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Eighth Circuit Holds That Potential Future Disabilities Are Not Covered By The ADA
Kimberly Lowe worked as a massage therapist at Massage Envy-South Tampa (Massage Envy), a franchise of Massage Envy, a national spa and wellness company. Lowe requested to have time off from work to visit her sister in the West African country of Ghana. Lowe’s supervisor initially approved her request, but three days before her trip, one of the franchise owners, Ronald Wuchko, told Lowe that he would terminate her employment if she went on the trip. Wuchko stated that he was concerned that if Lowe went on the trip, she would contract the Ebola virus and would “bring it home to Tampa and infect everyone.” Lowe refused to cancel her trip and Wuchko terminated her. Lowe did not contract Ebola while on her trip and, in addition, there were no confirmed cases of Ebola in Ghana during the year Lowe traveled to the country.
When Lowe returned home, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that Massage Envy terminated her because Wuchko believed she would encounter a person having Ebola and possibly contract the virus. She claimed Massage Envy discriminated against her because Wuchko perceived her as having or having the potential to become disabled.
The EEOC investigated and found there was reasonable cause to believe that Wuchko terminated Lowe’s employment because he “regarded” her as disabled, in violation of the Americans with Disabilities Act (ADA). The ADA prohibits an employer from discriminating against a qualified individual based on disability concerning any term, condition, or privilege of employment. Under the ADA, a disability is (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of having such an impairment; or (3) being regarded as having such an impairment.
The EEOC filed a lawsuit against Massage Envy after conciliation efforts failed. In its complaint, the EEOC alleged that Massage Envy violated the ADA when Wuchko terminated Lowe because of his fear that she would contract Ebola during her trip to Ghana. The District Court dismissed the EEOC’s lawsuit, finding that Massage Envy did not perceive Lowe as having Ebola at the time Wuchko fired her and declining to extend the ADA’s “regarded as having” prong of the disability definition to cases in which an employer fires an employee at a time when it “perceives [the] employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.” The EEOC appealed.
On appeal, the EEOC, Lowe, and Massage Envy agreed that Lowe did not have an existing disability or a record of an existing disability when Massage Envy fired her. The issue before the court was whether Massage Envy “regarded” her as having a disability when it fired her. The EEOC argued that Massage Envy “regarded” Lowe as having a disability because it believed she would contract Ebola if she traveled to Ghana. Message Envy countered that Wuchko did not regard or perceive Lowe as having Ebola when he terminated her. Instead, Wuchko perceived her as having the potential to become infected in the future if she traveled to Ghana, which amounted to a perception that she could become disabled in the future.
The court meticulously analyzed the language of the ADA and relevant case law. The court noted that the “relevant time period for assessing the existence of a disability, so as to trigger the ADA’s protections, is the time of the alleged discriminatory act” or “the adverse employment action.” And, in “regarded as” cases, “a plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action” and the “impairment must not be ‘transitory and minor.’” Further, “[a]n employer does not fire or otherwise discriminate against an employee “because of” a perceived physical impairment unless the employer actually perceives that the employee has the impairment.” Also, the court found that the heightened risk of developing a disease in the future due to voluntary travel did not constitute a present physical impairment.
Ultimately, the court found that the definition of disability under the ADA did not cover a circumstance where “an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of overseas travel,” and it upheld a lower court’s dismissal of the EEOC’s case.
Equal Employment Opportunity Commission v. STME, LLC (11th Cir. 2019) 938 F.3d 1305.
This case turned on whether a potential future disability was covered by the ADA. It is important to note that similar facts could possibly support other causes of action against an employer. We recommend consulting with legal counsel before making a termination decision.