Woman "Perceived as Disabled" Under ADA

Kimberly Ann Norman, a Union Pacific Railroad (“UNP”) employee, had a number of physical medical conditions, including irritable bowel syndrome, requiring short term and long term disability leave in the early 2000s. As with many LTD plans, the insurance company, or in this case, UNP, questioned whether Ms. Norman’s medical conditions were due in part to mental illness, thus subjecting Norman to a limited term of benefits known as a mental illness limit. The company required Ms. Norman to undergo an independent medical examination (“IME”), which resulted in the company’s physician determining that Norman’s long term disability resulted from mental, not physical conditions.

When she was later terminated, Ms. Norman claimed discrimination under the Americans with Disabilities Act (“ADA”) because UNP regarded her as mentally ill and terminated her because of the perceived disability.  Despite the fact that she did not regard herself as mentally disabled, never voluntarily sought treatment for mental disabilities, never received a second opinion from a physician confirming mental disability, and filed appeals and extensions allowing her to collect LTD benefits for her physical disabilities, the 8th Circuit Court of Appeals agreed with Ms. Norman’s argument.  For purposes of the ADA, Ms. Norman established an ADA-qualifying disability because the employer regarded her mentally disabled due to the findings of its own physician in Norman's LTD claim.

 

The “perceived as disabled” rule prevents employers, insurance companies, and plans from arguing in LTD cases that the employee’s disabilities are rooted in mental illness, and then turning around and arguing in an ADA discrimination case that the employee does not have an ADA-qualifying mental disability.

Two "failure to hire" Disability Discrimination Suits Resolved

On June 15, 2010, the EEOC reported that it reached an agreement with Starbucks to settle a suit for Starbucks' failure to hire Chuck Hannay, who suffers from multiple sclerosis. Among other terms of the agreement, Starbucks paid $80,000 to resolve the suit. Mr. Hannay applied for one of six open barista positions at a store in Russellville, Arkansas, but the store did not contact Mr. Hannay in response to his application. It instead hired other, less experienced candidates to fill the open barista positions. Starbucks reportedly worked in a cooperative manner with the EEOC to insure that similar discrimination would not occur in the future. Failure to hire individuals with physical or mental impairments that substantially limit one or more of their major life activities is illegal under the Americans with Disabilities Act.

On June 16, 2010, the EEOC issued a news release revealing that it settled a similar case against Balance Staffing. Balance's owner and manager hired Jocelyn Snower as a recruiter. When the owner learned that Ms. Snower is blind, he immediately revoked the job offer, despite the fact that Ms. Snower is an experienced recruiter. This is an example of "direct" disability discrimination, which is unlawful under the ADA.  In order to resolve the suit, Balance was forced to pay $100,000 and the owner was compelled to enter ongoing EEO training.  Individuals who are subjected to such adverse treatment should contact an employment lawyer and the EEOC.