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7th Circuit Affirms Denial of “Electromagnetic Sensitivity” Discrimination Claim in Not-So-Shocking Decision

Earlier this week,  a new season of the TV drama, Better Call Saul premiered, and with it came the return of the character, Charles “Chuck” McGill.  Chuck, a brilliant lawyer and named partner at his esteemed law firm, suffers from “electromagnetic hypersensitivity” – which causes him to confine himself to his home without electricity and surrounded by endless sheets of aluminum, and causes others to question his mental state.

Such is the malady of a former hotel front desk clerk, who sued his employer claiming discrimination based on his disability of “long-term exposure to electromagnetic voltage.”  Hirmiz v. Travelodge Hotel Corp., No. 15-C-6874, 2016 BL 318223, at *2 (N.D. Ill. Sept. 27, 2016).  On April 6, the 7th Circuit upheld the decision denying the claim because the plaintiff could not establish that he suffered from a disability under the Americans with Disabilities Act (“ADA”).  Hirmiz v. New Harrison Hotel Corp., No. 16-3915, 2017 U.S. App. LEXIS 5978 (7th Cir. Apr. 6, 2017).

The plaintiff, Hirmiz, began his employment with Travelodge Hotel in Chicago in May, 2007 as a night auditor/front desk agent.  During his employment, Hirmiz received several write-ups for various incidents of misbehavior.  In February, 2015, a fight between guests ensued while Hirmiz was sleeping in the lobby, away from his post.  He subsequently failed to report the fight properly or call for police or paramedics.  The hotel terminated Hirmiz for these violations and insubordination.

Hirmiz sued the hotel under the ADA, claiming the hotel discriminated against him based on his disability and failed to accommodate his disability.  Both of these claims turned on whether he was “disabled” – and therefore protected – under the ADA.

In order to be “disabled” under the ADA, an individual must have (1) a physical or mental impairment that substantially limits one or more “major life activities,” (2) a record of such impairment, or (3) is regarded as having such an impairment.  42 U.S.C. § 12102(1).  The ADA defines “major life activities” as including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  42 U.S.C. § 12102(2)(A).

Hirmiz claimed that his condition caused him to suffer from flu-like symptoms such as sneezing, a runny nose, headaches, dizziness, and numbness.  Hirmiz, 2016 BL 318223, at *3-4.  To support his claim, Hirmiz offered evidence that he filed a complaint in 2013 with the Occupational Safety and Health Administration (which conducted an inspection of the hotel and concluded there was no electromagnetic exposure above safety levels).  He also produced notes of maintenance requests pertaining to his own complaints, including an “electromagnetic shock” at the front desk and “heavy static fields” causing numbness in his legs.  Id. at *4.  The district court held that this evidence did not support his claim that he suffered from a disability, as the ADA defines it.

The 7th Circuit affirmed, agreeing that Hirmiz failed to establish that his medical condition substantially limited any of his major life activities.  Hirmiz, 2017 U.S. App. LEXIS 5978, at *2-3.  Additionally, the Court commented on the medical community’s debate over whether electromagnetic sensitivity is physical or psychological in nature, noting that if it is psychological only, it may not constitute a disorder that would entitle an individual to the protections of the ADA.  Id. at *2.

My take-away?  Electromagnetic sensitivity may make for some good TV drama.  But as of yet, it does not appear to make for a good case of ADA protections.

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