Employees Who Are Not Disabled: Reasonably Accommodating “Regarded As” Disabilities
Does an employer have to accommodate an employee disability that does not exist? Apparently so in a number of states, including Florida, Alabama and Georgia. In D’Angelo v. ConAgra Foods, Inc., the United States Court of Appeals for the Eleventh Circuit held in a lengthy opinion that the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to workers who are not actually disabled but only “regarded as” disabled by their employers. The 11th Circuit thus joins other federal appellate courts in concluding that such reasonable accommodations are required by law. Since D’Angelo imposes additional ADA obligations on employers, it is important to understand its holding and implications.
Cris D’Angelo was diagnosed with vertigo before she began working at a ConAgra seafood plant in Tampa, Florida. She worked in various factory jobs for almost three years without incident or injury and, during that period, received two promotions. Shortly before her discharge, D’Angelo complained to a non-supervisor line leader that looking at a moving conveyor belt (a task that she had not previously performed) made her light-headed, “off balance” and nauseous. The leader gave her a different job assignment. However, the supervisor subsequently returned D’Angelo to the conveyor belt and demanded medical documentation of her condition. D’Angelo’s doctor’s note said that she “has a vertigo condition. This affects her when her eyes have to look at moving objects such as belts. She should avoid the situation since it could cause her to fall and sustain injury.” ConAgra considered the doctor’s opinion and then concluded that, in light of the numerous moving conveyors and mechanical equipment in the factory, D’Angelo posed a safety hazard to herself and others. She was discharged.
D’Angelo filed a charge of disability discrimination and, subsequently, a federal court lawsuit alleging ConAgra violated the ADA in discharging her rather than reasonably accommodating her vertigo by exempting her from work on the conveyor belt. D’Angelo contended that she not only was actually disabled, but also “regarded as” disabled by ConAgra because of its erroneous beliefs about her condition, In other words, ConAgra had treated her as disabled even though she was not disabled within the meaning of the ADA. ConAgra moved for summary judgment. The district court granted the motion, finding that D’Angelo was not actually disabled and that the ADA does not require employers to reasonably accommodate workers who merely are “regarded as” but not actually disabled.
D’Angelo appealed the district court’s ruling. In a decision announced on August 30, 2005, a three-judge panel of the 11th Circuit, in a 2-1 decision, affirmed the district court’s finding that D’Angelo was not actually disabled (because there was no evidence that her vertigo substantially limited one or more of her major life activities or restricted her ability to perform a broad range of jobs). However, the appeals court majority held that the remaining issues would have to be sent back to the lower court for a jury trial because there were disputed issues of fact whether D’Angelo was “regarded as” disabled by ConAgra and whether she was a “qualified individual with a disability” within the meaning of the ADA.
Significantly, the 11th Circuit’s D’Angelo majority also concluded that the district court erred in holding that the ADA did not require reasonable accommodations for employees only “regarded as” disabled by their employers. It reasoned that because the ADA requires reasonable accommodation for all “disabled” employees, and defines disabled employees to include those merely “regarded as” disabled, employers must reasonably accommodate employees “regarded as” disabled.
The D’Angelo majority opinion considered the contrary conclusions of other federal appellate courts, which had held that, in essence, it would be unwise for Congress to have written the ADA to require reasonable accommodation for employees only “regarded as” disabled; the 11th Circuit concluded “quite simply, we are without authority to pass judgment on the wisdom of a congressional enactment.” It further rejected another argument that had been accepted by several appellate courts, that is, requiring reasonable accommodation for “regarded as” employees sometimes will entitle an employee with a particular impairment to an accommodation while not entitling another with the same impairment to the same accommodation because of the employer’s differing perceptions of the two workers. The 11th Circuit majority concluded that such disparity could be justified because, in fact, the two individuals were not similarly situated – the employee “regarded as” disabled will have suffered some wrongful adverse action that the other employee has not suffered, i.e., the employee whose limitations are accurately perceived by the employer gets to work while the employee subject to the discriminatory perception is sent home unpaid. (The strong dissenting opinion in D’Angelo did not address the accommodation issue, holding only that the evidence did not substantiate that D’Angelo was either actually or “regarded as” disabled.)
The 11th Circuit’s D’Angelo ruling initially seems counterintuitive in the real world: why or how should an employer accommodate a disability that does not exist? However, the decision makes sense in light of a primary motivation for enactment of the ADA: to ensure that erroneous stereotypes and beliefs about disabilities – and capabilities – do not negatively affect opportunities of otherwise qualified applicants and employees to obtain and retain employment.
The ultimate message from D’Angelo seems to be that, if employers believe, even inaccurately, that a worker is disabled, they must act consistent with that belief and in accord with the ADA by providing reasonable accommodation. Insistence on an erroneous perception that the worker is disabled, coupled with a failure to discuss accommodation, can constitute, at least in the view of several federal courts, an ADA “failure to reasonably accommodate.” As the federal appellate court in Colorado recently noted, “an employer who was unable or unwilling to shed his or her stereotypical assumptions based on faulty or prejudiced perception of an employee’s abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions. In this sense, the ADA encourages employers to become more enlightened about their employees’ capabilities, while protecting employees from employers whose attitudes remain mired in prejudice.” Kelly v. Metallic West, Inc., 410 F.3d 670 (10th Cir. June 7, 2005).
D’Angelo strongly suggests that employers be very careful in making decisions about employees they suspect to be medically or psychologically impaired. If the employer believes that a worker is disabled and is preparing to act on that suspicion by taking adverse employment action against the employee, the employer first must consider and be ready to provide reasonable accommodation consistent with the suspected disability. For example, if an employer believes that a worker’s back injury is too severe to allow him to continue working a job normally performed while standing, D’Angelo requires the employer to consider reasonable accommodation for the worker, e.g., whether the job could be performed while seated, whether the job’s duties can be restructured to allow it to be performed with a disabling bad back, etc. It thus appears that D’Angelo will result in impaired employees receiving better treatment under the ADA if their employers treat them as disabled even if they are not disabled.
Employers can avoid having to provide reasonable accommodations for employees who are not actually disabled by avoiding erroneous conclusions. If the employer first engages an impaired employee in an interactive process to determine the actual extent of his or her limitations, the employer can accurately assess (using medical professional advice as appropriate) whether the worker is disabled and whether accommodation is factually and legally necessary. Further, even if the employer and the employee never agree about his or her limitations, it may be possible to identify inexpensive reasonable accommodations that will allow the employee to perform the essential functions of the job (and avoid another D’Angelo lawsuit).
The D’Angelo decision conflicts with other carefully considered opinions of the federal courts. Some courts have been reluctant to require reasonable accommodation to a “regarded as” disabled employee because to do so would provide disincentives for impaired workers to educate employers about their capabilities, discourage employers from clearly assessing employees’ talents and provide “regarded as” workers a windfall by perpetuating employers’ misperception of their impairments. Further, in the view of other courts denying reasonable accommodation for workers only “regarded as” disabled, such accommodations would compel employers to waste resources unnecessarily, resources that could be better spent assisting persons who are actually disabled and genuinely in need of accommodation. However, until the views of those courts are adopted by the United States Supreme Court, many employers will be bound by D’Angelo.
It is now common for ADA plaintiffs to allege both actual and “regarded as” disabilities, so D’Angelo and similar decisions in the federal Third and 10th Circuits impose additional ADA liability on employers. Although the federal appellate courts for the Fifth, Sixth, Eighth and Ninth Circuits have come to contrary conclusions about the need to accommodate workers only “regarded as” disabled, the United States Supreme Court recently refused to resolve those conflicting decisions and, thus, there is no immediate relief in sight for companies having operations in several states. In the interim, employers must carefully assess and accommodate workers who they “regard as” disabled.