In order to get damages under title I of the ADA, you have to show intentional discrimination. In order to get damages under title II of the ADA, you have to show deliberate indifference. But what does intentional discrimination mean with respect to a regarded as claim? Must there be discriminatory animus or can there be an innocent misperception and that is enough? Also, with respect to a regarded as claim, do you have to show that the person who was regarded as having a disability was able to perform the essential functions of the job (assuming a title I context). The answer to that question is not as straightforward as you would think because the ADAAA makes clear that a person who is regarded as having a disability is not entitled to reasonable accommodations. That leads to the question of whether the analysis that goes along with determining whether a person can perform the essential functions of the job is still in play in a regarded as claim case.
A case that answers this question is Nelson v. City of New York, 2013 WL 4437224 (S.D. N.Y. August 19, 2013). In this case, the plaintiff was a police officer with the New York Police Department. She was placed on medically restricted duty in August 2000 as a result of swelling in her hand and thumb. In September of that year she was injured in a car accident while on duty and suffered injuries to her knees shoulder and back causing her to undergo several surgeries. Two years later, the plaintiff contacted the New York Police Department early intervention unit and from their things became a big mess. They diagnosed her with passive suicidal ideation without intent or plan, a diagnosis which the plaintiff denied. She then went ahead and applied for an ordinary disability pension and saw a psychologist for two years. The medical board originally denied the ordinary disability pension but eventually two years after originally applying for an ordinary disability pension benefit, they granted her the ordinary disability pension based on a diagnosis of somatization disorder, a diagnosis that neither the plaintiff nor any of her physicians believed she had. She then retired from the force with an ordinary disability pension. In December 2005, the plaintiff began applying for reinstatement and her psychologist wrote a letter saying that her mental status would not interfere with her work as a police officer if she was fully functional physically. Also, her psychologist strenuously disagreed with the medical board’s diagnosis. In 2008, the police pension fund notified her that she would no longer considered disabled by them and was eligible to apply for reinstatement to the New York Police Department. Therefore she underwent a psychological evaluation and met with a psychologist. That psychologist reviewed the documents of plaintiff’s psychologist and said (the court used the term, “purported”), that she also considered the results of the psychological tests given to the plaintiff as part of her evaluation. She then concluded that the plaintiff was not fit to be a police officer due to her significant psychological history.
In saying that the plaintiff’s case could proceed against the non-individual defendants because questions of fact existed, the court reasoned as follows:
1. Since there was abundant evidence that two doctors advised against reinstating the plaintiff based upon her extensive psychological history, the plaintiff was perceived as disabled and the City’s decision not to reinstate her was the result of a perceived mental impairment.
2. A regarded as claim does not require invidious discriminatory intent in order to be actionable. The court adopted the EEOC interpretive guidelines on this point as well as a decision from the Third Circuit all of which said that even an innocent misperception based on nothing more than a simple mistake as to the severity or even the existence of an individual’s impairment can be sufficient to satisfy the definition of a perceived disability under the ADA. Accordingly, plaintiff had demonstrated that the City decided not to rehire her because it regarded her as disabled.
3. With respect to essential functions of the job, the court cited to a law review article saying that the regarded as provision of the ADA is intended to benefit only those erroneously perceived to be disabled and who can perform the essential functions of that job. When the claims of the litigants were sorted out by the court, the court believed that what was really at issue was whether the plaintiff was a direct threat to herself or others. This led to the question of who had the burden of proof of showing whether a direct threat existed. The court said that the Second Circuit had not spoken directly on this issue but had said that the employer generally bears the burden of demonstrating that the plaintiff poses the direct threat to herself or others. That said, ultimately who bears the burden of showing direct threat didn’t matter to the court, because the court said that it could not conclude as a matter of law that the plaintiff posed a direct threat to herself and others. In other words, the City could not demonstrate beyond genuine dispute that the plaintiff was a direct threat to himself or others.
4. With respect to proving up direct threat, the court looked to the EEOC regulations on that. In particular, the factors needing to be shown to show a direct threat include: the duration of the risk; nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. 29 C.F.R. § 1630.2(r). The court said that a genuine dispute of material fact existed as to the nature and severity of the potential harm with respect to the plaintiff rejoining the force and the likelihood that the harm would occur. A genuine dispute of fact also existed as to whether she could return to the Police Department and perform the essential functions of a police officer. Also, the court noted that the plaintiff’s psychologist after assessing the plaintiff in 2007, reached the conclusion that she no longer met the criteria for histrionic personality and no longer suffered from posttraumatic stress disorder. Further, the plaintiff’s psychologist suggested that many of the plaintiff’s past symptom were largely the result of an undiagnosed thyroid cancer and an undiagnosed specific kind of autoimmune disorder. Finally, the court found plaintiff’s psychologist to be highly credible.
5. The court said that the plaintiff’s psychologist statements about those with mild histrionic disorders being able to serve as police officers were credible. In fact, the plaintiff’s expert said that if the Police Department was really relying on that diagnosis being disqualifying, they would never be able to fill out their police force.
6. The report that the police department relied upon focused on the plaintiff’s psychological history rather than on the impressions of the plaintiff from their interview and the plaintiff’s performance on various psychological tests that she had administered, or even the more recent findings of the plaintiff’s psychologist. In fact, the report explicitly said that the primary area of concern is the plaintiff’s psychological history and not her current psychological profile. In fact, the report did not even devote one sentence to the impressions about the plaintiff’s current psychological profile and the report seemed to imply that the plaintiff’s history rendered her per se unqualified to serve as a police officer regardless of her current psychological profile. The endorsement of this particular report also ignored the plaintiff’s current psychological profile.
Takeaways: The first thing we can take away from this case is that determining essential functions of the job may involve getting to the root of a medical diagnosis and expert testimony can be critical in sorting that out. Second, if an employer is going to deny reinstatement to someone, that termination needs to be based upon the person’s current mental or physical condition and the employer needs to be wary of over relying on the plaintiff’s past mental or physical condition. The question is whether they can do the essential functions of the job with or without reasonable accommodations at the time they apply or seek reinstatement and not as they were in the past. Third, if an employer is going to argue direct threat, that assessment must be based on a reasonable medical judgment relying on the most current knowledge and/or the best available objective evidence ( see also Chevron v. Echazabal 536 U.S. 73 (2002)). Fourth, if the plaintiff is arguing a regarded as claim, the defendant needs to be aware that authority exists for saying that a regarded as claim can proceed even in the absence of discriminatory animus and where there is nothing more than an innocent misperception of an individual’s impairment. Finally, whether a person can perform the essential functions of the job is a relevant question when a plaintiff pursues a regarded as claim.