Most employers know they can’t discriminate against employees with disabilities. But here’s what many don’t realize: you can also face liability for discriminating against someone you think has a disability—even if the person doesn’t actually have one.
This concept, known as “regarded as” discrimination, is built right into the Americans with Disabilities Act (ADA) and similar state laws. And it’s a trap that well-meaning employers can fall into (and that smart Plaintiff’s lawyers can exploit).
The Three-Pronged Definition of Disability
Under the ADA, someone is considered to have a disability if they meet any one of three criteria:
- They have a physical or mental impairment that substantially limits a major life activity,
- They have a record of such an impairment, or
- They are “regarded as” having such an impairment.
That third prong is lesser known and thus is a place where employers may get into trouble. The law protects people from discrimination based on perceived disabilities, whether those perceptions are accurate or not.
How “Regarded As” Claims May Develop in the Real World
Let’s walk through a scenario to illustrate this risk.
Meet Jane, a software developer who struggles with social interactions. She’s awkward in meetings, has trouble reading social cues, and prefers working alone. Her colleagues start whispering that she’s “probably on the spectrum”—and even typing these speculations into their Teams chats. Managers are heard describing Jane as having “social issues” and questioning whether she’s a “good fit.”
When Jane’s performance review comes around, she gets dinged for “interpersonal skills” and “team collaboration.” Her coworkers complain about her communication style and refusal to make eye contact. Eventually, she’s terminated for being a “poor cultural fit.”
But Jane doesn’t actually have autism spectrum disorder. Maybe she is just introverted, socially anxious, or simply has a different communication style. But if her employer made employment decisions based on the belief that she was autistic, she could have a valid “regarded as” discrimination claim. And even if the employer did not discriminate (i.e., she was truly socially inappropriate or was a poor performer), evidence that she was regarded as autistic would represent a serious risk in a potential lawsuit (or as we lawyers call it, a “bad fact”).
What to Watch Out For.
“Regarded as” cases may develop from seemingly innocent workplace communications or typical office gossip:
- Manager emails: “I think Bob might have ADHD—he can’t seem to focus in meetings and always interrupts me.”
- Performance reviews: Comments about “attention issues” or “social difficulties.”
- Witness testimony: Coworkers who may admit that they thought their colleague had a disability, or that they heard supervisors speculate about a person’s possible mental health issues.
- Internal Communications: Records of speculation or petty gossip about someone having a mental health disorder. Sometimes these types of comments are not said seriously, or represent workplace “venting”—but words on a page lack context and a jury may not get the joke or forgive the unkindness.
Even well-intentioned attempts to be understanding can backfire. When in doubt, don’t say anything about someone’s health. For example, maybe a coworker complains and the manager reassures them that “it’s ok, I think he’s on the spectrum and didn’t mean to be rude.” This would create evidence of a perceived disability.
Why This Matters.
A person doesn’t have to actually be disabled to bring a claim under the ADA. Employers can face liability even for perceived disabilities. Defending an ADA claim can be costly, time-consuming, and distracting for your employees and business leaders.
Practical Steps to Protect Your Organization
- Focus on job-related criteria only. When evaluating performance, stick to specific, measurable job requirements. Instead of noting that someone has “social issues,” document specific examples: “Failed to respond to client emails within required 24-hour timeframe on three occasions.”
- Train managers on appropriate language. Supervisors should never speculate about employees’ medical conditions, even privately. Comments about someone potentially having ADHD, autism, depression, or other conditions should be off-limits.
- Document performance issues objectively. If an employee struggles with tasks, describe the specific behaviors and their impact on work. Avoid medical or psychological terminology.
- Handle accommodation requests properly. If someone asks for accommodations but doesn’t explicitly mention a disability, engage in the interactive process without making assumptions about their medical status.
- Review policies and practices. Ensure your performance evaluation systems, disciplinary procedures, and termination decisions are based on legitimate, job-related factors rather than perceptions about employees’ capabilities or characteristics.
The Bottom Line
“Regarded as” discrimination claims can be just as expensive and damaging to a business as traditional disability discrimination cases. The key to avoiding these claims is surprisingly simple: focus on what employees do, not on what you think might be wrong with them.
When you catch yourself or your managers making assumptions about why someone behaves a certain way, step back and ask: “What specific job-related issues can we document?” Stick to observable behaviors and measurable outcomes, and leave the medical speculation out of it entirely.
Remember, ADA compliance isn’t always easy. Contact me or another member of the Fortis employment law team if you run into any tricky situations, and to ensure you’re keeping up with best practices. By keeping your employment decisions grounded in legitimate business reasons, you’ll protect both your employees and your organization from this sometimes overlooked legal risk.
Disclaimer: This post is not legal advice, and individual circumstances may differ. Nothing in this post is intended to, or does, create an attorney-client relationship.
