Non-disabled worker can bring action under ADA

An employer can land in hot water under the Americans with Disabilities Act (ADA) if it discriminates against a worker based on that worker’s disability. In other words, an employee can’t be fired, denied a promotion or treated negatively because of his or her disability. But did you know that an employer also violates the ADA by mistreating a non-disabled employee whom it thinks is disabled?

Take a recent case out of Virginia involving Joseph Cash, who worked as a service director for a car dealership in the town of Lexington.  He had worked for the dealership for three years when he took another job in 2013. He returned in 2015, but soon after had to take time off to deal with a bleeding ulcer and chronic anemia. While he was out, he and his wife stayed in touch with a supervisor. When Cash got back, he presented a doctor’s note requesting that he be able to work at the dealer’s location in Roanoke, which was closer to his home, or to work half days until he was better.

In response, his supervisor immediately replaced him at the Lexington location and cut his salary by a third. The supervisor also complained about Cash’s absence several years earlier for hip replacement surgery — an absence that had been covered by the Family and Medical Leave Act.

The dealership allegedly denied Cash’s requests to return to the Lexington location and his old salary once his condition improved. He ultimately had to quit because he couldn’t make ends meet on the lower salary.

Cash subsequently sued under the ADA. The employer argued that the claim should be thrown out since Cash didn’t claim his condition caused a “substantial impairment” of a major life activity and therefore he wasn’t actually disabled.

But a federal judge concluded that Cash’s communication about his condition to the supervisor and his supervisor’s reaction suggested that Cash was “regarded as” disabled by the employer, and an employer who takes an adverse action against an employee based on the perception that the employee is disabled is just as much in violation of the ADA as one who does so based on an actual disability.

As a result, Cash will have the opportunity to convince a jury that he should be compensated for his harm.

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