Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) sued a Sacramento, California, car dealership, alleging it fired an employee because it learned she was undergoing testing for cancer, the agency announced Nov. 10.
• After missing several days of work because of a sudden illness, the title clerk told her supervisor she had been hospitalized, was undergoing testing for cancer and that she planned to return to work in a few days. "Soon after, she received a termination letter which stated that her termination was not performance-related and advised her to 'focus on her health,'" according to EEOC.
• The employer regarded the employee as disabled, in violation of the Americans with Disabilities Act (ADA) the commission alleged. It has requested monetary damages and that the defendants be required to provide training on anti-discrimination laws.

Dive Insight:

"This employee worked successfully for several months but was terminated when her employer learned she was being tested for cancer,” EEOC San Francisco Senior Trial Attorney James Baker said in a statement announcing the lawsuit. "It is illegal for employers to reflexively fire employees after learning of a medical condition."

The ADA protects qualified individuals from workplace discrimination. It also forbids discrimination against a qualified person on the basis of a perceived disability, regardless of whether the person actually has a disability under the ADA. This is known the law's "regarded as" disabled prong.

Because it had become difficult for individuals to establish coverage under the "regarded as" prong, the ADA Amendments Act of 2008 lowered the bar for such claims so that the focus for establishing coverage is now on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," according to the EEOC.

Experts say employers can prevent "regarded as" claims by training managers to ask the right questions when employees come forward with a request or begin to struggle with their duties, starting with, as employment law attorney David K. Fram said at a 2018 conference: "How can I help you?"

Fram said that when an employee tells a supervisor that a medical condition is impeding his or her work, a supervisor should know that the interactive process has been triggered and that, if the fix is simple, allow it and document. However, if an employee's condition is obviously interfering with his or her work, managers have a responsibility to speak up, Fram said. The supervisor can take the employee aside, point out the performance problems, and ask how they can help, he suggested. If the employee refuses assistance the supervisor can document that the problem was addressed and assistance was declined.