Under the Americans with Disability Act, as well as Chapter 4112 of Ohio Revised Code, an individual can bring a claim for disability discrimination based upon the allegation that the individual was discriminated against because of a “perceived” disability and not necessarily a recognized physical or mental impairment. Perceived disability cases can be complicated and confusing and they call into play different standards for the courts when evaluating claims. Typically, under Ohio law, a party who is seeking recovery for allegations of disability discrimination must demonstrate that:
1. he or she has a disability;
2. an adverse employment action was taken by their employer
(e.g., termination); and
3. the person can safely and substantially perform the essential functions of the
job in question even with his or her disability (with or without accommodation)
The burden then shifts to the employer to set forth a legitimate non-discriminatory reason for the action taken against the employee. If the employer does so, then the employee must demonstrate that the employer’s stated reason was a pretext for impermissible discrimination.
However, the burden of proof is modified when dealing with claims alleging discrimination because of a perceived disability. The employee must then show: (1) he/she was perceived as disabled; (2) he/she was terminated based on that perception; and lastly (3) that he/she could have performed the essential functions of the job despite that perception.
Confusion arises in these cases with regards to establishing the first prong. How does the employee establish that they were “perceived as disabled?” Many of the courts in Ohio had previously applied the federal standard. This required proof that the employer regarded or perceived the individual as “being substantially limited in a major life activity.” Again, it is hard to imagine an employer making such a determination at the time of termination of the employee, but this is the test under Federal law (ADA). One Ohio Court of Appeals recently pointed out, accurately, that Ohio’s statute differed in several important ways and that the federal test was not applicable to claims of discrimination based upon a perceived disability. Roghelia v. Hopedale Mining, LLC (2014 Ohio App. 7 Dist), 2014-Ohio-2935. Specifically, in Ohio, the perception of a disability does not need to be based upon an assumption of impairment of a major life activity.
In the Roghelia case, the plaintiff had been hired as a roofer for the defendant. He suffered an accident while at work resulting in an amputation of his left thumb. After his return to work, he was not allowed to continue to work as a roofer. Instead, he was given other odd jobs by his employer. The plaintiff, however, continued to suffer complications as a result of his original injury. He was absent on numerous occasions and claimed this was due to treatment he was receiving for his hand. At one point he had to take off several weeks for a second surgery. He, however, did not provide documentation that established the reason for all of his absences. He then received a letter advising him that due to his absenteeism, his employment with the defendant was terminated. Thereafter, he filed a complaint against his employer asserting that they had discriminated against him based upon a perceived disability. The matter went to a jury trial and following the plaintiff’s presentation, the employer moved for a directed verdict. The court granted the motion finding that the plaintiff had not established that he was disabled or that his employer had regarded him as disabled. Instead, the court found that the employer’s reference to the plaintiff’s absenteeism was a legitimate reason to terminate his employment.
The plaintiff then appealed to the Seventh District Court of Appeals. In reversing that decision, the Court found that the trial court had applied the wrong standard in reviewing the plaintiff’s perceived disability claim. The Court of Appeals reviewed the evidence and even though there appeared to be documentation supporting the employer’s actions in terminating the plaintiff for excessive absenteeism, there were also conflicting statements in the record. As a result, the Court felt that there was sufficient evidence so that reasonable minds could find that plaintiff’s absenteeism was a pretext. Again, Ohio’s law only requires proof that the employer had a perception that the individual was disabled. There was no requirement that the employer actually believe that the employee was unable to perform certain daily tasks. The Court never listed the evidence that established that the employer “perceived” the plaintiff as disabled. It only commented on the doubts raised about the employer’s stated reason for termination.
How a “perception” of a disability is established is somewhat unclear. An employer should always be careful to accurately document the reason(s) for termination and if an individual does have an illness or serious injury prior to their termination, the employer should be careful to avoid any reference to that injury or illness in their final determination of the employee’s status.