Sensitivity to Electromagnetic Voltage Not a “Disability” Under the Americans With Disabilities Act
The Seventh Circuit Court of Appeals affirmed the grant of summary judgment dismissing a former employee’s claim that he was terminated because of his purported disability, “sensitivity to electromagnetic voltage.” Hirmiz v. New Harrison Hotel Corp., Docket No. 16-3915 (7th Cir. Apr. 6, 2017). The Court held that “sensitivity to electromagnetic voltage” was not a condition protected by the Americans with Disabilities Act (“ADA”) because it was not an impairment that “substantially limited” any of his “major life activities.” The case was limited to that issue under the ADA because claimant did not try to establish protection by other ADA protections, i.e., a “record” of an impairment or being “regarded as” disabled by the employer.
This decision, particularly the Court’s note about the “regarded as” prong of the ADA definition of protected conditions, should serve as a reminder to employers that, even though an employee may not be suffering from a condition that technically is covered by the ADA, an employer’s perception that an employee has a disability can be sufficient for a disability claim to survive dismissal. While the plaintiff in this particular case did not put forth evidence that he was “regarded” as disabled, the court nonetheless considered that possibility in determining whether dismissal was appropriate. The “regarded as disabled” prong of the ADA often is implicated in cases where an employee is discharged because of perceived psychological issues (even if the underlying psychological issue is not diagnosed or does not otherwise “substantially limit a major life activity”). Accordingly, employers should avoid making such determinations and instead base all employment related decisions on legitimate business reasons unrelated to any actual or perceived disability and appropriately obtained medical documentation.