JUNE 2006

JUDICIAL UPDATES

Employee Deserved Opportunity to Prove “Regarded As” Disability Claim

In another disability discrimination case, Gelfo v. Lockheed Martin Corp., the Court of Appeal addressed the “regarded as” type of discrimination claim.

Charles Gelfo (“Employer”) worked for Lockheed Martin Corporation (“Employer”) as a metal fitter beginning in 1980. In September 2000, he injured his lower back at work and filed a worker’s compensation claim. He was laid off in October 2000. Under the terms of a collective bargaining agreement, an employee was placed on a recall list that made him automatically eligible for rehire as a metal fitter or in a related job classification, for up to five years.

By May 2001, Employee had become permanent and stationary, and was released to his position with a lifting restriction. There were no metal fitter positions available at the time, so employee was not recalled. Over the next four to five months, Employee underwent several evaluations and examinations; the doctors, including his own, concluded that Employee would not be able to return to his position as a metal fitter. In late 2001, and going into early the next year, Employee was able to participate in a number of rigorous physical activities that left him feeling fine and were not impeded by his back injury. These included bike rides, long walks and yard work. Employee’s worker’s compensation claim was settled in January 2002; he received a permanent disability rating and an award.

Meanwhile, in mid-September 2001, Employer had invited Employee to participate in a composite training class that was designed to train each participant to be a plastic parts fabricator and assembler. Employee completed the training, performed all of the required physical tasks without any adverse consequences to his back. He received a job offer as a fabricator, contingent upon a medical examination and security clearance. Employer revoked the offer, however, after reviewing his file and noting the medical restrictions that had been imposed by his physician earlier. The restrictions were considered to be incompatible with the physical demands of the fabricator position. After Employee objected and indicated that his back was fine, Employer submitted the matter to its special committee for reviewing situations of employees with disabilities. After reviewing all the available information, the committee determined that Employer could accommodate Employee’s lifting restriction, but could not accommodate his other restrictions so as to allow him to perform all of the essential functions of a fabricator, including bending, stooping, pushing, pulling and climbing.

Employee sued for violations of the FEHA: disability discrimination, failure to accommodate, and failure to engage in a timely, good faith interactive process. The court found that Employee was not “actually” disabled. Employee’s own testimony established that he regularly rode a bike, took long walks, and performed yard work without irritating his back. He failed to establish that his physical condition made difficult the achievement of work or some other major life activity.

However, the court agreed with Employee that the jury should have been asked to consider his claim that Employer “regarded” him as disabled. Under FEHA, a person is “physically disabled” if he is “regarded or treated by” the employer as having, or having had, any condition that makes achievement of a major life activity difficult, or as having a physiological condition that is not presently disabling, but may become so. It was undisputed that Employer’s decision not to hire Employee as a fabricator was based only on its belief that the medical restrictions imposed on him as a result of his lower back injury made him unable to perform the essential functions of the fabricator position. This consistent position was the equivalent of an admission that the company withdrew its offer because it “regarded him” as limited in his ability to work within the meaning of FEHA.

Employers must use caution when evaluating the ability to work of a person who had medical restrictions in the past, but may presently be perfectly capable of performing the essential functions of the position at issue. Although “regarded as” claims are not as common as traditional disability claims, they do exist and must be treated seriously.

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