One of the most interesting aspects of disability discrimination law is that it is not necessary to actually have a disability in order to receive protection, so long as an employer considers you disabled.

The Americans with Disabilities Act (ADA) provides 3 ways which an employee may be protected: if they have an actual disability, a record of disability, or are regarded as being disabled. The actual disability and record of disability protects people in the same way that the law protects those who are regarded as being disabled. This is because the law seeks to prevent discrimination in all forms against the disabled.

A recent case reaffirmed the strength of this broad protection. In Butler v. Louisiana Department of Public Safety & Corrections (M.D. La ), a Louisiana state trooper, Butler, was regarded as disabled because his employer allegedly believed he had obsessive compulsive disorder. Butler sued his employer because he was subjected to excessive inquiries into whether he was mentally fit for duty and was denied overtime opportunities. The employer denied the allegations but also claimed that if it did discriminate it was because Butler posed a direct threat. The direct threat defense means that the employee, because of their condition, poses a significant safety risk to the health and safety of the employee or others.

The employer then sought to obtain Butler’s psychiatric records order to prove its direct threat defense. However, the court refused to require Butler to turn over his records. The court explained that it was not necessary to prove whether Butler actually had a mental health disability because an employee may be covered by the regarded as protection of ADA with or without actual disability.

This means that so long as an employer believes an employee has a disability that limits a major life activity; it is irrelevant whether the employee actually has it. Even if the employer claims a direct threat defense, that evidence is limited only to what the employer has actually observed. However, the exception is that if the employee puts his own mental health at issue by claiming emotional or mental distress damages the plaintiff’s emotional health will be up for discussion and review.

If you have been discriminated against by an employer, former employer, or potential employer due to your disability or perceived disability contact a California employment law attorney right away. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. To learn more contact the employment lawyer at Cunningham Law, APC to schedule a free consultation call (951) 213-4786 today.

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