HR HotSpot Recap: How to Avoid “Regarded As” Discrimination Claims Under the ADA

By Jezabel Southard

Posted on May 9, 2018

Discrimination based on disability is illegal – and wrong.

But are you familiar with “regarded as” discrimination? This form of discrimination can be tricky.

“Regarded as” discrimination happens when an impairment is perceived to exist, whether or not it does in fact actually exist, and it is acted upon.

This violates the Americans with Disabilities Act (ADA) and can result in a discrimination claim.

In last month’s HR HotSpot, How to Avoid “Regarded As” Discrimination Clams Under the ADA, Kara Craig, Attorney at Vigilant, offers insight on this often overlooked area of liability for employers.

Here are 5 key takeaways:

1. “Regarded as” discrimination means that a person:

• Has an impairment that does not substantially limit a major life activity.
• Has an impairment that substantially limits a major life activity, only as a result of the attitudes of others toward them.
• Does not have any impairment, but is treated by an employer as having an impairment.

2. About “regarded as” claims:

• Can focus on how others perceive the individual and the effect those perceptions have on the attitudes of others towards the individual’s abilities.
• Adverse action is taken on the basis of an actual or perceived impairment.
• It’s not a question of being disabled. The real question is: did discrimination take place?

3. There are several potential legal claims you may face:

• Failure to hire
• Harassment
• Impermissible medical inquiry

4. Make sure you have a plan in place.

• Implement a centralized decision-making process (with access to counsel.) Best practice: have your HR team own all ADA issues.
• Review recruiting materials, applications and postings.
• Regularly analyze and update job descriptions.

5. Train your supervisors to:

• Never discuss employee medical issues.
• Hand things off immediately to HR.
• Be watchful of workplace harassment and gossip.
• Stay on top of (timely and diligent) performance management

For a more in-depth look at disability discrimination and “regarded as” discrimination, check out the full webinar. Kara shares a lot of great information in an easy-to-understand way.

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Categories: HR and Management Advice, HR Compliance & Labor Laws

Tags: discrimination, how to avoid discrimination claims, regard as discrimination

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