A recent court decision presents an interesting fact pattern not often seen in ADA cases.
As we know, the ADA prevents discrimination against a qualified individual on the basis of disability, if the plaintiff can show that (1) he is disabled; (2) he is otherwise qualified for the position with or without reasonable accommodation; (3) he suffered an adverse employment decision; (4) the employer knew or had reason to know of his disability; and (5) he was replaced or his position remained open.
Moreover, plaintiff’s disability must be a “but for” cause of the adverse employment action.
With the adoption of the ADA amendments the element of what constitutes a “disability” is fairly (although not always) settled. The element of what constitutes an adverse action has been litigated frequently (a topic which we will explore in a coming post), and is also fairly well settled.
Under the burden-shifting McDonnell Douglas test, plaintiff’s qualification for the position and/or whether he was actually replaced that are issues which are fact based and litigated actively on a case by case basis on plaintiff’s prima facie case. And perhaps the single most litigated issue in such cases is whether the employer provided a reasonable accommodation to plaintiff (which did not present an undue hardship to the employer) and whether the employer engaged in the required interactive process with plaintiff as to such an accommodation.
(And, to be comprehensive, there is the “perception of disability” claim – the ADA has a prohibition against discriminating on the basis of a “perception of disability.” As the EEOC once stated “Employers must provide accommodations for qualified individuals with disabilities and must base all employment-related decisions on facts, not stereotypical assumptions about an employee’s abilities).”
But what about the employer’s knowledge of the disability?
Not a frequent issue since the disability is either readily apparent or else is brought to the employer’s attention by the employee (often in an attempt to insulate the employee from some anticipated adverse action). Indeed, if the employer is unaware of the disability it generally follows that there can be no claim.
This was the case recently where plaintiff, who suffers from spina bifida occult, claimed disability discrimination when he was terminated in what the employer characterized as a reduction in force. (Spina bifida, according to the CDC, is “a condition that affects the spine and is usually apparent at birth. It is a type of neural tube defect (NTD). Spina bifida can happen anywhere along the spine if the neural tube does not close all the way. … This often results in damage to the spinal cord and nerves. Spina bifida might cause physical and intellectual disabilities that range from mild to severe).”
The employer contended that plaintiff’s manager did not know of plaintiff’s disability and “used a matrix of objective criteria to determine who would be eliminated.” Plaintiff was one of the unlucky ones because he “was the least senior in the department and could be released with the least amount of disruption.”
A federal appeals court held that while the company clearly knew of plaintiff’s disability, “an employee cannot be considered to have been fired ‘on the basis of disability’ unless the individual decision-maker who fired the individual had knowledge of that disability.” The Court found that that “it is undisputed” that the manager was the “sole decisionmaker regarding the reduction-in-force job eliminations within his department,” but that he was “wholly unaware of the specifics” of plaintiff’s physical restrictions caused by his disabling condition.
Without knowledge of plaintiff’s disability there can be no discrimination.