by Art Gutman Ph.D., Professor, Florida Institute of Technology
There are three prongs to being disabled within the meaning of the ADA: (1) a current physical or mental impairment that substantially interferes with a major life activity; (2) a history of such an impairment; or (3) being falsely regarded as having such an impairment. It is rare that employers make the Prong 3 mistake, but that’s what is alleged to have occurred to an employee of Dependable Health Services (DHS), a San Antonio company that provides contract workers to US military facilities (see http://www.eeoc.gov/eeoc/newsroom/release/9-12-12a.cfm). The employee was hospitalized after an attack of Bell’s Palsy, a sudden weakness and paralysis on one side of the face due to injury to the facial nerve. It occurs in approximately 40,000 Americans each year and affects men and women equally. The employee was fired upon returning to work because DHS believed she suffered a stroke and was concerned that she would suffer another stroke at work. The problem is, the Bell’s Palsy is not a stroke. According to EEOC Attorney David Rivera:
Firing an individual because of a disability or a misperception about a disability's effects violates the ADA …..It is unfortunate-and illegal--to fire someone simply because of an inaccurate perception about a medical impairment or disability.
EEOC Supervisory Trial Attorney Judith G. Taylor added:
Based on the doctor's notes, which stated that the claimant could return to work, DHS should have returned this employee to work. Instead, the company allowed speculation and fears over her perceived disability to prevent this employee from returning to her job. This is exactly the type of discrimination the ADA was meant to address and stop."
The EEOC attempted but failed to reach a voluntary settlement with DHS, and is therefore suing for back pay, compensatory and punitive damages, and injunctive relief (Civil Action No. 5:12-cv-00846-XR).