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Among the hardest claims to prove under the Americans with Disabilities Act are those labeled “Regarded as.” In those claims, employees must show not only that an employer perceived them to be incapable of performing a particular job, but also incapable of performing a “broad range” of jobs. That having been said, “regarded as” claims are also difficult to defend because — much like retaliation claims — it is the employer’s motivation and belief at issue, rather than hard facts. The recent decision of the 2nd U.S. Circuit Court of Appeals in Adams v. Master Carvers of Jamestown, Ltd., illustrates the difficulties on both sides of a “regarded as” claim under the ADA. The case also highlights the peril to employers who have legitimate concerns about the ability of an employee to perform her job. HEART CONDITION KNOWN John Adams was hired as human resources coordinator by Master Carvers in April, 1999. Adams had a history of heart disease of which his immediate supervisor, the company’s CFO, was aware but which the CFO had concealed from Master Carvers’ president. The company’s president learned of Adams’ heart condition when he observed a scar on Adams’ chest during a business trip in June, 1999. The next month, Adams was hospitalized for diverticulitis. He was again hospitalized for colon surgery in August, 1999 and he convalesced until late September. During his convalescence, the company’s CEO told Adams “when you get back we have to sit down and discuss if you can physically do the job.” Unbeknownst to Adams, however, Master Carvers had already hired a potential replacement who, during his absence, had assumed Adams’ responsibilities and occupied his office. When Adams returned to work on Sept. 28, 1999, the CFO told him that he was terminated. He explained the termination had been based on “economic reasons” and on the fact that, after hiring the second human resource manager, the company was overstaffed at this position. COMPANY CLAIMS OTHER REASONS Adams brought suit under the ADA, claiming that he was regarded as disabled. Master Carvers argued initially that Adams could not establish such a claim as a matter of law. It also asserted that Adams was terminated for his unsatisfactory performance, the company’s financial difficulties, his lack of qualification to perform the position and based on having allegedly sexually harassed female employees. The U.S. District Court for the Western District of New York granted summary judgment to Master Carvers on the grounds that the company did not perceive him to have been significantly restricted in the ability to perform a broad class of jobs. The court found that Master Carvers perceived Adams’ condition accurately — that is, that he had missed approximately four weeks of work due to colon surgery. Because this short-term condition does not rise to the level of a “substantial limitation of a major life activity,” there can be no argument that Master Carvers perceived him any other way. In fact, the court noted that Master Carvers could have terminated Adams during the course of his leave and that it “showed Adams a courtesy by deferring his termination until he was healthy enough to return to work. Such deferral avoided kicking Adams when he was down …” The 2nd Circuit reversed the award of summary judgment. The Appellate Court initially noted that the lower court was correct in finding that, if Master Carvers had terminated Adams for his health-related leave of absence, “they could not have regarded him as being disabled within the meaning of the ADA because his absences did not constitute a substantial impairment.” The court found, however, that Adams had established facts that Master Carvers believed that he was incapable of working at all, not just that he was unable to work during his absences. Specifically, Adams presented evidence that a former employee had heard the CFO say that he did not think Adams was “healthy enough to work.” The president of Master Carvers was also heard to question whether Adams was a “health risk.” Despite, or perhaps because of, the ambiguity in these statements, the court found that Adams had created a genuine issue of fact as to whether he was perceived as being too unhealthy to work in broad class of jobs, not just in his human resources position. QUALIFIED, DESPITE ABSENCES The Appellate Court also held that Adams may have been a “qualified individual” to perform his job because his required temporary leave of absence could be considered a reasonable accommodation under the act. Furthermore, Master Carvers’ CFO testified that Adams was unable to perform his job until Sept. 27, 1999. The court read this statement as a demonstration that Adams was capable of performing his duties on the day he was terminated, Sept. 28. “The date that an adverse employment decision is made is the relevant date for determining whether an individual is qualified under the [ADA],” Adams was presumed to have been qualified on the date of his termination. The Appellate Court rejected Master Carvers’ non-discriminatory reasons as being belied by the facts and remanded the case to the District Court for trial. The difficulty in the case, from Master Carvers’ perspective, may not have been that it terminated Adams, but that it was not candid in its reason for doing so. Assuming that the company was genuinely frustrated with Adams having missed approximately 20 percent of his scheduled work days during a five month period, there is little reason that the company could not have said that his repeated absence from the workplace was unacceptable. Had Master Carvers taken this route, it would have eliminated any claim that Adams’ condition was misperceived. Rather, Master Carvers could have successfully argued that Adams was not disabled as a matter of law, as both the district and appellate courts recognized, and, therefore, was not entitled to any reasonable accommodation. By attempting to avoid the “disability” issue, Master Carvers created a “regarded as” claim that may, in the end, be far more problematic. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, ( www.postschell.com ). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected] . If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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