Employers, Are You Regarding Those Socially Awkward Employees as Disabled?

By Fiona W. Ong - Shawe Rosenthal LLP

September 30, 2022

Being “on the spectrum” is a pretty common way of referring to individuals with autism (although my husband, a doctor, had never heard of that. Where has he been? Granted, he’s a pathologist, so doesn’t deal directly with live patients, but nonetheless…). Of course, there are varying degrees of severity of symptoms, and some people with social communication or interaction challenges do not actually have autism spectrum disorder. But these symptoms can pose challenges for those individuals in the workplace – and for their employers as well.

A recent case, Evans v. Nashville Film Institute, LLC, provides a good example of those challenges. After beginning a new job, the employee informed his supervisor of his Asperger’s syndrome and requested some “social grace.” He explained that he tended to have a “neutral facial expression,” “failed to adhere to some social norms,” and was more direct than others. A few days later, the employee had a heated interaction with a colleague (both of them yelled), in which he asked for the same accommodations that the colleague would give to students with autism. The colleague allegedly said, “I don’t have to give you any accommodations, you’re an adult.” The employee reported this interaction, further explaining that he was sometimes unable to pick up on social cues and could be socially awkward. He was terminated several days later, ostensibly for multiple incidents of combative behavior with his colleagues. Of course, he sued for violations of the Americans with Disabilities Act (ADA).

As you may recall, the ADA prohibits discrimination against individuals with disabilities and requires employers to provide reasonable accommodations to enable them to perform their essential job functions or enjoy the privileges and benefits of employment, absent an undue hardship. The ADA defines “disability” as (1) “a physical or mental impairment that substantially limits one or more major life activities,” (2) “a record of such an impairment,” or (3) “being regarded [by the employer] as having such an impairment.” The employer here argued that the employee was not disabled because his Asperger’s syndrome, although it might be an impairment, did not substantially limit any major life activity. The employee contended that he was substantially limited in the major life activity of “communicating effectively with others and engaging in social interactions.” (By the way, the ADA regulations provide a list of “major life activities”: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Interacting with others is not part of that list – but the list is not meant to be exhaustive and courts have been rather flexible in what “major life activity” means). However, the employee also conceded that he was “able to interact with people without limitation,” which the Court found to mean that he was not actually substantially limited in interacting with others (assuming that was a major life activity).

So the employer won that round. But there’s another pesky part of the definition – “regarded as disabled.” In other words, a non-disabled person could be incorrectly considered to be disabled – and that is also a violation of the ADA. And that is what the Court found that the employer did here. According to the Court, the employee presented sufficient evidence that the supervisor, knowing of the Asperger’s syndrome diagnosis and following the argument with the colleague (who also yelled, by the way), jumped to the conclusion that the employee had substantial difficulty interacting with others – and illegally fired him for that belief.

This case provides a warning to employers that employees don’t actually have to have a disability in order to be entitled to the protections of the ADA. It is possible for an employer to consider a non-disabled employee to be disabled – and this can be particularly risky when dealing with behaviors that are often associated with mental health disorders. It is critically important for employers to establish that any such disruptive behaviors  violate legitimate workplace standards and that such violations are being treated consistently across all employees.

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