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    Sixth Circuit clarifies how to establish a “regarded as” ADA claim and revives former employee’s suit with “smoking gun” email

    The Sixth Circuit Court of Appeals recently reversed a district court’s summary judgment in favor of Maryville Anesthesiologists (MA). A former MA employee, Paula Babb, alleged that MA violated the Americans with Disabilities Act (ADA) when it fired her because it thought she was visually disabled, while, in reality, she is not.

    In 2008, Congress amended the ADA to provide that if an employee is discharged because of an actual or perceived physical or mental impairment, “whether or not the impairment limits or is perceived to limit a major life activity,” the employee has demonstrated a “regarded as” ADA claim. Thus, the ADA prohibits employers from discharging employees not only when they are disabled but also when the employer incorrectly thinks of or “regards” the employee as disabled.

    In Paula Babb v. Maryville Anesthesiologists PC, the Sixth Circuit clarified that for a “regarded as” ADA claim, employees need to only show that their employer “believed they had a ‘physical or mental impairment’” and took an adverse action as a result.

    The Sixth Circuit also concluded that there was a genuine issue of a material fact regarding MA’s stated reasons for terminating Babb, which it alleged were due to Babb’s clinical errors. However, hours before Babb’s termination, another employee wrote an email “essentially stating that Maryville was firing Babb because of her impaired vision.”

    The Sixth Circuit observed that “[i]f this kind of smoking gun evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”

    This decision is a reminder that employers may violate the ADA not only for discriminating against employees on the basis of a disability but also for taking adverse employment actions based on a belief that an employee has a disability (whether they do or do not). The case also highlights that stray company emails and texts can create issues of fact, which can preclude summary judgment for an employer.

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