That’s right, readers – a court has actually held that an applicant for employment does not have a viable claim for disability discrimination under the ADA if the prospective employer fails to hire him because of his prior conviction for possession with intent to sell heroin and cocaine. Shocking, huh?   

We are being a little facetious, of course, since this federal appeals court decision is self-evident. However, we think that its is blogworthy nonetheless to illustrate a few points. 


First point – anyone can file a lawsuit and sue anyone about anything no matter how frivolous, especially a pro se litigant, which is someone (such as the plaintiff here) who files a lawsuit by himself without an attorney.  So don’t be alarmed if you too find yourself someday at the wrong end of a summons – the case may very well lack any merit whatsoever and be dismissed quickly.


Second point – with a pro se litigant, a court is likely to bend over backwards to make sure that his rights are protected. The court in this case did this by reviewing all possible claims that could be read into the plaintiff’s inartful complaint. The court reviewed the elements of an ADA claim, and found that the plaintiff did not allege that he had the required physical or mental impairment necessary to demonstrate a disability.  


The court next reviewed claims under Title VII, which plaintiff raised for the first time on appeal – he claimed that defendant’s alleged failure to hire him because of his criminal conviction was discrimination not only under the ADA but also under Title VII.   The court correctly ruled that “we do not consider claims presented for the first time on appeal.” However, in true “bending over backwards” fashion, the court still considered plaintiff’s allegations under the standards of Title VII. 


The court stated (again correctly) that Title VII indeed prohibits any employment practice that causes a “disparate impact” on members of a protected class, and noted that it had previously held that an employer who refuses to hire because of a prior criminal conviction may run afoul of Title VII if the employer’s policy has a disparate impact on a protected class. However, the court found that plaintiff in this case did not allege that he was, in fact, a member of a protected class.  Case dismissed.


Last point – just as anyone can file a lawsuit, no matter how frivolous, it is also true that a court can, at least in the initial stage of a lawsuit, read some potential legal claim into the allegations in the complaint that will permit a plaintiff to go forward with the case. So don’t ignore a summons, and make sure that it is dealt with professionally.