Fact or Fiction: Your employee’s nasty facial scar may be a disability

Fact or Fiction?That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Your new employee at local pizzeria has what we’ll call a “facial deformity.” So, rather than having him work the cash register, or otherwise emerge from the kitchen, you mandate that he work in the back so that no customers will ever see him.

Have you violated the Americans with Disabilities Act?

Well, it’s probably time to call the lawyer…

Under the ADA, it is unlawful to discriminate against a disabled employee. An individual has a “disability” if he:

  1. has a physical or mental impairment that substantially limits one or more of the major life activities of an individual;
  2. has a record of such impairment; or
  3. is regarded as having such impairment.

The supporting regulations are clear that a cosmetic disfigurement, such as a “facial deformity,” qualifies as a physical impairment. And if that physical impairment substantially limits a major life activity such as — I dunno — working, we’ve got an ADA disability. Moreover, if the employer keeps the employee in the back under the pretense of appealing to “customer preferences,” then the employee is likely being “regarded as” disabled. 

To be clear, employment decisions that are based on the discriminatory preferences of customers are just as unlawful as decisions based on an employer’s own discriminatory preferences. 

(You may be thinking bona fide occupational qualification. Indeed, religion, sex, or national origin can be a bona fide occupational qualification; the ADA contains no BFOQ defense). 

The answer to today’s QATQQ is FACT. And, for more, check out this recent federal-court decision authored by none other than the author of the most blunt same-sex sexual harassment judicial opinion…evah!