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What evidence may satisfy the link between disability and adverse employment action?



The Americans with Disabilities Act (“ADA”) prohibits “discrimination against a qualified individual on the basis of a disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” To bring a disability claim, an employee has the burden of establishing three things: (1) that the employee is disabled; (2) that the employee is qualified to do the job; and (3) that the employer subjected the employee to unlawful discrimination because of his disability.

Establishing a prima facie disability claim under the “regarded as” theory

First, as mentioned above, the employee must establish that he is disabled. An employee can demonstrate this by showing that he has a physical or mental impairment that substantially limits one or more major life activities of the individual, a record of such impairment, or being regarded as having such impairment. If an employee pursues a disability claim through the “regarded as” theory, he must establish that the employer “perceived” the employee as disabled. However, the employee does not have to establish that the employer perceived the impairment as “substantially limiting a major life activity.”
An employer may “regard” an employee as disabled if it acknowledges an employee’s impairment. The employee can put the employer on notice of his disability by disclosing information related to the impairment, including diagnosis and treatment information. However, the employer must affirmatively recognize, acknowledge, or otherwise react to the employee’s disclosure in some way to establish that the employer “regards” the employee’s impairment. For example, if an employee is cleared by a doctor to start working, but then the employee later informs the employer about an impairment, and that employer subsequently requires additional testing, then the employee may have sufficient evidence to establish that the employer “regarded” the employee as disabled. In that situation, the employer is recognizing the employee’s disclosure of an impairment and reacting to it by subjecting that employee to additional testing, after he was cleared to begin working.

How can you establish causation between the disability and an adverse employment action?

After establishing that the employer “regarded” the employee as having a disability, the employee must also establish that the employer took adverse action against the employee because of its perception of the disability. An employee may establish causation by providing evidence that shows the employer took the adverse action soon after the employee informed the employer of his impairment; by showing that the employer wanted to take action against the employee due to the disability; or that the employer’s actions were unsupported or unsubstantiated. The evidence required to satisfy this element is high, as many courts have ruled in favor of employers when the employee simply cannot provide evidence that the employer took adverse action because of the employee’s disability. Courts have found that there is no causation between the disability and
adverse action when the employer had a legitimate reason for taking its action and the employee agrees with the employer’s reasoning, even if the employee also believes it was related to his disability.

If you believe your employer has taken an adverse employment action because of your disability, you must connect the two events with evidence. You must believe that your disability is the only reason that motivated the employer to act adversely against you. Evidence suggesting close timing between the two events, discriminatory comments by an employer, or unsubstantiated adverse actions are some of the types evidence that may demonstrate causation.

If you feel your employment rights under the ADA have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.

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