Surprisingly narrow construction of “regarded as” ADA disability definition
In Tockes v. Air-Land Transport Services, Inc. (7th Cir. 9/9/03), the 7th Circuit affirmed summary judgment for the employer on the basis that the plaintiff failed to establish he had a disability. The opinion rejects the plaintiff’s contention that although he was not in fact disabled he was regarded as disabled by the employer.
The plaintiff had injured his right hand before he was hired. “The injury clearly was not disabling within the meaning of the [ADA], . . . as it did not prevent him from working at jobs that require two hands, such as driving a truck that has not been adapted for a disabled person. And indeed he was hired by the defendant . . . after informing the defendant of his injury . . .. ”
He contended “that when he was fired the defendant told him the following three things: he was being fired because of his disability, he was crippled, and the company was at fault for having hired a handicapped person.”
He argued “these statements show that the company violated the provision of the ADA that creates a remedy for a worker who suffers an adverse personnel action because, though he is not disabled within the meaning of the Act, his employer thinks he is.”
[OK, I’m with him so far; how’s Judge Posner going to find otherwise? Read on. . . ]
“What defeats Tockes’ suit is that there is no evidence that his employer harbored the erroneous belief that he was disabled within the meaning of the Act. (Obviously it knew he had a disability.) For one thing, had it thought that, it would have been unlikely to hire him to drive a flatbed truck, at least without altering the controls so that he would not have to operate the manual gearshift with his damaged right hand.”
“It is true that . . . the defendant called him “crippled” and “disabled” and “handicapped,” but all are words with a range of meanings, and do not without more connote a belief that the individual is under the protection of the ADA.”
“Unless the employer mistakenly believes that an employee has a disability grave enough to be so classified under the ADA, the employer’s acting on the mistaken belief does not violate the statute.”
In recent years, as the courts slammed the door on numerous plaintiffs for failing to meet tough requirements for establishing actual disability, it seemed that plaintiffs might have more success with “regarded as” claims. Today, this is doubtful, as this case and many others have shown.
