Dermatologist Faces Lawsuit for Terminating an Employee

Dermatology Times, Dermatology Times, November 2022 (Vol. 43. No. 11), Volume 43, Issue 11

In this month's Legal Eagle column, David J. Goldberg, MD, JD, reviews a lawsuit case regarding employee termination.

Dr Derm is a hard-working dermatologist practicing in a city that has yet to fully recover from the pandemic. Overhead is up and revenues are down. He is left with no choice but to start terminating some of his 22 employees. He evaluates them and finds they all perform well. However, he is aware that an employee with bulimia takes continuous breaks to eat small portions of food and follows them with prolonged bathroom breaks. Dr Derm is annoyed with this behavior, thinks it is disruptive to the work environment, and decides it interferes with patient flow. He terminates this employee. Before long, he receives notice of a lawsuit. His former employee alleges she was terminated for behaviors related to her bulimia. In the lawsuit, she contends her eating behavior was protected under the Americans with Disabilities Act (ADA). Dr Derm is 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 ADA, and will Dr Derm lose this lawsuit?

The ADA provides a general legal framework for access of individuals with disabilities to public places and accommodation of employees with disabilities in the workplace. Although the ADA contains specific guidance for physical accommodations, such as wheelchair access, it provides little guidance relevant to workers with conditions such as bulimia.

The employment provision of the ADA applies to employers who have 15 or more employees. 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, ie, when the employer wrongly assumes an employee cannot do a job because of a disability. If an employee is fired for legitimate work-related reasons, there cannot be an ADA claim even if the employee happens to have a disability.

The ADA defines disability as “(1) a physical or mental impairment that substantially limits 1 or more of the major life activities of such an individual; (2) a record of such impairment; or (3) being regarded as having such impairment.” The disability must last at least 6 months and not be a natural, self-limited condition such as pregnancy.

Is bulimia a disability under the ADA? Here’s a better question: Does bulimia fit 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, such as 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 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 could apply to an individual with asymptomatic bulimia. Bulimia is a complex disease that may affect many organ systems.

Having found that HIV is an impairment, the court then asked whether the impairment could substantially limit a major life activity without 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 could apply to the employee with bulimia and the potential impact of this condition on her having and raising children.

It is understandable that in difficult economic times, Dr Derm will need to cut back on staff. If an employee does not have a contract of employment, he can terminate that employee at will. However, when he terminated his employee for her bulimia, he opened himself to legal action for potentially violating the ADA. A long, expensive trial with an ultimate jury decision may ensue.

David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey; director of cosmetic dermatology and clinical research at Schweiger Dermatology Group in New York, New York; and clinical professor of dermatology and past director of Mohs Surgery and Laser Research at the Icahn School of Medicine at Mount Sinai in New York, New York.