April 20, 2010

TERMINATED HIV+ EMPLOYEE ALLOWED TO PURSUE CLAIMS UNDER THE ADA AMENDMENTS ACT (ADAAA)

by Art Gutman Ph.D., Professor, Florida Institute of Technology

In an April 12, 2010 ruling in the US District Court for the Northern District of Illinois (Horgan v. Simmons [2010 U.S. Dist. LEXIS 36915], Judge Ruben Castillo denied summary judgment for the employer, permitting Kenneth Horgan to proceed with claims that (1) he was illegally terminated because of his disability and (2) the company owner (Timothy Simmons) made an illegal inquiry regarding his disability. A third charge was disallowed (invasion of privacy under Illinois state law). What makes this case particularly interesting is that it’s one of the first cases decided under the ADAAA. Also of interest, Judge Castillo credits the EEOC “Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended” published on September 23, 2009.

The facts of the case were that Horgan was diagnosed as being HIV+ ten years previously, but only his close friends knew. The following allegations were made by Horgan. There were no issues with Horgan’s ability to perform his job. He began working for the company in 2001 as a sales manager and was promoted to general manager in 2008. In July 2009, Simmons asked Horgan for a “social visit.” Simmons was not concerned with Horgan’s performance, but rather, whether something was wrong with him medically. Horgan felt compelled to disclose his condition, including that his TCELL count was 300 and that a TCELL count of 200 would constitute AIDS. Simmons then queried him with respect to how he could continue to work with a “terminal illness.” According to Horgan, Simmons told him immediately leave the premises and take a vacation. The next day, Horgan learned of his termination in an email disseminated to all general managers.

It should be noted that there are three ways (or prongs) for proving disability within in the meaning of the ADA. Prong 1 is having a current impairment that substantially limits a major life activity. Prong 2 is having a history of an impairment that substantially limits a major life activity, and Prong 3 is being regarded as having an impairment that substantially limits a major life activity.

On Prong 1, Simmons conceded that HIV is a physical impairment, but argued that Horgan failed to cite any “limitation of a major life activity.” Judge Castillo rejected this claim based on statutory ADAAA language. Accordingly:

[T]he ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA’s first definition of disability. In addition, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” …… Therefore, the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”.

Judge Castillo also ruled that ‘Such a conclusion is consistent with the EEOC’s proposed regulations to implement the ADAAA which lists HIV as an impairment that will consistently meet the definition of disability. Judge Castillo also favored Horgan on Prong 3, ruling “the complaint also establishes a disability under the third definition set forth by the ADA because he was regarded as having an impairment.”

On the issue of illegal inquiry, Simmons argued that his inquiry into Horgan’s medical condition was “job-related and consistent with business necessity.” However, Judge Castillo rejected this claim ruling:

Plaintiff’s allegation that he repeatedly insisted that nothing (including his HIV status) affected his ability to perform his duties directly rebuts Defendants’ assertion that the questioning was necessary to discern whether Plaintiff could “cope with the demands and responsibilities of his job.”

The case now goes to trial, unless of course, the defendant decides to settle (probably a good idea).

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