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In Williams v. Philadelphia Housing Authority, a panel of the 3rd U.S. Circuit Court of Appeals has finally addressed squarely the question of whether an employee who is “regarded as” disabled under the Americans with Disabilities Act is entitled to an accommodation as a matter of law. While recognizing that the situation may lead to “bizarre results,” the court held that the act requires such accommodations to be made. Edward Williams was a long-term police officer for the Philadelphia Housing Authority (PHA) when he threatened his supervisor while being reprimanded for inappropriate behavior in May 1995. Williams was suspended and later that evening told his psychologist that he understood “why people go postal.” Williams then began a series of medical leaves of absence. In October, PHA’s psychologist opined that Williams was capable of working but should not carry a weapon for a minimum of three months. Based upon this recommendation, Williams made a series of requests for reassignment to positions where he would not be required to carry a weapon. PHA denied these requests on the grounds that Williams was unable to have access to firearms and to be around others carrying firearms. This restriction, however, went beyond those imposed by his psychologist. Importantly, PHA admitted that there were a number of positions that would have been available to Williams had his restrictions been properly understood and applied. Ultimately, Williams exhausted all of his available leaves of absence and his employment was terminated. Williams brought suit under the ADA, claiming that he was actually disabled and that he was “regarded as” being disabled. The district court granted summary judgment in favor of PHA on all of Williams’ claims, and he appealed. ACTUAL DISABILITY The 3rd Circuit began its consideration of Williams’ appeal by addressing his claim that he was actually disabled under the ADA. While the court agreed that Williams was not precluded from a “broad range of jobs” under the act, it found there to be an issue of fact as to whether he was precluded from “a class of jobs.” Significantly, the court found that “even if one has the ability to perform a broad range of jobs [as did Williams], one is nevertheless disabled if one is significantly restricted in one’s ability to perform most of the jobs in one’s geographical area that utilize training, knowledge, skills and abilities similar to the job one has been disqualified from performing.” By considering the “class” of jobs as being those in law enforcement, the court accepted Williams’ argument that his inability to carry a firearm precluded him from serving in most jobs in this class. PHA also raised the argument that Williams was only precluded from carrying a firearm for a period of three months and, as such, has a “transient, nonpermanent condition” that was not substantial enough to qualify as a disability. The court reviewed the record and found that Williams was to be re-evaluated after three months and that it was possible, therefore, that his condition would last far longer. Furthermore, while Williams was specifically precluded from carrying a firearm for what may have been a limited period, his underlying condition of “major depressive disorder” was of far-longer duration. The court then turned to Williams’ claim that he was “regarded as” disabled under the ADA. Williams argued that PHA regarded him as having a limitation (the inability to have access to or be around others carrying firearms) far greater than the actual limitation (the inability to carry a firearm). As noted, this was significant, inasmuch as the inability to be around persons carrying firearms barred Williams from reassignment (which, under the ADA, can be a reasonable accommodation). The court rejected PHA’s argument that Williams was not a “qualified individual” under the act based on its contention that there were no vacant positions that he could have performed if he had been disabled as considered by PHA. The court recognized that PHA’s argument would have rendered the ADA “meaningless,” as an employer could simply regard an employee as incapable of performing any work and then claim that the employee was not “otherwise qualified.” The court then stepped up to the issue of whether Williams would have been entitled to a reasonable accommodation based on PHA’s misperception of his condition. Initially, the court recognized that there is a split among the circuit courts on this issue. Both the 9th and 8th circuits have held specifically that no accommodation is required, while the 8th and 5th circuits have held (without discussion) that no accommodation is necessary. Only the 1st Circuit, in Katz v. City Medal Co., has held to the contrary. The Williams court based its decision on a plain reading of the statute. That is, it is clear that the act defines “disability” as including someone who is “regarded as having an impairment.” The ADA does not in any way distinguish between “actually disabled” and “regarded as” individuals in requiring accommodation. In this light, the court recognized that “but for PHA’s erroneous perception that Williams was unable to be around firearms because of his mental impairment, Williams would have been eligible for a [reassignment].” LESS THAN IT SEEMS While the court clearly intended its decision to be definitive, the decision may be less than it initially appears. Initially, like Katz, Williams was also actually disabled and, therefore, entitled to accommodation even without his “regarded as” claims. This is a critical distinction, as all PHA did was misperceive the extent of Williams’ disability, not that he had a disability. The court seemed to recognize this distinction by discussing a hypothetical supermarket that misperceives that a cashier’s back condition prohibits her from standing at the cash register when, in fact, she has no such condition. If the supermarket were to deny the cashier a stool because of its erroneous misperception, the court suggested that this “might” violate the ADA. It should be noted that the court cited no case law in support of this suggestion. Instead, this appears to be the type of “bizarre result” that the court’s literal reading of the ADA would produce. Under the court’s hypothetical, the employee’s actual condition would not mandate that an accommodation be provided. Nevertheless, because the employer believed the condition to be worse than it actually was, the employer might be required to accommodate the cashier even though, under any other circumstance, she would not be entitled to such an accommodation. The argument becomes somewhat circular and, in a footnote, the court suggested that the “interactive process,” which is at the core of so many 3rd Circuit ADA decisions, would prevent the misperceptions in “regarded as” cases and would cut through the knotty issues raised in this case. While the Williams decision may lead to an increase in “regarded as” claims, it appears that there may still be an open question of whether a “not disabled but regarded as such” employee is entitled to a reasonable accommodation as a matter of law. What the case emphasizes for both clients and attorneys is the critical importance of a careful interactive process to prevent any confusion or misperception. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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