Fear of the Ebola Monster, and acting on other stereotypes, can create scary ADA lawsuits

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There are three types of disabilities under the Americans with Disabilities Act:

  • a physical or mental impairment that substantially limits one or more major life activities (an “actual disability”), or
  • a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
  • an actual or perceived impairment that is not both transitory and minor (“regarded as”).

It’s the “regarded as” prong that I’m going to address today with a little help from the EEOC and Yo Gabba Gabba.

Last week, the EEOC announced in this press release that it had filed this ADA lawsuit against a Florida employer that had supposedly regarded an employee who did not have a disability as actually having one:

According to the EEOC’s lawsuit, company officials insisted Kimberly Lowe cancel her approved vacation plans because they feared her travel would lead to a potentially catastrophic outbreak of Ebola in the United States, and fired her when she refused to do so. The EEOC said that the company discharged Lowe because it regarded her as disabled based on its unfounded fears and beliefs about Ebola in Ghana and the risk that she would contract Ebola on her trip.

(Although, the EEOC has some pointers on pandemic guidance.)

That’d be like DJ Lance kicking Brobee out of Gabbaland for eating those tiny, ugly germs. Except, Brobee listed to the peanut-butter toast and ending up with a clean piece, rather than the one that fell on the ground. Crisis averted.

But, for those of you who operating in the US — and not in Gabbaland — heed this advice from the EEOC about acting on baseless stereotypes — rather than facts:

“In passing the Americans with Disabilities Act, Congress sought to protect people from being discriminated against based on unsubstantiated fears, myths, and unfounded stereotypes about actual or perceived disabilities….Making employment decisions based on perceptions of disability clearly violates federal civil rights law. All employers need to be aware that the EEOC will continue to enforce the ADA vigorously.”

Hopefully, you won’t find yourself in a Brobee-like predicament. But, if you do…

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