The Americans with Disabilities Act (ADA) is most frequently associated with protecting individuals with actual disabilities and requiring employers to make reasonable accommodations (that are not undue hardships) to enable those individuals to perform the essential functions of their jobs. What is sometimes overlooked (or possibly forgotten) is that the requirement of an “actual” disability is only one leg of the ADA triangle: protections are also afforded individuals who have a record of a disability and those individuals who are perceived or “regarded as” having a disability.
A “regarded as” claim is what formed the basis of a lawsuit brought by Christopher Gibbs after he was rejected for a job as a police officer by the City of Pittsburgh. Reversing the dismissal of his claim, the Third Circuit returned the case to the trial court for discovery and, possibly, trial. Gibbs v. City of Pittsburgh, 2021 U.S. App. LEXIS 6145 (3d Cir. Mar. 3, 2021).
The case was reviewed on the granting of a motion to dismiss. This means that the facts alleged were taken in the light most favorable to the plaintiff. According to the complaint, Gibbs applied for a job as a Pittsburgh police officer. He aced the written test and got a conditional job offer. But, like many law enforcement jobs, Pennsylvania law required that he be evaluated by a licensed psychologist and found to be psychologically capable of exercising “appropriate judgment or restraint in performing the duties of a police officer.” 37 Pa. Code § 203.11(a)(7). Of the three psychologists who interviewed him, two said he was unfit to serve. He never got the final offer.
Gibbs, it seems, had misbehaved as a child (the court left what that means to one’s own imagination). He was treated for ADHD. Gibbs believed that once the psychologists learned of his ADHD diagnosis, they reflexively rejected him. They never explored whether his ADHD would interfere with the job. Had they done so, they would have learned that his ADHD was under control and that five other police departments found him mentally fit and had employed him. Moreover, Gibbs never misbehaved in those jobs or when he served in the Marines.
Gibbs claimed that Pittsburgh hired other applicants with similar childhood “misbehavior” in their past, but when the “misbehaviors” were not caused by ADHD. Gibbs sued, claiming that he was denied the job due to anti-ADHD bias. Notably – and this is important – all Gibbs had to do to state an ADA claim was plausibly allege that: (1) he was disabled; (2) he was qualified; and (3) he suffered discrimination.
The district court granted the City’s motion to dismiss, holding that he was not qualified to be a Pittsburgh police officer because “[p]assing [the psychological test] was a ‘prerequisite,’ regardless of how able Gibbs was to perform the essential functions of the job.” Gibbs appealed.
The Third Circuit reversed and remanded for discovery, stating it this way: “Governments have a right to ensure that their policemen are mentally fit. But they may not use psychological testing as a cover to discriminate. . . . . Gibbs has plausibly alleged that the psychologists discriminated against him. If he is right, Pittsburgh is liable for relying on them. And the city cannot dodge liability by labeling the psychologists’ approval as a job qualification.”
What’s the take away here? There are two, I think.
First, employers need to be vigilant in making sure they do not just rely on third parties to be their decision makers. Some management review of the underlying rationale for a third party’s recommendation should be involved; as the City learned here, it’s the employer and not the third party who will pay the price.
Second, the City’s argument that the alleged intentional discrimination was actually a “job qualification” is a hard one to make right out of the box. Not to get too far down this rabbit hole, but unless there is a “bona fide occupational qualification” (BFOQ) argument available – something the ADA does not recognize – stating that intentional discrimination was in fact the reason for an adverse action is a loser. EEOC guidance does state that an employer can defend the use of a qualification standard that screens out a disabled individual because the standard is “job related and consistent with business necessity,” but the City will need to wait until discovery concludes to try that defense on for size.