Can employees or applicants have a claim under the Americans
with Disabilities Act, if they are not even disabled? They can if they were “regarded as” disabled
and were discriminated against on that basis.
In a recent case, a Minnesota federal court considered whether an
employer regarded an employee as having a mental impairment when it required the
employee to undergo psychological evaluation.
The court determined that the employer did not regard the employee as
disabled, making the distinction between assuming an employee is not able to do
his/her job (because of perceived anger issues) and assuming that the employee
has a mental impairment that would fit the definition of a disability under the
law.
In this case, the police officer in question removed his
firearm prior to a meeting with his superiors, making a comment that he should
not have his gun with him when he went upstairs to talk to people. Upon learning of this, the employer became
concerned with the employee’s ability to safely perform the duties of a police
officer, and referred him for a psychological Fitness for Duty Evaluation. The evaluation found no psychological
impairment that would prevent him from safely performing his duties, but
concluded that he should continue to see a therapist to process anger,
frustrations and suspicions. Based on
this assessment, the employer directed him to participate in therapy for these
purposes and to provide Human Resources with periodic written progress reports
from his therapist. Additionally, based
on the opinion of another psychologist who suggested that he take part in
stress management or counseling before returning to duty, the employer placed
him on home duty.
The court found that these actions did not show that the
employer regarded the employee as disabled; they just showed that the employer
questioned whether he was too angry or erratic to carry a firearm or patrol the
streets. However, whether or not the
employee was disabled or regarded as disabled, employers can only require
medical examinations to make inquiries as to whether an employee has a
disability or the nature and severity of a disability, if the examination or
inquiry is “job-related and consistent with business necessity.” In this case, the court found that the
requirements to undergo a psychological evaluation and to continue with therapy
and provide progress reports were job-related and consistent with business
necessity, because of his troubling behavior and the assessments of the
therapists, combined with the rigors of the job of a police officer.
This is a very nuanced area of the law that often trips up
even the most diligent employers and Human Resources professionals. For assistance in dealing with an employee
who has exhibited red flags regarding fitness for duty, contact Christine
Beggan at (952) 746-1700 or chbeggan@wesselssherman.com
to arrange a discussion with one of our experienced attorneys.
