. Henry Ford Macomb Hosp. Corp., 2012 U.S. App. LEXIS 12789 (6th Cir. Mich. 2012) decision, with summary, headnotes, and Shepard's.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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