How can an individual without an actual disability still have an ADA claim?

It happens when an individual—a job applicant or current employee—is “regarded as having a disability” under the Americans with Disabilities Act.

I’ll give you an example.

Let’s say you hire someone online and sight unseen for a customer-facing position like a cashier or a salesperson at a department store. That employee reports to work on their first day, and you see for the first time an unsightly, impossible-to-miss, jagged scar running down the side of their face. Although it looks pretty bad — perhaps the result of a major surgery — the scar is entirely cosmetic. It does not substantially impair any major life activity. So they do not have an actual disability. However, the scar is jarring, and you’re concerned that customers will react negatively. So, you pivot and decide to employ the individual in a stock room of your retail establishment rather than have them engage with customers.

In the situation I’ve described above, the employer may have regarded the individual as having a disability. Will that individual have a viable ADA claim? Maybe. However, these types of claims can lead to actual lawsuits. I’ll tell you about a recent one that the U.S. Equal Employment Commission filed the other day.

Yesterday, the EEOC announced a lawsuit against a staffing company based on allegations that it illegally discriminated against a job applicant when they rescinded his job offer because they regarded him as having a disability.

Specifically, the EEOC alleges that the defendant rescinded a welding applicant’s job offer after learning that he had injured his knee two years prior. According to the complaint, the staffing company was helping a construction company hire welders. An applicant applied for the job and was hired subject to passing a physical examination, which he did. The welding test involved climbing ladders and crouching and crawling on beams.

According to the EEOC, the applicant disclosed in a post-offer medical questionnaire a little bit later that he had previously been treated for a knee injury he suffered while working a prior job. However, the individual indicated he could perform the essential duties of the welder job and did not require a reasonable accommodation. The individual did not state that he had an active or permanent disability. He even provided a letter from his physician clearing him to work in response to further inquiries about the injury from his new employer.

The EEOC claims that although the individual was seemingly cleared to work, the staffing company deemed him “too risky” and rescinded the job offer.

“The ADA prohibits discrimination against an applicant for employment because of a disability, whether it is actual or perceived,” noted the EEOC in its press release. The company “violated the ADA by rescinding a job offer to a qualified applicant because they regarded him as having a disability.”