Employers, Think Before You Discriminate

The United States Court of Appeals for the Third Circuit ruled last week in an Americans with Disabilities Act (ADA) case, Eshelman v. Agere Systems, that an employee was illegally terminated based on her employer's perception that she was substantially limited in the major life activities of working and thinking. The employee did not claim that she was actually disabled within the meaning of the ADA but contended that her termination was based on the employer’s belief that she was disabled or, alternatively, on her record of impairment.

The employee had undergone chemotherapy for breast cancer, which left her with short-term memory loss. She became disoriented at times while driving. After returning to work, she coped successfully with these problems by carrying a notebook, taking frequent notes, and riding with coworkers instead of driving. She received the highest possible performance rating on her appraisals for the two years following her return to work. She was promoted to a higher managerial position and earned raises and bonuses.

During a reduction in force, the facility where she worked was shut down. Supervisors planned to transfer her to another facility, based on her excellent performance history. However, when she mentioned her difficulty with driving and discussed the possibility of telecommuting, her performance rating was changed to one of the lowest scores and she was terminated. She was not given any opportunity to challenge this decision.

At trial, a supervisor testified that the change in the employee's performance rating was based in part on the employer’s perception that she would be unable to travel because of the residual effects of her chemotherapy and that she lacked the ability to perform the job. The jury found the employer liable for disability discrimination under the ADA. The Court of Appeals ruled that the evidence was sufficient to allow the jury to conclude that the employer had terminated the employee based on its perception that she was substantially limited in a major life activity.

The Court of Appeals noted that driving is not classified as a major life activity, which means that employees are not protected under the ADA from discrimination based on lack of driving ability. However, the jury reasonably could have inferred that the employer's concerns extended more generally to a belief that the employee was substantially limited in working and thinking, which are major life activities. Alternatively, the jury reasonably could have concluded that the decision to terminate the employee was based on her past history of having had such impairments. The Court of Appeals specifically stated that because the claim was based on the employer's perception of the employee's abilities, it was irrelevant whether the employee actually was disabled under the ADA.

There hasn't been much case law on the issue of thinking as a basis for a disability discrimination claim. However, because the recent amendments to the ADA have clarified that employees are protected from discrimination based on actual or perceived impairments in thinking, I expect that such lawsuits are likely to be brought more often.

Now, this is what I have to say to those who don't like the way their autistic workers think: Any employer who doesn't see a problem with discrimination on the basis of cognitive differences would be well advised to think twice about that.