Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.
Court allows obesity as perceived disability. In Frank v. Lawrence Union Free School District, the court has allowed an ADA case to proceed to trial on the “perceived disability” of obesity. A probationary math teacher, weighing 350 pounds, received good evaluations and the recommendations for permanent appointment from his direct supervisors and principals. An assistant superintendent overruled the recommendation, denying further employment. Evidence showed the assistant superintendent had made remarks about the teacher being “too big and sloppy” and that his size and weight would interfere with his duties and were not conducive to learning. These comments about his weight significantly impairing job duties led the court to believe there was a perceived disability under the ADA. The assistant superintendent’s attempted defense, that the teacher had poor performance and ineffective teaching methods, was rejected as pure pretext in light of the uniformly good performance evaluations and positive recommendations of several people who regularly observed him in the classroom (E.D. NY, 2010).
Doctor could not safely treat patients. A doctor, during his post-graduation internship, misdiagnosed patients, prescribed wrong medications, prescribed 10 times the proper dosage of the correct medication and once identified a living patient as being dead. He ignored directions from senior physicians and was “extremely argumentative” when errors were discussed with him. After diagnosis of “possible attention deficit disorder,” the doctor asked for accommodations of a significantly reduced number of patients and a “more compassionate environment.” But the hospital could not reasonably reduce the number of patients below the level required for interns by the Accreditation Council for Graduate Education; a special team of doctors had been formed to provide coaching with his notes/charts and assist when he expressed having difficulties. The doctor’s performance, however, did not improve and he was discharged. He subsequently sued under the ADA for “perceived disability” discrimination. In Shir v. U. of Maryland Medical Systems Corp., the court dismissed the case, finding that the doctor was not a “qualified person with a disability”; he could not perform the work even with accommodation. “No reasonable jury could find that he provided safe and appropriate care for patients,” stated the court (4th Cir., 2010).
