Ohio Disability Discrimination Attorney’s Best Answers: Even if I’m not, can I be fired if my employer perceives me as being disabled? Am I disabled under the ADA in order to get an accommodation at work? What should I do if I was fired today for being disabled?
The subject of this bog pertains to discrimination based upon ones disability or perceived disability. Thus, it is first helpful to examine how the terms “disability” and “perceived disability” are defined under Ohio law as they pertain to claims for alleged employer disability discrimination. To begin with, Ohio Revised Code §4112.02(A) provides that:
It shall be an unlawful discriminatory practice:
For any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
Further, ORC §4112.01(A)(13) defines the term “disability” as:
a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.
Thus, the definition of disability under Ohio law includes protection against employer discrimination based upon the employer’s perception of an individual employee having a disability. In other words, an employer can be held liable for discriminating if the employer merely perceives or regards an individual as having a disability regardless of whether the individual in question actually has a physical or mental impairment that substantially limits one or more major life activities.
In order to better demonstrate how Ohio law protects an individual from employer discrimination based upon the existence of the claimant’s actual disability or in an instance where an employer perceives an individual as having a disability, we can look to a recent decision by the Seventh District Court of Appeals in Roghelia v. Hopedale Mining, L.L.C., 7th Dist. No. 13 HA 8, 2014-Ohio-2935, which was decided on June 23, 2014 (appeal not accepted for review by Roghelia, v. Hopedale Mining, L.L.C, Supreme Court of Ohio No. 2014-1333, 2014-Ohio-5567, (Dec. 24, 2014). The facts of this case are as follows.
The employee in this case, Rick Roghelia, sustained a serious injury to his hand and thumb in February 2006 while working for Hopedale Mining. The injury sustained by Roghelia required his left thumb to be surgically amputated. As a result, Roghelia initially missed several months of work. Upon his eventual return to work, Roghelia remained limited in the type of work he could perform. Thus, Roghelia was only able to perform light-duty work – such as operating a shuttle car and performing tasks as a light-duty laborer. Thereafter, in 2007, Roghelia injured hand required a second surgery. Following the surgery, Roghelia was expected to miss two weeks of work. However, after the two weeks had passed, Roghelia called Hopedale Mining in order to report that he would not be able to return to work for an additional week. During the course of that week, Roghelia had a follow up doctor’s appointment and was informed that his absence from work would need to be extend for a few more weeks. Accordingly, Roghelia faxed a doctor’s note to Hopedale Mining to inform them that he would not be able to return to work until the end of the month. However, prior to being able to return to work after his doctor-excused extended absence, Roghelia received a letter from Hopedale Mining stating that his employment had been terminated due to absenteeism.
Keep in mind, as our employment discrimination attorneys have blogged about before, time off from work can be a reasonable accommodation under the Americans with Disabilities Act (“ADA“). (See Disability Discrimination: Medical Leave Can Be A Reasonable Accommodation Under The ADA; How Long Must An Employer Give For Medical Leave?).
In response to his termination, Roghelia filed a complaint against Hopedale Mining for discrimination based on his disability and/or perceived disability, and the matter proceeded to a jury trial.
At trial, in support of their position that Roghelia had been terminated due to absenteeism, Hopedale Mining introduced documented evidence indicating that Roghelia had multiple incidents of absenteeism and that they had also counseled Roghelia about his absenteeism. In addition, and in regard to the relevant period of time for which Roghelia called off of work following his second hand surgery, Hopedale Mining also introduced evidence demonstrating that while Roghelia had, in fact, faxed a valid doctor’s excuse to Hopedale Mining, he did not otherwise call or directly speak to his supervisor about his extended absence. In contrast, and in general, Roghelia introduced evidence of his injury and evidence tending to establish that that following his injury, Hopedale Mining resigned him to light-duty work and ultimately terminated his employment based upon his disability and or Hopedale Mining’s perception that he was now disabled.
After the presentation of all the evidence, the trial court granted Hopedale Mining’s motion for a directed verdict. The Trial Court’s decision in favor of Hopedale Mining was based on the tril court’s findings that: Roghelia had not established that he was disabled; that Hopedale Mining did not regard him as disabled; and that no reasonable jury could find that Hopedale Mining’s reason for terminating Roghelia was based on a perceived disability and could only conclude that Roghelia violated the employer’s absenteeism policy. Thus, based on the trial court’s directed verdict for Hopedale Mining, the jury was never given the opportunity to decide these issues or otherwise find in favor of either Roghelia or Hopedale Mining.
In response to the trial court’s directed verdict, Roghelia appealed the matter to the Seventh District Court of Appeals. While the Court of Appeals also decided other issues presented by Roghelia, the discussion herein focuses on the trial courts finding that that no reasonable jury could find that Hopedale Mining’s reason for terminating Roghelia was based on a perceived disability and could only conclude that Roghelia violated the employer’s absenteeism policy.
On appeal, Roghelia, asserted that the issues of whether his disability and/or perceived disability was a factor in his termination, and whether Hopedale Mining’s reasoning for terminating his employment were legitimate or pretextual, should have been submitted for decision by the jury.
In order to determine the outcome of this appeal, the Seventh District Court of Appeals analyzed the burdens of proof required to be made by both the plaintiff-employee and the defendant-employer in a perceived disability discrimination case. In order to prove a claim for perceived disability discrimination, the plaintiff-employee must first establish a prima facie case of disability and/or perceived disability discrimination. If successful in doing so, the burden then shifts to the employer to set forth some legitimate, nondiscriminatory reason for the adverse employment action taken – in this case termination. Lastly, if the employer succeeds in presenting a nondiscriminatory reason for the adverse action taken, the employee must then demonstrate that the employer’s stated reason was a pretext for impermissible discrimination. In this regard, in order to establish pretext, the plaintiff must demonstrate that the employer’s offered reason for the adverse action either: (1) had no basis in fact; (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.
Upon reviewing the entire trial court’s record of the case, The Seventh District Court of Appeals found as follows:
Viewing this evidence in the light most favorable to Roghelia, we cannot conclude that reasonable minds could only reach one conclusion and that conclusion would be adverse to Roghelia. Instead, we hold that this is an issue best left to the trier of fact. The evidence could lead a reasonable person to conclude that Roghelia was terminated based on his excessive absenteeism, which was a legitimate nondiscriminatory reason for the termination. Or, a reasonable person could find that the absenteeism reason was pretext. Thus, the trial court incorrectly took this matter out of the hands of the jury. This assignment of error has merit.
In other words, the Court of Appeals held that the determination of whether Hopedale Mining perceived Roghelia as having a disability, and whether Roghelia’s termination was based on that perception or if it was based on Roghelia’s alleged violation of Hopedale Mining’s absenteeism policy were all questions that should have been left to the decision of the jury. Thus, the Seventh District Court of Appeals held that the trial court erred by granting Hopedale Mining’s motion for a directed verdict, and, accordingly, reversed the judgment of the trial court and remanded the matter for a new trial.
Thus, as the decision in Roghelia v. Hopedale Mining, L.L.C. demonstrates, the ADA as well as Ohio’s disability and perceived disability discrimination laws can, and will protect employees in such instances.
Both Ohio and Federal Law – as provided by ORC §4112.02 and the ADA, respectively, provide legal protections against similar unlawful discriminatory employment practices. If you find yourself the victim of such an instance of unfair or discriminatory employment practices, you should seek the legal counsel of a qualified disability discrimination lawyer. Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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