Why the ADA Can Make it Difficult for a Direct Supervisor to Discharge an Employee

It is often a challenge for employers to decide on who will deliver the bad news to an employee that their employment has ended. That decision may depend on who can connect with an employee and cause the least amount of personal and workplace turmoil.

Direct supervisors may rightfully claim they have special insight into certain workplace tensions and feel they are best positioned to steer clear of these tensions during a termination meeting with an employee. But in some instances, the law actually favors using Human Resources personnel or managers with less personal interaction with the employee. The Americans with Disabilities Act (ADA) is one such example, and employers should consider using management personnel who can credibly and demonstrably deny knowledge of personal observations or individualized data when ending an employment relationship with an employee considered "impaired" under the ADA.

In 2008, Congress amended a provision of the ADA that can impose liability on an employer when the employee is "regarded as" having an "impairment." 42 U.S.C. 12102(3). Under the cited provision, an employer can incur liability for disability discrimination if the employee can show an employer violation of the ADA occurred "because of an actual or perceived physical or mental impairment." The 2008 amendment added language to expand the scope of employer liability for disability discrimination to instances of "whether or not the impairment limits or is perceived to limit a major life activity." More than ten years later, many employers and their lawyers are still trying to unpack the amendment's language with grammar rules or limiting case law authorities, sometimes to no avail.

One such recent example occurred in Wilders v. Quikrete Companies, Inc., Civil Action No. 17-1115 (W.D. Pa. March 12, 2019). In Wilders, the plaintiff employee suffered from arthritis in his knees. That condition made it difficult for him to walk long distances, especially more than a mile. Yet no doctor had issued any restrictions for the employee, including for walking any distances. In April 2015, the plaintiff started to perform duties as a truck driver that included checking the trucks for safety, performing minor maintenance, changing and rolling up straps, securing loads, unstrapping loads, replacing lights, driving product safely, and returning empty pallets. The job duties also required standing, walking, climbing, balancing and lifting up to 100 pounds.

After the plaintiff received his pre-employment physical, he was declared fit for duty with no physical restrictions. And subsequently, no physical restrictions were ever issued by a doctor to the plaintiff for either his truck driving job or for his post as a volunteer fireman. However, after the plaintiff started his employment as a truck driver, the plant manager saw the plaintiff limping and walking on the balls of his feet. The plaintiff testified that the plant manager knew about the arthritis in his knees. The alleged knowledge by the plant manager became an issue as seasonal layoffs approached in January 2016. During January 2016, the plaintiff fell on ice while at work and his left shoulder struck his trailer. The plaintiff reported his injury but also said he wanted to first strap and unstrap a new load and drive his truck for two hours to deliver another load. The plaintiff admitted that was an unsafe decision.

The next day after his fall, and by employer request, the plaintiff received an examination by a physician. The plaintiff was released to work without restrictions. At that point, the plant manager had issues with the plaintiff over his honesty about the fall and prepared a written warning citing the plaintiff's failure to wear non-slip soles. But that warning was never given. Instead, the plaintiff was placed on seasonal lay-off. Later on, the plant manager met the plaintiff and told him that he would not be recalled, even though the plaintiff was eligible for re-hiring. According to the plaintiff, the plant manager said that the employer did not want to be responsible for the employee's knees. In contrast, the plant manager testified that while he did not give the plaintiff a specific reason, the employee did ask him if the discharge had to do with his knees. The plant manager said he responded by saying no, and asserted in his testimony that at the time he also thought that plaintiff's knees had never been an issue for his employment.

The employer moved for summary judgment. The court denied the employer's motion. They key focal points for the court were both factual and legal. The appellate case law that the employer cited in support of its argument–that plaintiff lacked an ADA case for trial–was case law that was issued before the 2008 amendment to the ADA. As a result, the court found that whether the plaintiff possessed the ability to walk, and was therefore not perceived as having an impairment that limited a major life activity, was a failing legal argument due to the 2008 amendment and recent case law. In addition, the employer's failure to recall the plaintiff qualified as an adverse employment action under the ADA.

The court also viewed the factual evidence as compelling a denial of the employer's motion. According to the plaintiff's testimony, the plant manager had twice questioned him before the termination about his knees. In addition, the plant manager admitted seeing the plaintiff limp and walk on the balls of his feet. Moreover, the plaintiff had testified that the plant manager had said that the employer did not want the continued liability for the plaintiff's knees and never answered the plaintiff's question about whether his discharge had to do with his limp. As a result of the evidence and the 2008 amendment to the ADA, the Court found that the plaintiff met his burden of showing that the "employer regarded him as impaired such that he qualifies as disabled under the ADA." The contradicted version of events required a trial over the issue of whether the employer's decision to not recall the plaintiff arose from an intent to reduce the employer's liability because the plaintiff's perceived impairment placed him in a higher risk category for a workplace injury. According to the court, only a trial could resolve the issue of whether the employer's decision was a pretext for disability discrimination.

The Wilders opinion serves as another reminder that using managerial personnel unfamiliar with the personal details of an employee may be the best option when communicating the business case for a discharge or decision not to rehire from a layoff. Management personnel who can credibly and demonstrably deny knowledge of personal observations or individualized data may present a better option when having to communicate the difficult news that ends an employment relationship.