Perceived Disability Claims: Employers Beware
By Donn Meindertsma
It’s not an unprecedented situation: an employee begins occasionally acting hostile and aggressive. In an age of appalling mass shootings, doing nothing is probably not an option. The employee apparently needs professional counseling or medical intervention, and the employer’s instinct is to help him get it.
Employers that follow that instinct may increase their risks of disability discrimination claims. Unless disclosed by the worker, the employer probably doesn't know if the worker has a disability or if his behavior is related to one, but adverse action based on a perceived disability can still land an employer in court. That is how
Howard University Hospital (Howard) found itself on the losing end of a 2-1 decision last week by the District’s Court of Appeals.
Abdul-Azim was a cardiology technician at Howard who had two confrontations with coworker Perkins. Howard suspended both of them after the second incident but viewed Abdul-Azim as the aggressor.
The court’s opinion only briefly describes the incident leading to Abdul-Azim’s suspension. Thinking that Perkins skipped a procedure during patient care, he walked over to Perkins, put a hand on his shoulder, pointed to a monitor, and told him to correct the
omission. Perkins got up, left, and later accused Abdul-Azim of assault.
Abdul-Azim’s supervisor recommended that Abdul-Azim be referred to the Employee Assistance Program before returning to work. Howard's senior labor-relations specialist concurred, noting that “something” was driving Abdul-Azim to “manic behavior.” Abdul-Azim complied with the EAP referral. (The referral did not factor into the court’s decision against Howard.)
Howard also instructed Abdul-Azim to visit the Howard health department for a fitness-for-duty evaluation. The Howard doctor, Nolte, found Abdul-Azim’s behavior during the evaluation “bizarre” and concluded that he was hyperactive, manic, had
poor concentration and was not “physically able to safely and efficiently perform the essential functions of the job.” She referred him for a psychiatric evaluation.
Abdul-Azim then visited a psychologist (not a psychiatrist) who found that Abdul-Azim did not present a danger to himself or others. The psychologist gave him a letter indicating that he was receiving therapy, and he in turn delivered the letter to Howard.
Several weeks later, Howard asked Abdul-Azim to submit the results of the psychiatric evaluation (if he had completed it) to Dr. Nolte. The record is unclear what communications Dr. Nolte then had with Abdul-Azim (and his attorneys), but eventually Howard explicitly
informed Abdul-Azim he could not return to work until he had been evaluated and treated by a psychiatrist and cleared for duty by Dr. Nolte. Abdul-Azim failed to produce documentation of the evaluation, and Howard discharged him.
Abdul-Azim sued Howard under the District of Columbia Human Rights Act (DCHRA). He claimed that he was fired due to a perceived disability. The trial court granted summary judgment for Howard. Last week the appellate court reversed.
The appellate court addressed two issues: was there a disputed fact whether Howard perceived Abdul-Azim as disabled and
could a jury reasonably find that Howard’s stated reason for the discharge was a pretext for perceived-disability discrimination. The majority answered yes to both questions.
Perceived disability—The DCHRA's prohibition on disability discrimination defines "disability" to include "[b]eing regarded as" having a physical or mental impairment that substantially limits a major life activity. The majority opinion applied this provision to the case quite mechanically: 1) working is a major life activity, and 2) Dr. Nolte found that Abdul-Azim could not safely and efficiently perform the essential functions of his job. In short, the doctor’s notes “could reasonably be understood to demonstrate a belief” that Abdul-Aziz was disabled.
Two observations are in order here. First, Howard would probably have avoided the regarded-as disability discrimination claim altogether if it had simply fired Abdul-Aziz for his workplace aggression. Without the evaluation, Dr. Nolte would not have regarded him as disabled. On the other hand, a precipitous termination likely would have led to a different claim, say for race or ethnicity discrimination.
Second, if the doctor's evaluation (as documented in her notes) had focused on the specific tasks of Abdul-Azim's technician job, he might not have been regarded as impaired in in his general ability to work. But, according to the court majority, “nothing in Dr. Nolte’s conclusions was tied to the particular
demands of Mr. Abdul-Azim’s position."
Pretext— The majority opinion held that a jury could believe that Abdul-Azim’s failure to complete a psychiatric evaluation was a pretext for disability discrimination. The opinion faulted Howard for not being clear what Abdul-Azim had to produce, seemingly finding ambiguity in the hospital's request for “documentation verifying completion of a psychiatric evaluation” on the one hand and “the results of a psychiatric evaluation” on the other. To the extent Howard expected Abdul-Azim to have completed an evaluation, the majority conceded that the psychologist’s letter did not verify that, only that he was in therapy, but the letter “implied as much … given the implausibility of a psychologist treating a
patient without evaluating the patient first.” The majority also faulted Howard for failing to “communicate the precise requirement” that Abdul-Azim verify that his treatment had been completed.
The majority and dissenting opinions suggested that the outcome might have been different if Howard had presented certain arguments to trial court. First, as the dissenting judge saw it, a perceived-disability claim is not viable when the employer acts on a doctor's recommendation because the employer would not be relying on stereotypes about an employee’s abilities, which the DCHRA was meant to address. The dissent stated that Dr. Nolte’s “assessment based on her medical
judgment and her recommendation” that Abdul-Azim undergo a psychiatric evaluation before returning to work “does not as a matter of law establish that she ‘regarded’” him as having a disability. The majority rejoined that Howard had not advanced that that theory and that reliance on medical judgment does not always provide a valid defense to perceived-disability claims. (The majority left the door open for Howard to raise this argument on remand.)
Second, Abdul-Azim consulted with a psychologist, not a psychiatrist as Howard requested. He never proved that he completed a psychiatric evaluation, and the dissenting judge concluded that Howard accordingly had a non-discriminatory reason for discharging him, which a jury could not reasonably find to be a pretext. The majority responded
that Howard had not made that argument and, in fact, had used the terms psychologist and psychiatrist interchangeably in its briefing.
That majority’s finding seems to ignore what Dr. Nolte's role was. She was presented with an employee who aggressively confronted a coworker. Her task was to assess whether he was fit to work in his Howard job. She had no reason to consider whether Abdul-Azim was fit to work anywhere else or was impaired in his general ability to work.
When situations like Abdul-Azim’s arise, the employer should tightly control who is involved in responding. Howard
seems to have done so, but it is easy to see how the case could have been worse for the hospital if a host of managers and others were asked for their thoughts about Abdul-Azim and if the documentation revealed their possibly uninformed opinions. Second, documentation must be precise. Notes and emails should not leave open ended questions about whether someone might have viewed an employee as impaired in a major life activity. Keep commentary tied to the employee’s specific job duties. Finally, if an employee must have a medical evaluation before returning to work, be precise about how the employee is to satisfy the condition. The court majority seems to have nitpicked Howard’s directive to Abdul-Azim, which demonstrates that even a slight ambiguity can have negative consequences if employment litigation ensues.
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