A blog for employment lawyers, human resources professionals, and union representatives.
September 03, 2005
Does "regarded as" disabled employee get accommodation?
If an employee is not actually disabled, but is "regarded as" disabled, the ADA defines that employee as disabled. And the big question is whether such an employee has a right to a reasonable accommodation.
Circuit courts are split on this fundamental question under the Americans with Disabilities Act (ADA).
- Holding no right to an accommodation: 5th, 6th, 8th, and 9th Circuits.
- Holding there is a right to an accommodation: 3rd, 10th, 11th, and (perhaps) 1st.
Two recent cases that have answered "Yes" are worth reading:
- D'Angelo v. Conagra Foods (11th Cir 08/30/2005)
- Kelly v. Metallics West (10th Cir 06/07/2005)
My view: I used to think it was odd that a court would require an employer to reasonably accommodate an employee who was not in fact disabled. But the recent cases have got me persuaded for two reasons.
- The text of the ADA does not support treating "regarded as" disabled employees differently than actually disabled employees.
- An employer that has stereotypical views of an employee's abilities is placing artificial limitations on the employee, and should be prepared to accommodate those limitations.
- The President will recess appoint Peter C. Schaumber as a Member of the National Labor Relations Board for a term that expires in August 2010, according to a White House press release.
- Schaumber's regular term expired August 27, leaving only two Members on a five-Member Board.
- Earlier, the NLRB announced that it would continue deciding cases even with only two Members.
- Labor Law Blog has a good commentary on Shaumer's voting record.
Posted September 03, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
September 01, 2005
Schaumber gets NLRB recess appointment
Thanks to Labor Law Blog for the tip.
Posted September 01, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
