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EEOC successfully argues Sixth Circuit misapplied ‘regarded-as-disabled’ test

By Dave Strausfeld, J.D.

In a June 2016 decision, the Sixth Circuit misapplied the standard for regarded-as-disabled claims, reasoned a federal district court in Michigan, agreeing with the EEOC’s position in an enforcement action. Contrary to the appeals court’s decision in Ferrari v. Ford Motor Co., an employee did not need to show she was regarded as limited in a major life activity, because such a requirement was eliminated by the ADA Amendments Act of 2008 (ADAAA). Applying the correct standard here, a health center violated the ADA when it fired a recently hired community outreach coordinator over fears that her migraines or other impairments might interfere with her job performance, so the court granted summary judgment to the EEOC on the issue of liability (EEOC v. M.G.H. Family Health Center, January 27, 2017, Maloney, P.).

Sixth Circuit’s decision. In Ferrari, the Sixth Circuit determined that a plaintiff bringing a regarded-as-disabled claim must specify which “major life activity” the employer perceived was limited. But Ferrari relied on superseded pre-ADAAA cases. Congress explicitly clarified in the ADAAA that “major life activity” definitions are not relevant to the question of whether an individual has suffered unlawful discrimination based on a perceived disability. The district court here was “uncertain why Ferrari cited pre-Amendments Act cases for a principle of law that no longer applies.”

Choosing not to follow Ferrari even though it is circuit precedent, the district court emphasized here that it was applying the ADAAA’s plain language “over case law that has been directly superseded by the Amendments Act and no longer is binding on the precise point at issue.”

“Textbook case.” With that matter out of the way, the court went on to discuss the facts of the case at hand, which “represents a textbook case” of unlawful discrimination based on a perceived disability in violation of the ADA, which protects employees who are “perfectly able” to perform a job from being rejected “because of the myths, fears and stereotypes associated with disabilities.”

In 2013, a health center discharged a recently hired community outreach coordinator for medical reasons. She had been told she would be required to undergo a “post-offer” physical with a third-party medical evaluator, Workplace Health, but had been permitted to begin her employment in the meantime. After conducting a physical, Workplace Health recommended she be put on a “medical hold” and undergo a costly functional capacity evaluation (FCE) due to migraines and other medical issues resulting from injuries in a car accident.

Without giving her a chance to have an FCE, the health center terminated her employment—even though she had offered to pay for the FCE herself, the court found.

“Inexplicably” fired her. Besides not giving her the opportunity to have an FCE, the health center ignored “objective evidence” that she could perform the essential functions of her position. At the time she was terminated, she had already been on the job “for over five weeks” and had fulfilled her duties “successfully, and without a single incident,” the evidence showed. Nonetheless, the health center “inexplicably” fired her.

Employer’s arguments. The health center asserted that it relied on the advice of its consultant, Workplace Health. But employers “do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties,” the court stressed, quoting the Sixth Circuit in Holiday v. City of Chattanooga. If the health center’s defense were accepted, “all employers could simply contract out” disability determinations and be immune once they mechanically relied on the medical opinions and advice of third parties, “even if the medical opinions were objectively unreasonable, or as in this case, not even complete.”

Nor could the health center successfully contend that she was not “otherwise qualified” for her position. Discussing this question in extensive detail, the court held that the health center was “statutorily estopped” from arguing that the employee was not otherwise qualified because the health center “never completed an individualized inquiry” prior to terminating her on the basis of a perceived disability.