Mowery Youell & Galeano, Ltd.
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Disability Discrimination - ADA Limitations for "Regarded As"

Dennis Breen v. Infiltrator Systems (6th Cir. March 24, 2011), Case No. 10-5013: With the new regulations to the Americans with Disabilities Act, disability discrimination claims are increasing.  In a recent ADA case, the 6th Circuit reviewed a Plaintiff's claim that his employer regarded him as disabled. Breen was employed as a manager. In January 2005, his supervisor conducted a performance review and noted that Breen needed to show improvement in his relationships with customers, employees, his attitude and do a better job of rotating inventory. In May 2005, Breen notified his supervisor that he had Hepatitis C. Although his supervisor asked if Breen needed to take a leave of absence, Breen declined. Breen noticed that his co-workers talked about his health condition and one co-worker referred to Breen as a "f----."  Over the next several months, Breen's managers talked with Breen about not following its First In First Out policy. He received a written reprimand for refusing to work in the company's customer services department. Management also heard that Breen made open derogatory comments about his co-workers and told one of them that he was a "cancer." After a discussion with his managers, Breen decided to take medical leave to begin treatment for his Hepatitis C. When Breen returned to work, he was discharged.

Breen sued his employer in state court under its civil rights act. After the employer removed the case to federal court, it moved for summary judgment which was granted by the district court. On appeal, Breen argued that he demonstrated that his employer "regarded" him as disabled because his co-workers made negative comments that he was gay because of his Hepatitis C. The court of appeals rejected this argument because such comments did not suggest that Breen was regarded as substantially limited in any major life activity as required under the ADA. Further, Breen acknowledged that no one in management made any negative comments about his Hepatitis C. Finally, Breen could not demonstrate that his employer regarded him as disabled by contending that management's awareness of his condition gave rise to the level of awareness or belief that Breen was substantially limited in a major life activity.

By: Merl H. Wayman

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