- A federal district court erroneously dismissed an employee's claims of "regarded as" discrimination under the Americans with Disabilities Act (ADA), the 6th U.S. Circuit Court of Appeals concluded (Babb v. Maryville Anesthesiologists P.C., No. 19-5148 (6th Cir. Nov. 6, 2019)).
- The employee, Certified Registered Nurse Anesthetist (CRNA) Paula Babb, had a degenerative retinal condition that made it difficult for her to read certain screens and medical records unless they were very close to her face. She told her employer that the condition did not affect her ability to do her job, and her condition became widely known around the office. She was eventually fired for making two "critical" clinical errors that had nothing to do with her vision. However, an email sent a few hours after the termination said she had been fired due to her worsening eyesight. Babb also provided expert evidence that even if the two alleged errors had happened exactly as her employer claimed, she did not violate the standard of care applicable to CRNAs in her area.
- The physicians involved in the termination decision discussed Babb's vision at the meeting during which they decided to fire her and on Babb's official evaluations. The email stating that Babb was fired because of her vision was written at the direction of "one of the key players involved in Babb's termination," said the 6th Circuit. In overturning the summary judgment in favor of the employer, the 6th Circuit said, "If this kind of 'smoking gun' evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could."
Illegal "regarded as" ADA discrimination occurs, according to the U.S. Equal Employment Opportunity Commission (EEOC), when an applicant or employee is believed to have a physical or mental impairment that is not transitory and minor (lasting or expected to last six months or less), even if the person does not actually have such an impairment.
In this case, the employee's retinal condition was widely known and discussed around the office. While this this may be unavoidable to a certain extent — Babb, for example, was often observed looking at computer screens very closely — employers should do their best to curtail gossip and speculation about employees' medical conditions, whether or not the ADA may potentially be implicated. The EEOC says the law requires employers to "keep all medical records and information confidential and in separate medical files."
How can employers work with employees in situations like these without running afoul of the ADA? If an employee seems to be having difficulty with one or more job functions, said David K. Fram, the director of ADA and EEO services for the National Employment Law Institute, managers can ask, simply, if the person needs help. If the employee says no, advises Fram, the manager should leave the issue there and document the situation.