Approximately a month after being hired, a company co-owner observed an employee placing her face very close to a computer screen, and asked her why she was doing that. The employee responded that she suffered from a “degenerative retinal condition” that made it hard for her to read certain screens and records. But, the employee reassured her employer, this disorder did not affect her ability to do her job.

The company co-owner relayed this fact to another co-owner who was responsible for personnel decisions, and added that, as she understood it, the employee “would be blind in ten years.”

The employee felt that her condition merely means that she needs to hold written records close to her eyes to be able to read them; it does not inhibit her ability to read records as a matter of course, or impact her ability to perform her job duties.

Two other co-owners of the company e-mailed with similar concerns regarding the employee’s vision, and the owners gathered and held a meeting with the employee to discuss her vision.

At this meeting, the employee tearfully explained that she had been diagnosed with a degenerative eye condition. But, again, she insisted that the disorder did not affect her ability to do her job, and that her vision was otherwise “stable.” In response, two of the company owners reassured her that, vision issues notwithstanding, she was a “good fit” and was “doing well.” One of these owners asked her if she had “disability insurance” because, the owner thought the employee “might have a disability.”

Subsequently, co-workers reported further concerns about the employee’s vision, which made their way onto the employee’s annual evaluations, which stated, among other things, “[I am] worried about her eyesight.”

The company owners voted to fire the employee, but focused exclusively on the work-related errors, and made no mention of her vision during her termination.

The employee filed a charge of discrimination for disability discrimination with the Equal Employment Opportunity Commission (EEOC) and received a “right to sue” letter from the EEOC. She filed a lawsuit in federal court, alleging that the employer violated the provision of the Americans with Disabilities Act (“ADA”) prohibiting discrimination against employees “regarded as” disabled. In other words, the employee did not contend that she was disabled, but, rather, that the employer thought she was disabled (because of her vision), and that the employer acted wrongfully in firing her as a result of that erroneous perception. Babb v. Maryville Anesthesiologists P.C., 2019 U.S. App. LEXIS 33165 (6th Cir. Nov. 6, 2019).

The employer moved for summary judgment and the district court granted the employer’s Motion. However the employee appealed and the appellate court disagreed with the employer.

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The court determined that the employer’s decision to terminate “blindsided” the employee, as nobody at the company had criticized the employee’s duties prior to her termination.

The court noted that in an e-mail sent by one of the employee’s co-workers, just hours after the employee’s firing, the co-worker stated that the employer had fired the employee for the employee’s “worsening” eyesight.

In general, Title I of the Americans with Disabilities Act (“ADA”) prohibits covered employers from discharging an employee because the employee is disabled, because the employee has a record of being disabled, or because the employer “regards” the employee as disabled. This lawsuit only concerned the “regarded as” prong of disability discrimination.

In order to state the threshold condition of a “regarded as” ADA claim, an employee need only show that their employer believed they had a “physical or mental impairment.” If an employee establishes that their employer “regarded” them as disabled, the employee must still show that their employer discharged them (or took some other form of adverse employment action against them) because of their actual or perceived physical or mental impairment.

The court was persuaded by the evidence that the employer owners and employees openly expressed concern about the employee’s “degenerative retinal condition,” including on the employee’s job evaluation and during the meeting at which the employer decided to fire the employee. Also noted as a relevant factor by the court was that the employer’s head of personnel met with the employee specifically to discuss the employee’s vision, and, during that meeting, asked the employee if she had disability insurance. Also, after that meeting, the head of personnel advised her colleagues that the employee’s vision issues might require them to consult an attorney. The court stated that this is more than enough evidence from which a reasonable juror could find that the employer genuinely believed the employee had a “physiological . . . condition” affecting one of her “body systems,” namely, her vision.

Furthermore, the court explained that even if it accepted the employer’s description of the magnitude of the employee’s work-related errors as true, it would still be faced with an even more glaring factual dispute: Namely, just hours after the employer decided to fire the employee, a co-worker wrote an e-mail to her fellow workers essentially stating that the employer was firing the employee because of her impaired vision. More striking still, far from being mindless office gossip, this co-worker admitted that she composed this e-mail at the direction of one of the key players involved in the employee’s termination—shortly after the employer informed her of the employee’s termination.

“And, of course, all of this occurred in a context in which the employer’s [owners] felt concerned enough about the employee’s vision to discuss it at the meeting at which they decided to fire the employee, and on the official evaluations they wrote about the employee… If this kind of ‘smoking gun’ evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”

Florida employers should take from this case that courts will scrutinize management comments and even lower-level employees who make comments or send emails/text messages at the direction of their boss.

An experienced employment discrimination lawyer could have advised this employer of the dangers of regarding an employee as disabled and how that could invite a disability discrimination lawsuit.

If you need any assistance in disability issues for your Florida business or if you need guidance in any employment policies, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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