IDOT Worker Resuscitates
“Regarded as” Claim under ADA
Supervisors’ Perception that his
Fear of Heights After Panic Attack
Made Him Substantially Restricted
Cost of good faith overreacting?
An employee has a panic attack while on a bridge beam changing a light bulb. According to Darrell Miller, a former highway worker with the Illinois Department of Transportation, his supervisors erroneously concluded that he therefore was unable to perform the essential functions of his job. He was put on disability leave and while away for a year submitted reports from two psychiatrists that he needed only a minor accommodation for acrophobia, and could return to work. He finally returned to work, then, he claims, he was fired in retaliation for trying to make official what had been a practice all along – permitting two employees to swap tasks, a practice Miller claimed had been permitted for years.
Recently the Seventh Circuit Court of Appeals reversed summary judgment entered in favor of IDOT, deciding that Miller had enough evidence in dispute over the task-swapping and an over-reaction by IDOT supervision to his panic attack. His claim that supervision regarded him as disabled could go to trial. Darrell Lynn Miller v. Illinois Department of Transportation, __F3rd__, No. 09-3143 (7th Cir. 2011).
In a “regarded as” case a plaintiff “must present evidence from which it could be inferred that the employer regarded him as facing restrictions that would be significant enough to restrict his ability to meet the requirements of a substantial class of other jobs, beyond his current job” the court stated. It called this standard “demanding.”
We can re-phrase this standard: Miller would have to get facts in front of a jury implying that IDOT perceived his acrophobia as such a restriction that he could not perform the essential functions of a large number of other jobs beyond his own.
This is where the “regarded as” cases can get confusing to managers. Miller’s contention was that IDOT supervision had known for years that he could not work in high, exposed locations, and that they frequently permitted him to trade jobs with co-workers. That is, he in fact did have a disability, undiagnosed, and IDOT worked around it. Then, when IDOT learned of his formal diagnosis of acrophobia, it overreacted, keeping him off bridge crew work, even work on the ground.
IDOT’s error, if his allegations are facts, was to conclude that someone with diagnosed acrophobia could not work his job, period, because of the risk his condition could pose to himself and others. Apparently the employer was intimidated by the scenario of him sustaining a serious injury to himself or others while having a panic attack twenty-five feet above the ground in an exposed location. So IDOT could be found guilty of regarding his disability as substantially restrictive, which is not the same as regarding him as disabled.
What if there had been no job-swapping, as he contended? If you have an employee who is disabled – much easier to prove under the ADA post-amendment – you can get in trouble in the “regarded as” territory if you give short shrift to his requests to consider job-swapping.
Cases like this can give managers the major willies, especially when this branch of the law is jazzed up by the EEOC with its final regulations, recently published. Under the regulations, an individual will be “regarded as” disabled if he or she is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion or termination) because of an actual or perceived impairment, whether or not the impairment limits - or is perceived to limit - a major life activity.
Thus an individual is covered by the ADA even if he cannot show that the employer perceived him to be substantially limited in a major life activity, so long as he can show that the employer took action against him because of an actual or perceived physical or mental impairment. The regulations provide that an employer may defend against a claim that an employee was “regarded as disabled” by showing that “the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) ‘transitory and minor.”’ Transitory is defined as “lasting or expected to last six months or less.”
In Miller’s case, the acrophobia was not “transitory.” But a bone fracture that healed in a few months would be.