For the last year, you have worked from home, as have all the employees at your job. Your employer has now required that all employees come back to the office. You are happy and eager to do so. In the meantime, however, you have been diagnosed with cancer, which is now finally controlled and in remission. Perhaps instead, you became pregnant. Rather than welcome you back to the office, your boss fires you. You are not disabled and have not asked for accommodations, but you experience discrimination as if you were. Frankly, from your employer’s point of view, you have become a bit of a burden. What now?

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If you have questions about discrimination at work, even if you are not disabled, reach out to us. Click on this link to find out about our workplace discrimination and our pregnancy discrimination law practice. Use this link Contact Kilgore Law to get the conversation started. We offer no cost case evaluations.

The Law in Texas Regarding Workplace Disability Discrimination

Texas Labor Code Chapter 21 and the Americans with Disabilities Act (ADA) prohibit employers from discrimination against applicants or employees with disabilities in job application, procedures, conditions, and privileges of employment. Chapter 21 applies to private employers with 15 or more employees, and to all state government and local government entities no matter how many employees they have.

To be clear, disability discrimination may occur when an employee is terminated, suspended, denied training, denied promotion, or anything else that negatively affects the terms and conditions of employment because the employee is disabled or needs a reasonable accommodation. Disability discrimination can also occur in the job application process. For example, an employer cannot refuse to hire an applicant simply because the employee is disabled or is regarded as having a disability. Similarly, an employer may not be able to withdraw a job offer on learning that a prospective employee is pregnant.

The law places strict guidelines around an employer’s ability to ask about disabilities during the hiring process. In most cases, an employer cannot ask about an employee’s medical condition or disability as a contingency on making a job offer. An employer can only ask whether the employee can perform the job with or without reasonable accommodations. Someone may bring a lawsuit under the Texas Labor Code and the ADA if he or she has been discriminated against due to:

• a physical or mental disability that substantially limits one or more major life activities;
• a record of having a disability; or
• is regarded as having a disability.

Discrimination Occurs When a Worker is Mistakenly Believed to Have a Disability

Under the Americans with Disabilities Amendments Act of 2008 (ADAAA), the rules surrounding the third of these fundamental requirements, often referred to as the regarded as or perceived as prong, are a little different than they are for other situations.

Ordinarily, to succeed in a workplace disability discrimination case, claimants must first show that they have a condition that limits their ability to perform a major life activity. Thereafter, the inquiry is about whether they are qualified and able to do the job with reasonable accommodations, whether the accommodations will cause undue hardship to the employer, and whether the employer engaged them in an interactive process to answer these questions.

In regarded as cases, an employee may allege discrimination without having to show that she is limited in a major life activity. However, regarded as claims are subject to two important limits. First, someone with an impairment that is transitory, and minor will not qualify as regarded as having a disability. That is presumably what sick leave is for. Secondly, an employer need not offer reasonable accommodations. In the imaginary scenario proposed at the outset, it is important that the employee did not claim to have a disability and was willing to return to the office.

Recent Regarded as Situations That Resulted in Discrimination Lawsuits with Favorable Court Decisions

Several cases shed light on how these claims work. In early 2021, for example, Pirtek USA LLC, a fluid power system company based in Florida agreed to pay $85,000 and furnish other relief to settle a perceived disability discrimination lawsuit filed by the EEOC. In late 2015, the employee was hospitalized for several weeks with pancreatitis, acute respiratory distress syndrome, and pneumonia. In March 2016, the employee’s physician cleared him to return to work without restrictions. Nevertheless, Pirtek fired him, claiming that he was a liability and that it was afraid he would be injured on the job.

“Too often employers rely upon unfounded assumptions about an employee’s ability to do his job, rather than the results of a medical examination,” said Robert Weisberg, regional attorney for the Miami District EEOC Office. In addition to the $85,000 in monetary relief, the three-year consent decree settling the lawsuit required Pirtek to develop and distribute a written policy against disability discrimination and to conduct anti-discrimination training for management and human resources personnel.

Another case, Cannon v. Jacob Field Servs. N. AM., Inc. serves as an example of the way perceived disability cases that do not settle may proceed through the court system. The Fifth Circuit, without resolving an underlying discrimination claim, ultimately held that a job applicant whose condition did not qualify as a disability could claim that he had been discriminated against based on a perceived disability. Jacobs Field Services (JFS), a construction company, offered Michael Cannon a job as a field engineer at a Colorado mine site. It revoked the offer shortly after learning that Cannon had a rotator cuff impairment that prevented him from lifting his right arm above the shoulder.

Cannon filed a complaint with the EEOC, which ultimately concluded that JFS engaged in disability discrimination because, among other things, it had failed to engage with Cannon in an interactive process that would have allowed further fact finding about his injury and any job limitations. The EEOC, on Cannon’s behalf, filed suit in the District Court. The District Court granted summary judgment in favor of JFS, holding that Cannon’s rotator cuff injury was not a disability under the ADA. It also found that even if he were disabled, he was not qualified for the job because of his movement limitations. The District Court never reached Cannon’s claim that JFS had failed to grant him reasonable accommodations.

The Fifth Circuit reversed the District Court, holding that internal communications at JFS supported a finding that the construction company viewed his shoulder injury as a disability, however erroneously, under the terms of the law. Cannon was therefore permitted to claim that he had experience discrimination in the job application process because he was regarded as having a disability. The Fifth Circuit remanded the case to the District Court for further proceedings.

What About COVID-19 Implications?

That is the looming question. The pandemic and work from home arrangements have scrambled the employment landscape in ways that are still to be fully understood. Some employees will be reluctant to give up the benefits of work from home arrangements; employers may re-think the need for large and expensive office space. The issue of workplace accommodations seems to have taken on a life separate from disability discrimination law. Employment lawyers with extensive experience may be better positioned to represent employees creatively in this rapidly changing situation.

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Our Texas employment lawyers have years of far-ranging experience with employment disputes, including disability and other discrimination claims. Use this link to reach us Contact Us with your questions and concerns.