Why it matters

The Americans with Disabilities Act’s (ADA) “regarded as” protections do not extend to cases where an employee is presently healthy but has the potential to become disabled in the future, a Florida federal court ruled in rejecting a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The agency filed suit on behalf of Kimberly Lowe, a massage therapist who asked for time off from her job at Massage Envy to visit her sister in Ghana. Although her request was initially approved, Lowe was fired three days before her trip after one of the company owners expressed concern that she would be infected with Ebola during her trip and infect co-workers and clients upon her return. The EEOC asserted that Lowe’s termination constituted disability discrimination in violation of the ADA. But the court disagreed. The employer simply regarded Lowe as having the potential to become infected with Ebola in the future, the court said, which does not fall under the protections of the statute as would be the case for an employee who is currently contagious.

Detailed discussion

Kimberly Lowe began working as a massage therapist at Massage Envy on Jan. 13, 2012. In September 2014, she asked for time off to visit her sister in Ghana. The company’s business manager approved her request. But three days prior to her trip, one of the owners fired Lowe. He expressed concern that she would be infected with Ebola if she traveled to Ghana and infect her co-workers and clients upon her return.

When she returned from Ghana, Lowe filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After conciliation efforts failed, the agency filed suit in Florida federal court alleging the employer violated the Americans with Disabilities Act (ADA) by firing Lowe with claims under both “regarded as” disability and association discrimination.

The employer moved to dismiss both counts. U.S. District Judge Mary S. Scriven granted the motion, ruling that the statute does not protect an employee who may become disabled.

Under the “regarded as” prong of the ADA’s definition of disability, an individual is regarded as having a disability when he or she is subjected to a prohibited action because of “an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” The EEOC argued that this language means employers can violate the ADA even when they discriminate against an otherwise healthy individual based on misconceptions about that person’s potential to become disabled in the future.

But the court rejected this position, distinguishing cases that involved employees who were presently impaired. Those cases involved a teacher currently contagious with tuberculosis, a job applicant erroneously believed to have a back injury, and an employee who was terminated after traveling to Mexico because her employer feared she had contracted swine flu.

“The Court declines to expand the ‘regarded as’ disabled definition in the ADA to cover cases, such as this one, in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct,” the court wrote. “Accordingly, the EEOC has failed to state a claim for discrimination under the regarded as disabled definition of the ADA.”

Turning to the association discrimination claim, Judge Scriven reached the same result. At the time of Lowe’s termination, she had not yet associated with people in Ghana, and there was no evidence that Massage Envy knew that any individual in Ghana with whom Lowe would be meeting had Ebola.

“The plain language of the ADA makes clear that the relevant individual complainant must be ‘known to have [present tense] a relationship’ or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination,” the court said. “Here, there is no question that [the employer] was without knowledge of a current association between Lowe and individuals in Ghana at the time of Lowe’s termination, because any such association had not yet occurred. This fact is fatal to the EEOC’s prima facie case.”

Further, even if the plaintiff could bring an association discrimination claim for a potential future association with a disabled individual, the ADA clearly requires that such an individual have a “known disability,” the court added.

“The ADA does not establish a cause of action for discrimination against an individual who associates with people who are merely regarded as disabled,” Judge Scriven wrote. “Lowe expressly pleads in her charge that she was not planning to associate with any people who were known by [the owner] to have Ebola. Indeed, it is central to the EEOC’s theme of the case, as articulated in its complaint and opposition to the Motion to Dismiss, that [Massage Envy’s owner] was woefully ignorant in his beliefs and resulting bias that people in Ghana have Ebola. His behavior in terminating Lowe based on this nescience and Massage Envy’s support of him in this behavior, although deplorable, are not actionable under the statute.”

The court dismissed the suit and denied the EEOC’s motion to file an amended complaint, finding the effort would be futile.

To read the order in EEOC v. STME, LLC, click here.