Discrimination against an unknown disability?

published in Oklahoma Employment Law Letter | May 1, 2012

By Kathy R. Neal

In a recent no-nonsense court opinion, an HIV-positive employee lost his Americans with Disabilities Act (ADA) case because he failed to provide any evidence to establish that his employer knew about his HIV status. Let’s take a closer look at the case.

New employee needs accommodation

Terry Hill was hired on June 12, 2006, to work as a total loss specialist for Farmers Insurance Exchange in Oklahoma City. He didn’t miss any days of work during his first four months of employment. Between September and December, however, he was absent 11 days. When he was again absent from work on January 8, 2007, he told Farmers Insurance’s HR adviser that he was suffering from pneumonia. He didn’t inform the HR rep that he is HIV- positive, and he never requested an accommodation for his HIV-positive status. He then filed a claim for short-term disability.

Hill’s physician released him to return to work on a part-time basis (no more than four hours per day) beginning February 26. After some discussion, Farmers Insurance determined that a part-time position wasn’t available and terminated his employment. None of the managers who made the decision to terminate him knew that Hill is HIV-positive.

Hill then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging he was subjected to discrimination on the basis of his disability in violation of the ADA. In his ADA disability questionnaire, he listed AIDS and pneumocystis carinii pneumonia as his impairments.

But we didn’t know he’s disabled

You will recall that to maintain a case of disability discrimination under the ADA, an employee must demonstrate that he (1) is disabled as defined by the ADA, (2) is qualified with or without reasonable accommodation to perform the essential functions of the job he held or desired, and (3) suffered discrimination by an employer or a prospective employer because of that disability. This case took place before the ADA Amendments Act (ADAAA) was enacted in 2008. At that time, being HIV- positive or having AIDS was considered a disability; however, pneumonia wasn’t considered a disability.

Faced with Farmers Insurance’s statements that it lacked any knowledge of his HIV-positive status, Hill responded with an affidavit to the EEOC setting forth his opinion that the company was aware that he has HIV simply from his interaction with coworkers and supervisors. He claimed it was a “logical assumption” on his part. That was a failure of proof because his “logical assumption” is simply an opinion, and his opinion was insufficient to rebut the uncontested evidence that no one at Farmers Insurance knew about his HIV-positive status because he never told anyone. Because Farmers Insurance didn’t know about his HIV status, it couldn’t discriminate on the basis of his disability. That’s a pretty straightforward conclusion.

Additionally, Hill admitted that he never asked anyone at Farmers Insurance for an accommodation for his HIV-positive status. He did ask for an accommodation of his pneumonia; however, because pneumonia wasn’t considered a disability under the ADA at that point, the federal court in Oklahoma City dismissed all his claims against the employer. Had this case been decided under the ADAAA, the court’s decision on the claim that Farmers Insurance failed to accommodate Hill’s pneumonia might have been different. Hill v. Farmers Insurance Exchange, 25 A.D. Cases (BNA) 1806 (W.D. Okla., 2011).

Bottom line

Farmers Insurance was lucky in a couple of ways in this case. First, it appears that Hill was quite honest in admitting that he didn’t tell anyone at the company about his HIV status. Second, his attempt to show that Farmers Insurance should have known he is HIV-positive simply by how coworkers interacted with him fell short of the proof required to remain in court. Bottom line: The employer couldn’t have discriminated against him based on a disability of which it had no knowledge.