The Americans with Disabilities Act protects “persons who experience discrimination because of a current, past, or perceived disability—not because of a potential future disability that a healthy person may experience later.” Equal Employment Opportunity Comm. v. STME, LLC, No. 18-12277, 2019 WL 4314998 (11th Cir. Sep. 12, 2019).
Kimberly Lowe was a massage therapist with Massage Envy in Tampa, Florida. In September 2014, Lowe asked for time-off so that she could visit her sister in Ghana, a country in West Africa. Three days before her trip, one of Massage Envry’s owners told her that she would be fired if she proceeded with her travel plans. The owner “was concerned that Lowe would become infected with the Ebola virus if she traveled to Ghana and would ‘bring it home to Tampa and infect everyone.'” When Lowe refused to change her plans, the owner terminated her employment. Although there was an Ebola outbreak in West Africa, there were no occurrences in Ghana. Lowe traveled to Ghana and did not contract Ebola.
The United States Equal Employment Opportunity sued for Lowe and claimed that she was “regarded as” disabled under the ADA because of the owner’s Ebola fears. A Florida trial court granted a motion to dismiss filed by Massage Envy, finding that Massage Envy did not perceive Lowe as having Ebola when she was fired. The Eleventh Circuit affirmed.
The Court found four reasons to conclude “that the disability definition in the ADA does not cover this case where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of overseas travel.” First, the Court read the ADA’s “regarded as” language in conjunction with the ADA’s “actual disability” prong, which requires that a disability exist at the time of an adverse employment action. Second, the Court noted that the ADA protects employees who are terminated “because of an actual or perceived physical or mental impairment.” Thus, an employer “does not fire or otherwise discriminate against an employee ‘because of’ a perceived physical impairment unless the employer actually perceives that the employee has the impairment.” As a result, the “regarded as” prong does not “extend to an employer’s belief that an employee might contract or develop an impairment in the future.”
Third, even though the Court was required to interpret the ADA broadly in favor of coverage, it could only “conclude that the terms of the ADA protect anyone who experiences discrimination because of a current, past, or perceived disability—not a potential future disability.” Fourth, the Court noted that the EEOC’s own interpretive guidance for the ADA found that predisposition to developing an illness or disease is not a physical impairment. “If a predisposition to developing a disease in the future is not a physical impairment, by analogy, we do not see how Lowe’s heightened risk of developing the disease Ebola in the future due to her visit to Ghana constitutes a physical impairment either.”
The Eleventh Circuit’s opinion is a clear victory for employers. Nevertheless, the STME case should not be read as giving carte blanche authority to terminate employees based upon a fear of a future medical condition. Indeed, the key word in the Eleventh Circuit’s holding might be “healthy.” The ADA protects “persons who experience discrimination because of a current, past, or perceived disability—not because of a potential future disability that a healthy person may experience later.”
Some employers have “eggshell” employees who are prone to injury. If an employer combines knowledge of past injuries with fear of future injuries to justify an employment action, STME might not provide a defense to an ADA claim.