Employment Law Daily EEOC ‘regarded as’ ADA claims fail for therapist fired over concern she might contract Ebola
Thursday, February 22, 2018

EEOC ‘regarded as’ ADA claims fail for therapist fired over concern she might contract Ebola

By Kathleen Kapusta, J.D.

Declining to expand the ADA’s “regarded as” disabled definition to cover cases in which an employer perceives an employee to be presently healthy, with only the potential to become disabled in the future due to voluntary conduct, a federal court in Florida dismissed the EEOC’s claim that the employer unlawfully fired a massage therapist days before her trip to Ghana because she might become infected with Ebola. And because the therapist had not yet had any association with persons in Ghana, and there was no evidence the employer knew any individual in Ghana had Ebola, the EEOC’s association discrimination claim also failed (EEOC v. STME, LLC dba Massage Envy—South Tampa, February 15, 2016, Scriven, M.).

When the massage therapist asked for time off to visit her sister in Ghana, her request was initially approved by the company’s business manager. The employee alleged, however, that she was fired three days prior to her trip because one of the owners was concerned “she would be infected with Ebola if she traveled to Ghana,” would bring the virus home, and would infect coworkers and clients upon her return. Suing on her behalf, the EEOC asserted claims under the ADA for regarded as disability discrimination and association discrimination.

Exhaustion. After clarifying that it was considering the EEOC’s claims only to the extent they applied to the employee’s termination, and not to any discriminatory conduct that may have occurred after her termination, the court found the EEOC exhausted its administrative remedies with respect to its association discrimination claim. Although the employee’s charge did not expressly allege she had been discriminated against due to her association with known disabled persons, she alleged she was fired due to her potential “contact with a person having Ebola.” This language was sufficient to give rise to an investigation into an association discrimination claim.

Regarded as “potentially” disabled. Moving to dismiss the regarded as claim, the employer pointed out that at the time of the employee’s termination, the owner did not perceive her as presently having Ebola. Rather, he perceived her as having the potential to become infected with Ebola in the future, which does not fall under the protection of the ADA. For its part, the EEOC, relying on several cases, argued that employers can violate the ADA even when they discriminate against an “otherwise healthy individual based upon misconceptions about that person’s potential to become disabled in the future.”

“Currently contagious” cases distinguished. But the EEOC’s reliance on these cases was misplaced, said the court, pointing out that all of those employers mistakenly believed their employees were presently impaired. In School Board of Nassau County v. Arline, for example, a school teacher who had a prior history of tuberculosis was terminated because her employer perceived her to be contagious after several cultures revealed that the illness was active in her system. Unlike this case, said the court, the employer’s fears that the teacher could infect others in the future were grounded in its misperception that she was currently contagious. And while the EEOC also cited to Valdez v. Minnesota Quarries, Inc., in which an employee was terminated after traveling to Mexico to visit his gravely ill sister due to his employer’s fears that he had contracted swine flu during his trip, that case also involved an employer who terminated an employee based on a perception that the employee was currently infected with swine flu. Refusing to expand the ADA’s regarded as disabled definition, the court found the EEOC failed to state such a claim.

Association discrimination. Turning to the EEOC’s claim that the employee was fired based on her association with people in Ghana whom the owner believed to be disabled with Ebola, the court pointed out that at the time of her termination, she had not yet had any association with anyone in Ghana. Nor did the employer know that any individual in Ghana had Ebola. The EEOC, however, citing to the Eleventh Circuit’s decision in Pereda v. Brookdale Senior Living Communities, Inc., argued that the timing of the discriminatory act does not control in association discrimination claims. In Perada, the court held that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” But Perada, observed the court here, involved FMLA interference and retaliation claims and thus was inapposite.

It is evident, said the court, by the plain language of the ADA and binding case law that an employer must know of a presently existing or past association with a disabled person at the time of the adverse action to fall within the ADA’s association discrimination provision. Here there was no question the owner was without knowledge of a current association between the employee and individuals in Ghana at the time of the employee’s termination, because any such association had not yet occurred.

Known disability. Further, explained the court, even if a plaintiff could bring an association discrimination claim for a potential future association with a disabled individual, the ADA clearly requires that such an individual have a “known disability.” While the EEOC pointed to several cases providing that the ADA’s association provision would apply to prevent discrimination against employees who volunteer in HIV/AIDS clinics for their association with patients infected with the disease, in those cases, the people with whom the volunteers were associating were actually infected with HIV or AIDS. Observing that the EEOC misconstrues the purpose of the ADA association provision, which is to protect individuals from discrimination based on unfounded stereotypes and assumptions about the known disabilities of the people with whom they associate, the court explained that the ADA does not establish a cause of action for discrimination against an individual who associates with people who themselves are merely regarded as disabled. And while the owner’s behavior in terminating the employee based on his ignorant beliefs and resulting bias that people in Ghana have Ebola was deplorable, it was not actionable under the ADA, said the court, granting the employer’s motion to dismiss.

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