Although the Americans with Disabilities Act (ADA) was enacted 1991, as an employment discrimination attorney I continue to see employees suffer discrimination on the basis of a disability. Sometimes discrimination is based upon a disability cured or treated and no longer presents an issue for the employee. Under the ADA and the Texas Labor Code’s prohibition on disability discrimination, an employee may not suffer discrimination because he or she has a record of a disability. Employers discriminate against workers with a history of a disability. Let’s explore the ADA and Texas Labor Code provisions that prohibit this form of disability discrimination and some of the remedies available if you are a victim of this type of discrimination.
An example of disability discrimination
First let’s set up an example to work through because this rule can be murky on its own. Let’s say we have an employee in Fort Worth named Zeke. Zeke works in an office where he spends most of his day sitting. As part of the job he routinely takes small stacks of files to other departments. Zeke had a physical impairment in one of his legs that required him to use a cane. Before going to work at XYZ Corp. in Fort Worth he underwent surgery to remove the impairment. Now Zeke can walk, run and salsa dance with the best of us.
One day he mentions to his boss that he needs the day off for an appointment with his doctor to review the surgery. Zeke and his boss talk a little about Zeke’s former condition. Zeke gets his day off and his leg is completely fine. Zeke’s boss, Abe, thinks about what Zeke told him and starts to worry about Zeke taking files to other departments. When Zeke returns Abe takes away some of Zeke’s responsibilities although Zeke has never had a problem walking at work. Abe begins giving Zeke lower performance ratings because another employee is doing part of Zeke’s job.
Is this disability discrimination? Yes.
Let’s identify the easy issue here about the discriminatory acts. Here Abe took two adverse employment actions against Zeke: (1) removing job responsibilities; and (2) giving Zeke negative performance reviews. To prove a claim for employment discrimination the employee must show the employer engaged in an adverse employment action motivated by an unlawful form of discrimination. Changing the conditions of the job and negatively rating an employee are both adverse employment actions. They may not directly affect Zeke’s pay or job opportunities. Indirectly both will have negative effects on Zeke’s career and income. The adverse employment actions are obvious here so we can turn and talk about the discriminatory motive, a far more complicated issue.
Under the ADA and Texas Labor Code it is unlawful to take an adverse employment action against an employee on the basis of a disability, including the record of an impairment. The Texas Labor Code and ADA closely mirror each other so let’s just look at the ADA language. The ADA prohibits discrimination against a “qualified individual with a disability”.
The phrase “qualified individual with a disability” under the ADA bears an extremely precise and detailed meaning. It’s not necessary to unpack all of that in this post. We just need the “disability” part of that phrase. Under the ADA a disability is a mental or physical impairment that substantially limits one or more major life activity, a record of such impairment, or regarded as having such an impairment. The “record of” prong is where Zeke fits in our example.
“Record of” disability discrimination
The “record of” prong of the ADA prohibits an adverse employment action based upon an impairment that used to exist or continues to exist but no longer meets the ADA’s definition of a disability. This prong can capture a wide range of conditions. Many impairments covered by the ADA may be completely treated, such as cancer and other long term diseases, and once cured are no longer an impairment or the cause of other impairments. Some impairments receive treatment to the point they no longer substantially affect one or more major life activity. This includes mental disorders like alcoholism and anxiety disorders treated by pharmaceutical or non-pharmaceutical means but not eliminated. It can also include physical conditions, like Zeke’s, that are resolved by surgical implants but would reemerge as a disability if the implant were removed.
The employee must also prove a record of the impairment exists. Typically where there was an impairment and the impairment was treated or cured there will be a file in existence from a physician, therapist, or other treating professional that documents the impairment. This is usually an easy part of this claim. The employer does not need to have access to this file or any official documentation of the impairment. Naturally the employer has to learn of the prior impairment to use it as motivation to discriminate against a worker. That knowledge could come from something as simple as a casual conversation between employee and supervisor.
Connection between discriminatory motive and adverse employment action
The last piece is that he must show a connection between the discriminatory motive and adverse employment actions. This is what the courts call a “nexus” between the two. Here it is probably easy to show Abe took away job responsibilities closely attached to Zeke’s need to walk around. Abe likely noted the lack of performing these duties on the performance reviews. In other cases the nexus is not so easy to prove.
An employee who suffers an adverse employment action due to a former impairment is entitled to the same remedies as an employee or applicant with an existing disability. Under the ADA and Texas Labor Code the employee can recover lost wages, attorney’s fees and compensatory damages. To pursue a claim for disability discrimination the employee must act quickly to file an administrative complaint. The language of the administrative complaint can affect the opportunities to pursue claims in court. It is best to work with an employment attorney before filing the complaint.