Publications: 7th Circuit rules on 'regarded as' disabled claim

As the United States population ages, employment law practitioners continue to see an uptick not just in age discrimination claims, but in lawsuits filed under the Americans with Disabilities Act (ADA) and its state and local counterparts as well.

The 7th U.S. Circuit Court of Appeals on Dec. 15 issued a significant ruling in such a case, pertaining to the ADA’s injunction that employers not take adverse employment action against employees whom the employer mistakenly “regards as” disabled. Powers v. USF Holland Inc. No. 10‐2363. And, while the employer in the case ultimately prevailed, the court imparted some cautionary advice to employers who maintain the so‐called “100 percent healed” policies for return to work.

USF Holland (USF) is a large trucking company. It employs primarily two types of truck drivers. “Road drivers” drive long distances and typically do little freight loading and unloading. “City drivers” make short local hauls to their terminal and spend significant time loading and unloading freight off the dock.

Driver Keith Powers injured his back in January 2002 while driving for USF over a rough portion of road. He received workers’ compensation benefits for several months but then successfully returned to work as a road driver.

In March 2004, Powers requested a transfer to a city route to accommodate the impending arrival of his child and to assist his father with the family farm. USF granted the request, but Powers soon claimed that he was having back problems and requested a switch back to road driving, where he would not have to load and unload as much freight. USF’s labor contract with the Teamsters, however, precluded this second transfer.

In August 2004, Powers complained to his supervisor that his back was really hurting. The supervisor advised him that he could be subjected to discipline if he continued to work while so injured. Powers left work that day.

Eighteen months later, Powers attempted to return to work, doctor’s note in hand. The supervisor ordered him to a fitness‐for‐duty examination, but a USF human resources official stopped it. She said Powers’ doctor’s note, which required Powers to drive road‐only with “limited” freight loading or unloading, rendered the physical examination premature. She also supposedly said that Powers could not return to work without a full medical release containing absolutely no work restrictions (i.e., “100 percent healed”).

USF subsequently asked Powers to complete a Request for Accommodation form, but he did not. He reiterated his request for road driving, but a USF terminal manager told him that he could not return unless fully cleared medically.

Powers sued in U.S. District Court, claiming that USF discriminated against him because he actually was disabled, failed to provide him a reasonable accommodation and illegally enforced its 100 percent healed policy against him. Powers also brought state law tort claims for negligent infliction of emotional distress and retaliatory discharge.

The district court ultimately dismissed all of Powers’ claims on summary judgment. Powers appealed the dismissal of his ADA claims only.

The 7th Circuit easily dispatched Powers’ claim that he actually was disabled. To sustain such a claim, the court stated, Powers had to demonstrate that he was “significantly restricted” in his ability to perform a class of jobs or a broad range of jobs in various classes. All Powers proved, according to the court, was “that he cannot work as a truck driver in positions requiring significant dock work.” Powers did not prove that he could not work as a truck driver generally.

The 7th Circuit’s ruling on Powers’ “regarded as” claim was more intriguing and might have a broader application for employers, especially those who still maintain a “100 percent healed” policy. In the appellate court’s view, Powers’ “regarded as” disabled claim, based solely on USF’s policy, actually alleged a per se disabilities discrimination claim. Several federal courts, the 7th Circuit acknowledged, have recognized such a claim, citing Jones v. UPS Inc. 502 F.3d 1176 (10th Cir. 2007); Johnson v. Paradise Valley Unified School Dist. 251 F.3d 1222 (9th Cir. 2001) and Henderson v. Ardco, Inc. 247 F.3d 645 (6th Cir. 2001).

However, the court found Powers’ situation more analogous to the facts of the recent case Dillon v. Mountain Coal Co., 569 F.3d 1215 (10th Cir. 2009). There, the 10th Circuit ruled that a “100 percent healed” policy does not, alone, automatically establish “regarded as” liability under the ADA.

According to the 7th Circuit, aggrieved employees who are not actually disabled, like Powers, must demonstrate that their employers regard them as substantially limited in their ability to perform a class of jobs or a broad range of jobs in various classes. Again, as Powers could only demonstrate that USF regarded him as unable to perform in a truck driving job requiring substantial dock work, rather than in a general truck driving job, his “regarded as” claim failed.

The 7th Circuit in Powers, while ruling for USF, nevertheless sounded a cautionary note for employers who maintain “100 percent healed” policies. Wrote the court, “From a business perspective, a 100 percent healed policy would likely be a disadvantage economically because an employer would be losing someone who might be the best person for the job. Also, if the impairment were such that the employee is actually disabled, then the employer might be subject to per se liability under the ADA.” This second risk greatly was heightened, the court noted, by the recent ADA amendments that liberalized the ADA’s definition of “regarded as” disabled.

In other words, USF really dodged a bullet here. Had Powers’ back injury impaired his ability to function as a truck driver generally, rather than as a truck driver required to perform substantial cargo loading and unloading, Powers may have prevailed on his “regarded as” or even his “I am actually disabled” claims. Employers who continue to deploy “100 percent healed” policies, especially after the imposition of the ADA amendments, are engaging in risky business.

Reprinted with permission from Chicago Daily Law Bulletin.