Sporadic and isolated comments: “Regarded as” claims under the New ADA vs. the Old ADA

The ADA protects three classes of “disabled” employees:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual;
2. Those with a record of such an impairment; and
3. Those regarded as having such an impairment.

To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental
impairment, and that the impairment was one with a duration of more than six months.

In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:

• “You’ve had a lot of surgeries for one person.” (made six years before her termination)
• “[Gastric bypass] is a very risky surgery.” (made five years before her termination)
• “If [you] didn’t have so many surgeries [you] wouldn’t have so much time off and [that you] need to take better care of [yourself].” (made one year before her termination)

The Court concluded that these remote and isolated statements could not support her “regarded as disabled” claim. The Court affirmed the trial court’s dismissal of the ADA claim, stating:

First, none of Rogers’s statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, … the concern reflected in each of Rogers’s statements—including the third statement … —centers on Gecewicz’s excessive absenteeism, not a perceived disability. Being absent from work is not a disability.

What is the takeaway for businesses? Train your managers and supervisors never to discuss employees’ medical issues. “Regarded as” claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA’s “regarded as” prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.

Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee’s surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees’ medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.