The case is Bellerose v. SAW No.39, decided by Judge Paul Barbadoro of the District Court of New Hampshire on 12/29/14 [2014 U.S. Dist. LEXIS 177718]. The facts of the case are that Bellerose, a school janitor, had difficulty communicating with his co-workers and supervisors, and the school’s principal did not renew his contract for the alleged reason that Asperger’s got in the way of his job performance.  More on that shortly.

More generally, there are three ways to meet the burden of being disabled within the meaning of the ADA.  The first and most commonly used way is to have a current physical or mental impairment that substantially interferes with a major life activity.  The second and least commonly used way is to have a history of a physical or mental impairment that substantially interferes with a major life activity.  The third way, less common than current impairments but more common than historical impairments, is to be regarded as having physical or mental impairment that substantially interferes with a major life activity. Regardless of any other issues, the plaintiff must be able to perform all essential job functions with or without reasonable accommodation.

In many cases, plaintiffs asserting the current impairment fail to prove they're disabled because (a) the impairment is found not to limit a major life activity and/or (b) the impairment is so severe that the individual cannot perform all essential job functions even with accommodations (a situation commonly referred to as an “insurmountable barrier”).  Against this background, employers can make the mistake of assuming that a given physical or mental impairment (like Asperger’s) fails the current impairment test without considering accommodations.  By doing so, employers run the risk of regarding the individual as being disabled as in #3 above.

The easiest way to do this is to have a rule that excludes from work individuals with certain disorders.  For example, in Sarcyki v. UPS (1994) [862 F.Supp 336], UPS excluded individuals with insulin dependent diabetes from driving trucks weighing more than 10,000 pounds, which ran afoul of the Department of Transportation rule that the proper weight of trucks for such an exclusion is 20,000 pounds.  Although not the victim of any exclusionary rule, the school principal gave Bellerose the easy path to proving disability by failing to consider any accommodations, thus regarding him as being disabled.

Bellerose informed the principal about his disorder in writing, asking for accommodations that would enable him to best avoid workplace communication problems.  However, the principal did not renew his contract, and Bellerose presented direct evidence that the principal told him “Your Asperger's got in the way of your ability to interact with your boss, and we are tired of it.”  There was also a retaliation claim in which Bellerose also claimed he was fired for being a whistle blower, which though interesting its own right, is of lesser importance than the ADA claim.  However, unrelated to the claim of disability, SAU did argue that Bellerose was terminated because of his failure to follow the proper chain of command because he took his whistle blowing accusations outside the school.  SAU argued it was entitled to summary judgment, which was denied.  The judge ruled that a reasonable jury could conclude that this argument was pretext for terminating Bellerose because of his disorder.

The moral of the story is that employers should never assume that an individual is incapable of performing essential job functions based on either past history of performance and/or the nature of the physical or mental impairment.  Upon request, reasonable accommodations must always be considered, regardless of perceptions that the individual cannot perform essential functions without reasonable accommodations.  By not doing so, SAU gave Bellerose a free pass around the more burdensome proof that a current impairment substantially limited a major life activity, and that he could perform all essential functions with reasonable accommodations.  In fact, Bellerose had only one past performance evaluation in which he was graded as being either outstanding or very good in all categories considered.  Thus, if anything, there was ample reason to assume that accommodations for his communication problems should have been considered.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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