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EEOC Targets “Perception Of” Discrimination under ADA

October 29, 2014
Source: Lexology

Why it matters: The Equal Employment Opportunity Commission (EEOC) recently provided a reminder to employers about the dangers of violating the “perception of” disability provision of the Americans with Disabilities Act (ADA). According to a new federal court complaint filed by the agency, a North Carolina restaurant refused to hire a busboy when the owner noticed that one of his arms was amputated above the elbow. In addition to injunctive relief, the lawsuit seeks back pay as well as compensatory and punitive damages for the would-be busboy, who “was not hired because of assumptions made about his abilities based on his arm amputation,” EEOC regional attorney Lynette A. Barnes said in a press release about the action. “Employers must be careful not to violate federal law by making assumptions about people with disabilities.”

Detailed Discussion Matthew Botello applied for a position as a busboy in October 2013 at Sushi at the Lake restaurant in Cornelius, North Carolina. At the time, Botello worked as an expediter at a different restaurant, a position that included bussing duties. Botello – whose left arm was amputated above the elbow in November 2010 – could perform the essential functions of his job with or without a reasonable accommodation, the EEOC said.

Botello received a phone call instructing him to report for work at Sushi at the Lake the following day. But when he showed up – not having met or interviewed anyone at the restaurant – the owner “gestured at his left side and told Botello that he could not bus tables because he only has one arm,” according to the EEOC complaint.

Although Botello assured the owner that he could perform the job and had experience bussing tables at another restaurant, the owner remained unconvinced. Botello offered to purchase a small cart at his own expense to address the concerns of the owner. “Despite assurances from Botello that he could do the job with or without an accommodation, [the owner] refused to hire Botello,” the EEOC claimed.

The defendant failed to hire Botello because the owner “perceived Botello as having a disability within the meaning of the ADA,” the agency said. “Specifically, [the restaurant and the owner] refused to hire Botello as a busser based on [the] erroneous belief that Botello could not perform the busser job duties because of his arm amputation.”

Such an unlawful employment practice violated the ADA, according to the EEOC complaint, which sought a permanent injunction from disability discrimination and a mandate for the restaurant to institute and carry out “policies, practices, and programs” which provide equal employment opportunities for qualified individuals with disabilities or persons regarded as disabled.

As for Botello, the agency requested back pay with prejudgment interest, compensation for past and future pecuniary and non-pecuniary losses (including emotional pain and suffering and humiliation) as well as punitive damages.

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