David J. Goldberg, M.D., J.D.Dr. Derm is a hard working dermatologist practicing in a city that has yet to fully recover from the recession. Overhead is up and revenues are down. He is left with no choice but to start terminating some employees. He has 22 employees. He evaluates his employees and finds that they all perform well. However, he is aware that a particular 27 year old bulimic employee takes continuous breaks to eat small portions of food followed by prolonged bathroom breaks. Dr. Derm is annoyed with this behavior, feels it is disruptive to the work environment, and has decided it interferes with patient-staff flow. He terminates this employee.
Before long he is served with a law suit. His former employee alleges that she was terminated for behaviors related to her bulimia. In the lawsuit, she contends that her eating behavior was protected under the Americans with Disabilities Act. Dr. Derm is now devastated. In his attempt to lessen the financial burdens of his practice, he ends up with a lawsuit. He seeks legal help. What is the Americans with Disabilities Act? Will Dr. Derm lose this lawsuit?
ADA general legal framework
The Americans with Disabilities Act of 1990 (ADA) provides a general legal framework for access of individuals with disabilities to public places -- and also for accommodating employees with disabilities in the workplace. Although the ADA contains very specific guidance for physical accommodations, such as wheelchair access, it provides little guidance relevant to workers with conditions such as diabetes.
The employment provision of the ADA applies to employers who have 15 or more employees. The gist of the ADA is that it bans discrimination against a “qualified individual with a disability.” This is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or hires.” The ADA also prohibits discrimination based on a perceived disability; that is, when the employer wrongly assumes an employee cannot do a job because of a disability. If employees are fired for legitimate work-related reasons, there cannot be an ADA claim, even if the employee happens to also have disability.
The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (B) a record of such impairment; (C) being regarded as having such impairment.” The disability must also last at least 6 months, and not be a natural, self-limited condition such as pregnancy.
The ADA does not protect those who engage in illegal use of drugs or the use of alcohol in the workplace. Employees with substance abuse problems may be held to the same standard of behavior as other employees. However, those who have successfully completed a rehabilitation program for drugs, or who are currently enrolled in a program and not currently using drugs, are protected. Of note, courts have differed on whether alcoholism itself is a disability. Some federal circuit courts say alcoholism is a disability, but others have ruled that it is not.
Is bulimia a disability under the ADA?
Better asked, does bulimia fit under the ADA requirement as an impairment that substantially limits a major life activity? In general, courts look at this definition quite closely. In Bragdon v. Abbott, the United States Supreme Court considered whether an asymptomatic disease – HIV—could be a disability under the ADA. The plaintiff’s dentist refused to fill a cavity in the plaintiff’s tooth in his office, asserting that he did not have sufficient infection control equipment. The lawsuit was brought under the public facilities section of the ADA, but the test for disability is the same as in the employment section.
The Supreme Court first inquired into whether asymptomatic HIV infection was an impairment. The court held that the profound effects of HIV on the immune system qualify as an impairment, without requiring that the impairment produce symptomatic disease. The same ruling might apply to an asymptomatic bulimic—bulimia being a complex disease that might ultimately impact many organ systems.
Having found that HIV is an impairment, the Court then asked whether the impairment could substantially limit a major life activity though not yet causing symptomatic illness. The court found that being infected with HIV would affect decisions about one’s major life activities and, in this plaintiff’s case, would affect the decision to have children. The same analysis might apply to a 27 year old bulimic’s concern of the impact of this disease on her having and raising children.
Nevertheless, in Salim v. MGM Grand Detroit, L.L.C., the court rejected the claim of a person with diabetes as being substantially limited in working, thinking and taking care of herself, noting that not being able to perform a job during a particular time (i.e., time needed to eat) does not rise to the level of being substantially limited in the major life activity of working. Conversely, in Lawson v. CSX Transportation, Inc., the court determined that a jury could reasonably find the plaintiff substantially limited in the major life activity of eating as a result of his diabetes severely restricting what and when he could eat.
It is totally understandable that in difficult economic times, Dr. Derm wants to cut back on his staff. If his employees do not have a contract of employment, he can terminate an employee at will. However, when he terminated his employee for her bulimia, he allowed himself the potential to be sued in violation of the ADA. A long, expensive trial with an ultimate jury decision may ensue.