Tuesday, 14 May 2013 09:15
By Gina Helou
The purpose behind the American with Disabilities Act 2009 Amendments Act (ADAAA) was to make it less difficult for applicable employees to establish that they have a “disability.” The term “disability” is defined in the ADA as a physical or mental impairment that substantially limits any major life activity. An employee claiming such a disability must show proof of the impairment in his/her everyday life and how the impairment has restricts the employee’s life and daily activities.
Under the ADAAA, there are several listed disabilities an employee may have that does not require this proof, however, such as cancer, blindness or deafness, among others. Employees suffering from these impairments have the right to certain employment accommodations to allow them to become and remain employed. But what happens when the employee is in remission? Does the employee have to be legally certified as blind? What if the employee is only partially deaf? In a recent case out of the Eastern District Court in Pennsylvania, the court found a terminated, partially deaf employee’s disability claim did not satisfy the definition of a “disability” under the amended statute, but not specifically because of her impairment – the decision was more based on her lack of proof.
In 1999, a newspaper company hired a female, who over her tenure received promotions within the company. In late 2007, the female employee underwent surgery to remove a brain tumor that resulted in total deafness in one ear. She was still able to perform her job functions, however, but she had trouble balancing and concentrating. Her supervisors were aware of the impairment and the issues it now caused her. She continued to receive several satisfactory evaluations, the last one being a very short time after the incident, in early 2008.
Almost a year after that evaluation, at the beginning of 2009, the newspaper performed a reduction in workforce. To decide which employees would be laid-off, the company conducted evaluations based on a points system where employees were rated on their work quality, work productivity, versatility, teamwork skills, disciplinary record, performance evaluations and tenure. Lowest scoring employees would be let-go. The partially deaf employee scored the lowest in her department by 11 points, and was listed to be laid-off along with the next two lowest scoring employees in her department.
Prior to her evaluation rating, the employee complained about a co-worker calling her a “tar baby.” She was then evaluated in March, 2009. After receiving her evaluation, she told her supervisor that she felt a third-party, outside the company, should investigate the comment made to her. On April 20, 2009, among other charges, she filed a disability charge with the Equal Employment Opportunity Commission (EEOC). Ten days later, the company executed its reduction-in-workforce based on the rating evaluations and the partially deaf employee was terminated.
To succeed in a disability discrimination lawsuit, the employee had to show that her partial deafness 1) was a disability within the meaning of the ADA, 2) that she was qualified for her position, and 3) that the newspaper company took an adverse employment action (i.e. her termination) against her because she was partially deaf. At trial, the employee stated she was still able to hear but had difficulty in noisy environments, like in the newsroom. The court did not view this as a substantial limitation, and the employee did not provide any evidence, medical or otherwise, of any other limitations. Furthermore, the court found the employee’s claim of an adverse employment action due to being laid-off failed because her impairment occurred almost two years before she was terminated. Without additional evidence from the employee, there was not enough information to find a causal link between the impairment and the termination.
However, the court did find that the rating evaluations, resulting in several lay-offs, including others within the partially deaf employee’s department, did constitute a legitimate, nondiscriminatory reason for terminating the employee. The court stated that although the employee’s previous evaluations were satisfactory, it was not persuaded, as “courts generally do not second-guess the wisdom of a business' performance evaluations and ratings of its employees.” Based on these reasons, the court ruled in favor of the employer, dismissing the employee’s disability discrimination claim.
This decision is persuasive at best, because the court did not provide a definitive ruling that partial deafness is not a disability under the ADA. Perhaps additional evidence, such as an expert opinion explaining the extent of her limitations due to being partially deaf, would have satisfied the court’s definition of what constitutes a substantial limitation. Employers should not lean on this holding as a safety net as to whether they are required to accommodate partially deaf employees, but instead notice the growing list of what could be considered a disability within the definition of the ADA and ADAAA.
Lawsuits stemming from EEOC discrimination charges may have gone down since 2011, but with the EEOC’s new strategic enforcement plan – placing an emphasis on disability discrimination - employers should expect more scrutiny of their employment practices in the near future. In some cases, employers had as much as two years of reporting requirements after simply being placed on the EEOC’s radar.
Read the case here.