Today is the 28th Anniversary of the Americans With Disabilities Act (ADA)

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC sent out a tweet to remind us that today is the 28th Anniversary of the signing of the Americans with Disabilities Act (ADA) by President George H.W. Bush.

A case filed by a pro se plaintiff in Alabama reminds us that a person does not have to be disabled to be protected from discrimination by the ADA; the ADA also protects an employee whose employer erroneously perceives him/her to be disabled. In the case of Ruggieri v. The City of Hoover, AL, Case No.: 2:18-CV-0476-VEH (Motion to Dismiss denied July 24, 2018), the plaintiff alleged that his violated the ADA when it required him to attend psychiatric counseling. The plaintiff contended that he was the only one in his department required to do so, thereby showing it was inconsistent with job requirements and business necessity. The ADA provides that a covered employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

The City moved to dismiss on a number of procedural grounds. Among the arguments made by the City was that the plaintiff’s EEOC Charge (which generally provides the factual basis of a subsequent lawsuit) was deficient because the plaintiff did not allege that he was disabled. The district court rejected this and other arguments by the City. While giving the Plaintiff some latitude because he was not represented by an attorney, the court noted that the ADA protects employees who are not disabled. Further, the section of the ADA that prohibits medical examinations unless they are job-related and consistent with business necessity is not limited only to persons who are actually disabled.

This case is in the early stages, so we don’t know all of the facts. Nevertheless, it appears that the City could have handled the situation a lot better. If an employer wants an employee to undergo a physical or mental examination, it needs to have a good job-related reason, with supporting documentation, and it should share that reason with the employee so there are no misunderstandings.

This case also reminds us that an employer cannot blithely refer an employee to “anger management counseling.” Ideally, if the employer believes that an employee has demonstrated behaviors in the workplace that warrant a referral to anger management counseling, the employer should attempt to persuade the employee to attend such counseling voluntarily. However, if the employer requires an employee to attend anger management counseling as a condition of employment, this requirement may be construed as a “medical examination” under the ADA, and the employer must have a job-related reason consistent with business necessity to support it. Consult with experienced employment counsel to make sure that your company is not violating the ADA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

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