Time for a pop-quiz on disabilities in your workplace! (I hope you brought your No. 2 pencils, because it’s multiple choice).
You are a supervisor at Company X. You have an employee who has worked for the company for a number of years. By all accounts, he’s a reasonably good employee — receiving raises and benefits for performance over the years. At the time he was hired, he disclosed a number of his medical conditions, including hemophilia, HIV+ status, and Hepatitis C. The employee comes to you and says he will be undergoing a six-month treatment regimen for his hepatitis, for which he will not take leave during the treatment period.
(A) Share with the employee your own personally-held fears and stereotypes regarding his illness
(B) Distance yourself from the employee, speaking to him less and less during the course of his treatment
(C) Fire the employee four months after he completes the treatment
(D) None of the above
If you picked (D), congratulations — you’re correct! One supervisor at NJ Transit, however, appears to have run afoul of a similar situation, resulting in the state transportation agency shelling out $200,000 to settle a discrimination suit:
Kenneth Hitchner, a nine-year employee at the public transit agency, disclosed when he was hired as a public information officer in 2002 that he had hemophilia, Hepatitis C and was HIV positive, according to a copy of the lawsuit obtained by The Trentonian . . .
Hitchner’s direct supervisor, Ken Miller, allegedly had an animus towards people infected with Hepatitis C.
“Miller had previously told Hitchner that Miller was afraid of Miller’s own mother because she had Hepatitis C and was afraid that she would infect his kids by going to the bathroom in the house,” the lawsuit reads . . .
“Miller began distancing himself from Hitchner and speaking to Hitchner less and less during the months that Hitchner was undergoing the Hepatitis C treatment,” the lawsuit states.
After his treatment was complete in February 2010, Hitchner was advised four months later that his job was eliminated due to “budget cuts,” court documents outline.
Hitchner then learned that other employees without disabilities whose positions were also eliminated were offered other jobs with the agency at the same rate of pay. When Hitchner protested this to the agency and requested a similar placement, he was offered a customer service representative position, which is an entry-level position with lower pay, documents show.
A few disclaimers. The news story above only cites the plaintiff’s complaint. Thus, we don’t have the benefit of knowing what legal defenses the employer would have asserted, nor the additional facts the employer might use to support those defenses. Another point to keep in mind: as the case has settled, none of its allegations or theories have been tested by rigorous cross-examination. Nor has any liability been duly adjudged by a jury. It’s fair to say that we are probably not getting the full picture by merely reading the story and that the hypothetical presented above is somewhat oversimplified.
All of that said, the story raises a few worthwhile points to remember when it comes to employee disabilities in the workplace. (Note: the suit alleges a claim under New Jersey’s Law Against Discrimination, but for the benefit of our broader readership, I will discuss these points in the context of the Americans with Disabilities Act).
First, do not rely on fear, generalizations, or stereotypes in making decisions about an employee’s disability. The ADA does permit employers to set qualification standards that an employee will not pose a “direct threat” to health and safety in the workplace. “Direct threat” is a legal defense established by the ADA that refers to “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require an employer to weigh a number of factors, and as such, this defense is very fact-specific. However, the determination must be established through individualized judgments of the employee’s ability to safely perform the job’s essential functions and must be based on reasonable medical judgment and objective evidence. In other words, taking adverse action against an employee that may be motivated by fear or stereotypes regarding their disability (such as, a supervisor allegedly expressing fear that people with Hepatitis C will infect others by using the bathroom) is asking for legal trouble.
Second, remember: “disability” is broadly defined. A bit of backstory may be helpful here. In 2008, Congress amended the ADA via the Americans with Disabilities Amendments Act (or, “ADAAA”). Congress did so in response to a number of court decisions, including Supreme Court decisions, that construed the definition of disability in what it regarded as too narrow or technical a fashion. In particular, the ADAAA included a directive that disability should be broadly construed in favor of coverage.
One method to establish protected disability status is when an employee has a physical or mental impairment that substantially limits one or more major life activities. The Act itself states the determination of whether a life activity is “major” should not be interpreted strictly or create a demanding standard for disability. Moreover, with the exception of eyeglasses or contact lenses, determining if a major life activity is substantially limited is done “without regard to the ameliorative effects of mitigating measures,” such as medication. Thus, in the example above, an employer would not be able to successfully argue that because the employee was undergoing treatment, he was not disabled under the meaning of the law.
Third, train, train, and train some more. Training your supervisors, managers, and HR team on the nuances of the ADA (and any state/local law equivalents in the states where your business operates) is a crucial component of ensuring compliance, promoting harmony in the workplace, and reducing potential legal exposure. You should plan for regular training — at least annually.