Employment Law Daily Healthy employee fired before trip to Ghana because employer feared she would become disabled has no basis for ‘perceived as’ claim
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Monday, September 16, 2019

Healthy employee fired before trip to Ghana because employer feared she would become disabled has no basis for ‘perceived as’ claim

By Ronald Miller, J.D.

Even construing the statute broadly, the terms of the ADA protect persons who experience discrimination because of a current, past, or perceived disability—not because of a potential future disability that a healthy person may experience later.

Addressing issues of first impression as to the meaning of “regarded as having such impairment,” under 42 U.S.C. §12102(1)(C) of the ADA, the Eleventh Circuit concluded that the EEOC failed to state a “regarded as” disabled claim where it did not allege that an employer perceived an employee as having an existing impairment at the time it terminated her employment. The employee was fired before she made a trip to Ghana, West Africa, because her employer feared she would come into contact with a person having Ebola while in Ghana. Moreover, the appeals court concluded that the EEOC’s complaint allegations that the employee might come into contact with unknown individuals while traveling in Ghana were too attenuated to state an association discrimination claim under 42 U.S.C. §12112(b)(4), which requires both a known association and a known disability. Judge Jordan filed a separate concurring opinion (EEOC v. STME, LLC dba Massage Envy-South Tampa, September 12, 2019, Hull, F.).

Fear of Ebola. The employee began working as a massage therapist for Massage Envy in January 2012. At no time relevant to this case did she have a disability. Rather, she was both capable of performing her job and did perform her job duties in a satisfactory manner. In September 2014, the employee asked Massage Envy for time off so she could visit her sister in Ghana. A Massage Envy manager initially approved the request. However, just three days before her scheduled trip, one of the facilities’ owners told her that she would be fired if went ahead with her travel plans.

The owner was concerned the employee would become infected with the Ebola virus if she traveled to Ghana and would “bring it home to Tampa and infect everyone.” At that time in 2014, there was an Ebola epidemic in Guinea, Liberia, and Sierra Leone, three nearby countries. Because the employee refused to cancel her trip, the employer terminated her employment before she left.

The employee traveled to Ghana as planned and did not contract Ebola while there. In fact, there was no Ebola outbreak at all in Ghana in 2014. Upon her return, she did not work at Massage Envy and was not permitted to keep her massage appointment bookings.

Perceived disability claim. In November 2014, the employee filed a charge of discrimination with the EEOC, asserting that Massage Envy terminated her because her employer feared she would come into contact with a person having Ebola while in Ghana. Based on this allegation, the employee claimed that Massage Envy discriminated against her because it “perceived her as disabled or as having the potential to become disabled,” in violation of the ADA.

On September 6, 2016, the EEOC found that there was “reasonable cause” to believe Massage Envy terminated the employee because it “regarded” her as disabled, in violation of the ADA. After conciliation efforts failed, on April 26, 2017, the EEOC filed suit against the employer alleging that it violated the ADA by terminating the employee because it regarded her as disabled and by not permitting her to return to work based on her association with people in Ghana. The employee intervened in the suit alleging that Massage Envy violated the ADA and Florida Civil Rights Act because the termination decision was based on unfounded fears and beliefs about Ebola and the employee’s risk for the disease.

Lower court proceedings. Ultimately, the district court granted Massage Envy’s motion to dismiss the EEOC’s regarded as disabled claim because the employer did not perceive the employee as having Ebola at the time it fired her. The district court declined to expand the ADA’s “regarded as having” prong of the disability definition to cases like this one, in which the employer “perceives the employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.” The district court also concluded that the EEOC’s association claim lacked merit.

“Regarded as having”. The main question on appeal was whether the employee was “disabled” within the meaning of the ADA at the time that Massage Envy terminated her employment. The EEOC contended that the employee met the regarded as prong of the disability definition because Massage Envy regarded her (or perceived her) as having a disability due to its belief that she would contract Ebola in the future while traveling to Ghana.

Here, the Eleventh Circuit concluded that the disability definition in the ADA did not cover this case where the employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of travel overseas. The ADA’s definition of “disability” in Section 12102(1) provides that a disability is a present “physical or mental impairment,” “a record of such impairment,” or “being regarded as having such an impairment.” Impairment is limited to impairments that exist at the time of the adverse employment action and does not include impairments that manifest after the alleged discrimination.

Actual impairment or perceived impairment. In regarded as cases, the employee must show that the employer knew he or she had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action. When Section 12102(3)(A) is read most naturally, an individual meets the requirement of being regarded as disabled only if she was subject to termination “because of an actual or perceived physical or mental impairment.”

Even construing the disability definition broadly in favor of coverage, the Eleventh Circuit still concluded that the terms of the ADA protect anyone who experiences discrimination because of a current, past, or perceived disability—not a potential future disability. Moreover, the appeals court found its conclusion consistent with the EEOC’s own interpretative guidance, which states that a predisposition to developing an illness or disease is not a physical impairment. Under the facts of this case, Massage Envy did not perceive the employee as having a physical impairment within the meaning of the ADA when it terminated her employment. Accordingly, the EEOC’s claim did not fall within the scope of the “regarded as having” prong of the ADA’s disability definition.

Association claim. Next, the appeals court considered the EEOC’s claim of association discrimination under Section 12112(b)(4). In this claim, the EEOC argued that Massage Envy fired the employee based on her association with people in Ghana whom it believed to be disabled by Ebola. However, the appeals court concluded, the EEOC’s complaint allegations that the employee might come into contact with unknown individuals while traveling in Ghana was too attenuated to state an association discrimination claim under Section 12112(b)(4), which requires both a known association and a known disability.

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