discrimination based on a perceived disabilty

Diabetic removed from position

Your query isn't entirely clear, but I will assume that the airline has decided not to permit you to resume your duties in any position. You haven't been terminated, but you are also not working in any position. Any pay you are drawing consists of accumulated leave.

It also sounds as if you have read up at least a little about the Americans with Disabilities Act. The ADA defines the term disability in three ways: (1) you actually have a disability; (2) you have a record of disability but no longer have it; and (3) you don't have a disability but your employer thinks you do.

There is more to the definition. Generally, the disability, whether actual, a record of or perceived, must be such that it limits you in a major life activity. Exacting what constitutes a major life activity isn't entirely clear, but it would include things like walking or seeing. So, if you are in a wheelchair, it is a fairly safe bet you are considered disabled. If you are completely blind, you should be considered disabled.

But the ADA has been read by the courts in a very narrow way, so that I would have doubts that any disabling condition is a disability under the ADA, unless the disability is so bad that it essentially makes you unable to work, in which case the employment provisions of the ADA aren't going to help you anyway.

Under the ADA, whether you would be considered a person with a disability would be problematic at the very least. I have seen some ADA cases saying diabetes is not an actual disability, but this determination is supposed to be done on a case by case basis, so that conceivably, but doubtfully, your specific condition might be considered an actual disability.

Up until recently, most cases dealt with the actually disabled definition. Only now are cases beginning to address what it means to have a record of disability or the perceived to be disabled. So far the caselaw is murky, so that exactly what needs to be proven to when on a claim of record or perception of disability is unclear. But it still looks that under the ADA it is still going to be an uphill battle just to get a determination that you are covered by the law.

Fortunately, you are covered by the New York State Human Rights Law. HRL includes all of the definitions of disability that the ADA has, but adds one more, one that helps you a lot. You are considered as disabled if you have a diagnosis. You obviously have been diagnosed with diabetes, so that you are covered by the law.

Once you have been found to be a covered employee, things get easier. It seems clear that you are on non-duty status for no other reason than your diabetes. That would be illegal unless the employer can show that there is a fairly definite and immediate safety concern. In other words, it is not enough for an employer to say that you might as some indefinite time in the future have another episode.

Even assuming that the employer had a legitimate reason for putting you on non-duty status, there is still the question of whether you could do your job with accommodation. Even under HRL, there is a duty to reasonably accommodate.

What is a reasonable accommodation depends in the specifics of your job and your situation. I could probably help you with developing a reasonable accommodation, but you also would probably need the help of other professionals, like your doctor, in identify a reasonable accommodation.

Accommodation is generally something which is best negotitated. You may need to be creative and flexible about it.

I do not know of any law that gives you any right to hold you job or a temporary substitute for 60 days.

posted by David M. Lira  |  Oct 19, 2001 10:24 AM [EST]