Most people realize that it is illegal for an employer to discriminate against you because of your actual disability. However, employees may not realize that it is also unlawful to discriminate because an employer thinks you have a disability, or that your condition makes you disabled, even if you do not have a disability or are not disabled. This type of discrimination is based on a “perceived disability.”
The ADA generally defines disability as actually having a disability that inhibits a major life activity. It also includes those who have a history of disability. Finally, it also covers those who are believed to have a physical or mental impairment, even if that person is not disabled and fully capable of performing all of the essential functions of the job.
The result is that the ADA also protects people who are not disabled—but an employer thinks that person is disabled.
The ADA protects those who are perceived as disabled for several reasons. First, if someone is perceived as disabled, they may still suffer from stereotypes, myths, and fears that are associated with being disabled, such as assuming that those workers who have disabilities are somehow less capable than other people.
Extending the ADA to prohibit those perceptions is intended to discourage employers from treating anyone differently who may have a disability or impairment, even if they are unsure of their status as a person with a disability. It also protects employees who do not wish to disclose their condition to their employers. The employer is also precluded from asking the employee if he/she has a disability.
Some perceived disability cases deal with situations where the employee is just beginning to experience symptoms of a condition that might become more severe in the future. Hearing and vision are good examples of these situations.
For example, imagine you have some hearing problems right now, but your current hearing issues do not inhibit how you work. Suppose your employer takes an adverse employment action (termination, demotion, moving job duties, failing to promote, etc.) because they expect or think that your hearing will get worse. This is an example of discrimination based on a perceived disability. The ADA protects against these acts.
If you think your employer has taken negative action toward you because they think you are disabled, you may have a legal claim even if you are not. Contact the team at Goldman & Ehrlich to learn more about your legal options: 312-332-6733.