It's not disability discrimination when you don't know about the disability.

November 2, 2012
By Eric B. Meyer on November 2, 2012 9:00 AM | | Comments

Books of Knowledge

William Wengert is HIV-positive. He worked as a certified nursing assistant for Phoebe Ministries, until he was terminated last year following an incident in which a resident suffered a broken leg. The company claimed that the incident with the resident precipitated the firing. Conversely, Wengert alleged that the company violated the Americans with Disabilities Act by terminating him because of his HIV-positive status.

Now, let's pause there for a second. I think we can all agree that just because a disabled employee -- unquestionably, being HIV-positive is an ADA-disability -- is fired, does not mean that the employer has violated the ADA. There could be many legitimate business reasons that could trigger an adverse employment actions (e.g., $$$, performance, discipline, etc.).

Legitimate business reasons aside, the Wengert Court (opinion here) highlighted that "disabilities are often unknown to the employer." Therefore, "the requirement that plaintiff show he is disabled implies a requirement that the plaintiff show employer knew of employee's disability." In Wengert, the plaintiff could not demonstrate that anyone involved in his firing knew that he was HIV-positive. Therefore, Wengert's disability could not have motivated his termination. Thus, no disability discrimination.

Knowledge is power, except when it's not.

And if you don't know, now you know...