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Fifteen years after passage of the Americans With Disabilities Act (ADA), it is common knowledge that employers are required to make reasonable accommodations to the actual mental and physical limitations of their employees with disabilities. Less well known is that the ADA also protects people who are “regarded as,” or perceived to be, disabled. Must the employer, in such a case, accommodate the work-related limitations it perceives the employee to have but which do not actually exist? Is an employee who has an actual medical impairment but is not so limited as to be disabled as defined by the ADA entitled to a reasonable accommodation merely because her employer mistakenly believes she is? Courts are split on how to resolve the conundrums that arise when trying to apply the concept of “reasonable accommodation” to employees who are perceived to be disabled but who would not otherwise fit the statutory definition of disability. Under the ADA, “disability” means, first and foremost, having a physical or mental impairment that substantially limits one or more of the major life activities, but it also means being “regarded as” having such an impairment. Typically, an employee is “regarded as” disabled if he suffers some medical impairment (for example, a mental illness) and is mistakenly perceived by his employer as being substantially limited by it, or if he is erroneously perceived as having a substantially limiting impairment (for example, symptomatic AIDS) that he does not actually have. See Sutton v. United Air Lines, 527 U.S. 471 (1999). Congress sought to protect those ‘regarded as’ disabled By broadening the scope of ADA protection, Congress intended to remove attitudinal barriers to equal employment opportunity in the workplace faced by those who are not disabled, but are perceived as such to their detriment by their employers. Consequently, if an individual is fired from her job because her employer erroneously believes that she has a disabling condition that she does not have or denies her a promotion because the employer accurately believes her to have a medical condition that the employer falsely believes is substantially limiting, there is a clearly identifiable adverse employment action. The individual has been discriminated against because of the perceived disability, and the ADA violation raises no conceptual difficulty. But if the person “regarded as” disabled requests an accommodation so that he can continue to work but in some different role or capacity, it might well be asked why the employer should be required to comply. After all, others with equally severe impairments but no comparable misperception would have no ADA right to an accommodation. In Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232 (9th Cir.), cert. denied, 540 U.S. 1049 (2003), for example, Frederick Kaplan, a peace officer for the city of North Las Vegas, Nev., suffered a hand injury and was misdiagnosed with rheumatoid arthritis. During his rehabilitation, he was reassigned to a civilian light-duty position. Afterward, his doctor gave him a full-duty release with the exception of gun handling. Sometime later, his supervisor asked him to try to qualify at the pistol range for firearm handling (that would, presumably, lead to a regular assignment). But he refused, citing a department rule that barred employees from qualifying on the pistol range unless they were fully released by a doctor. Just six days later, Kaplan was examined by a city doctor, who concluded that his injury (which prevented him from holding or shooting a gun or grasping and detaining suspects) rendered him unable to perform the essential functions of his job and, incorrectly believing him to be suffering from rheumatoid arthritis, concluded that this incapacity was permanent. Based on this assessment, he was terminated. Two years later, however, he fully recovered from his injury. When the city refused reinstatement to his old job, he sued. Refusing to be limited by “a formalistic reading of the ADA,” which makes no distinction between actual and perceived disability in its discussion of “reasonable accommodation,” the 9th U.S. Circuit Court of Appeals rejected the idea of providing reasonable accommodation to employees “regarded as” disabled because it would lead to the “perverse and troubling” consequence that impaired employees “would be better off” under the ADA if their employer erroneously treated them as disabled. It also observed that affording reasonable accommodation to such employees would “do nothing to encourage those employees to educate employers of their capabilities, and do nothing to encourage employers to see their employees’ talents clearly; instead it would improvidently provide those employees a windfall if they perpetuated their employers’ misperception of a disability.” 323 F.3d at 1232. A markedly different approach was taken recently in Williams v. Philadelphia Housing Authority Police Dep’t, 380 F.3d 751 (3d Cir. 2004), where the 3d Circuit ruled that an employer was required to accommodate an employee with a perceived mental disability. Edward Williams, a police officer for the Philadelphia Housing Authority, was suspended after he threatened his superior officer. When the Housing Authority later learned that Williams talked of “smoking people, going postal, and having the means to do it,” it ordered him to be examined by its psychologist, who diagnosed him with “major depression” and recommended that he not carry a weapon for at least three months, but cleared him for working in an administrative or clerical capacity. As an accommodation, Williams requested two transfers-either to the training unit or to the radio room-neither of which required the use of a firearm. But the authority denied both requests because it wrongly perceived him as being restricted from any access to firearms and even from being around others carrying firearms, when he was only restricted from carrying a firearm. Without a temporary assignment, he exhausted his available leave time, and his employment was terminated on that basis. In concluding that Williams did, in fact, have an ADA-protected right to a reasonable accommodation, the court relied heavily on the legislative history of the ADA. The “regarded as” prong was adopted, the court said, because “the reaction of others” to individuals with medical impairments that were not themselves substantially limiting could “prove just as disabling” as an actual disability, and it served to protect individuals who suffered adverse employment actions due to “the myths, fears and stereotypes associated with disabilities.” 380 F.3d at 774. The court also emphasized that “but for [the employer's] erroneous perception that Williams was unable to be around firearms because of his mental impairment, [he] would have been eligible for” a reassignment that would have obviated his discharge. Id. The court rejected the argument that if Williams is entitled to reassignment by virtue of his merely perceived disability, he receives a “windfall” as compared to a similarly situated co-worker who, not being “regarded as” disabled, has no ADA accommodation right. The court reasoned that since Williams was denied a reassignment “solely based on [his employer's] erroneous perception,” he was, in fact, worse off than an employee who is not perceived as having that additional limitation and, consequently, receives the transfer. As the court put it, “[t]he employee whose limitations are perceived accurately gets to work, while Williams is sent home unpaid.” Id. at 775. Restoring Williams to where he would have been but for his employer’s misperception is not a windfall. When to accommodate those ‘regarded as’ disabled Those courts that would afford reasonable accommodation to those “regarded as” disabled seem more in keeping with the ADA, and not just formalistically so. If a worker with medically controlled depression or cancer in remission is erroneously perceived to be unable to handle the stress of her regular job or if the worker with medically controlled epilepsy is mistakenly perceived to be a risk to himself and co-workers, then obligating the employer whose misperception causes the employment disruption to make a reasonable accommodation-such as job restructuring, position reassignment or an extended leave of absence-protects the affected employee from ungrounded “fears, myths and stereotypes,” as Congress intended. In most cases, if the perceived limitation was truly mistaken, the employee, though having a medical impairment, would be qualified for the position, and a question of reasonable accommodation would never arise. It would rather be a straightforward case of disparate treatment against a qualified person with a (perceived) disability. But there are the unusual cases, like Williams, where the individual is truly limited with respect to his current job, but could benefit from an accommodation that was denied due to a misperception as to the precise scope of the limitations. It would be ironic to say that the displaced worker would have to prove the accuracy of the employer’s misperception (“yes, it’s true, people with depression really cannot handle stress”) to qualify for an ADA-required accommodation. As long as courts do not equate a perceived inability to perform a job with a perceived disability, there is little risk of “windfall” results in those few cases in which an accommodation would be properly required for someone “regarded as” disabled. Michael Starr ([email protected]) is a partner in the labor and employment group in the New York office of Washington-based Hogan & Hartson. Megumi Sakae ([email protected]) is an associate in that group, also in New York.

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