Disability acy covers those employers see and treat as impaired
Published 09/23/05

If an employer regards a worker as disabled, even though the worker's impairment does not rise to the level of a disability under disability employment discrimination law, the employer may still have an obligation to accommodate for that worker's impairment.

This issue was discussed in the Federal Eleventh Circuit Court of Appeals' decision of Cris D'Angelo v. Conagra Foods, Inc . decided on August 30, 2005.

In that case, D'Angelo, who suffers from vertigo, sue her former employee, Conagra Foods, Inc. arguing that she was terminated from her job as a product transporter on the basis of a disability in violation of the American With Disabilities Act ("ADA"). In the alternative, she alleged she was regarded by Conagra as being disabled and was fired without the employer providing a reasonable accommodation. The trial court summarily ruled for Conagra and therefore did not allow D'Angelo to have her trial by jury. The Court of Appeals reversed that decision stating that while it agreed with the trial court that D'Angelo's vertigo was not a disability under the ADA, there was an issue of fact as to whether or not D'Angelo's employer regarded her as being disabled and if so, whether or not it failed to reasonably accommodate D'Angelo's vertigo impairment.

In particular, D'Angelo was employed by a seafood processing plant and after several job positions became a product transporter.

As a transporter, D'Angelo stacked; pulled pallets with a jack; packed; worked in area above the plant floor called the "triangle" making sure that fish traveling down the chute did not clog the machine; weighed product; and "one or twice" worked on the box-former machine and the saw. On September 20, 2001, D'Angelo gave the plant manager a note from her doctor which stated her vertigo condition affects her when her eyes have to look at moving objects such as belts and that therefore she should avoid this situation since it could cause her to fall and sustain injury.

After receiving the doctor's note, the plant manager met with the Human Resource Vice President and determined that there was no available position that would not require D'Angelo to work with moving equipment such as conveyor belts and therefore fired her.

The Court of Appeals found that the vertigo condition was not a disability under the ADA since while it affected her work, she was not prohibited from working from a broad class of jobs. In fact, there was current evidence that accommodations could be made in her work so that she would not be working around equipment such as conveyor belts. Even though Conagra contended that her impairment did not rise to the level of a disability under the ADA, D'Angelo was entitled to a reasonable accommodation if her vertigo condition caused Conagra to regard her as disabled.

While this case is not legal precedent for New Hampshire employers, New Hampshire employers should understand that the First Circuit Court of Federal Court of Appeals does create legal precedent for a New Hampshire employer and that it also addressed the issue in 1996 in the case of Katz v. City Metal Co ., but only indirectly, assuming without expressly holding that the ADA requires reasonable accommodations for employees regarded as disabled.

Therefore, it would be prudent for New Hampshire employers when considering a request for an accommodation from a worker who has a mental or physical impairment to speak with the employer's legal counsel to assist the employer in not only determining whether or not the impairment could be found to be constituted a disability under the ADA but also under the facts and circumstances whether or not the worker could make a credible argument that the employer regarded the worker's impairment as constituting a disability and therefore was obligated to reasonably accommodate the worker.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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