By Richard Cohen
Maybe my recent post about firing (or not hiring) employees who are taking legally prescribed medications was not read by two Atlanta physicians groups, because if they did they would have known that (1) terminating a physician “because of an actual disability and because he was perceived to be disabled due to his use of legally prescribed narcotic medications” would have (2) violated the Americans With Disabilities Act (“ADA”), as well as been a big red flag waved in front of the EEOC which salivates over health or medical groups (allegedly) violating the ADA.
Think of it: doctors firing another doctor because he is taking legally prescribed medication. What an easy mark for the EEOC!
Anyway, the EEOC did, in fact, sue, with the local EEOC director noting that employers must conduct “individualized assessments” when they have concerns about an employee’s ability or fitness to perform the job duties. She then repeated the obvious: “EEOC will continue to hold employers accountable when they summarily dismiss employees based on unsubstantiated fears about a perceived disability.”
See my recent post, “Just Say No (To Blanket Drug Exclusions For Job Applicants.”
“Perceived As” Disability
Some folks are not aware of that aspect of the ADA which prohibits discrimination based upon the “perceived disability” of an applicant or employee. The ADA prohibits making an adverse determination about an employee – such as termination — not only based upon a disability or record of disability, but also because the employer perceives the employee to be disabled.
As an EEOC trial attorney stated in an earlier case: “[E]mployers should not make decisions based on perceptions about someone’s supposed impairment. … the ADA requires employers to make an individualized assessment about an applicant or employee’s ability to do the job instead of acting out of speculative fears or biases.”
Fears And Stereotypes About Disabilities
Another EEOC attorney said that “speculation and fears over … perceived disability … is exactly the type of discrimination the ADA was meant to address and stop.”
The EEOC And Healthcare People
I’m getting a little weary repeating that medical and health professionals keep presenting such inviting targets for the EEOC. And repeating the quote of a regional director of the EEOC, who said recently (about a similar suit against a medical facility) that it is “ironic when a hospital, which is dedicated to caring for the health of its patients, ignores the medical concerns of an employee, refuses to even discuss providing a needed workplace modification, and instead fires him because of his disability.”