“The Butter Shave” – Disability Discrimination

In a job interview with PlayNow, company boss Mr. Thomassoulo mistakenly believes that George’s limp from the injury he sustained in “The Summer of a George” is actually a permanent disability. Must PlayNow provide George with proper accommodations because he is “differently advantaged?” If George were to be denied the position, could he sue PlayNow for discrimination?

The answers to both these questions are obviously no because George is not legally considered to have a disability. The American Disabilities Act of 1990 covers those who have “a physical or mental impairment that substantially limits one or more major life activities.” While George would try to argue that he “has always been handicapped,” the law would disagree. George is not protected by the ADA. But let’s imagine that George’s limp was actually a permanent condition. What kind of protections could he recieve?

The American with Disabilities Act of 1990 protects Americans with disabilities from employment discrimination, and also requires that (certain) employers provide reasonable accomodations for those employees with disabilities. George’s brief tenure at PlayNow takes place in 1997, so the law is in effect at the time of Mr. Thomassoulo’s predicament.

Had George not been hired by PlayNow, he could have tried to file an employment discrimination claim under the ADA. To proceed on this claim, George would have to show:

1. That he is disabled under the ADA
2. He was qualified and applied for the position
3. Despite his qualifications he was rejected
4. After being rejected the position remained open and the employer sought out prospective employees that had the same qualifications as George.

Can George prove this? Well he could easily show that he applied for the position and if the position remained open if he were to have been rejected. And as mentioned above, although George isn’t actually disabled according to the ADA, had his limp been permanent then he could probably argue that he is covered by the ADA. The final question is whether he is actually qualified for the position? George’s resume would certainly demonstrate his qualifications, but ultimately this would be a fact based decision for a court to determine whether George was really qualified for the position.

If George could satisfy each of these elements this then he would successfully have demonstrated a prima facie case of employment discrimination against PlayNow. PlayNow would then have the chance to show that it’s decision was actually based solely on legitimate employment qualifications. This may not be too hard, as George really isn’t qualified to do anything.

George then would have a final chance to counter PlayNow by proving that those “legitimate” reasons were merely a pretext for discrimination. Knowing George, this may not be beyond his expertise.

Mr. Thomassoulo may actually have anticipated this possibility, and hired George in order to avoid a potential lawsuit. The way he speaks to George about his “uh, advantages” is quite nervously, signalling that he may be fearful of a potential lawsuit. The rest of the employees are all very nice and accommodating to George, and the company may have instructed them to act this way in order to avoid a harassment lawsuit. And, as mandated by the ADA, PlayNow provides George with more than necessary accommodations – his own private bathroom with a toilet so high that George feels like a perching gargoyle, a motorized seat lift so George need not take the stairs, and even a motorized scooter for him to drive instead walk. PlayNow has certainly fulfilled their obligations under the American with Disabilities Act, and then some.

Even though George is not covered by the ADA, he may have still accidentally benefited from it. Under the ADA, employers are not allowed to ask about an applicant’s disability, or force a potential employee to take a medical exam. Had Mr. Thomassoulo been able to ask George about his “advantages” or ask him to take a medical exam, he would have quickly discovered that George was only using a cane temporarily. And while this may have been a sad story for George, it would have been much funnier for Mr. Thomassaoulo.