Evidence on inability to perform range of jobs missing in mechanic's case

Under the ADA of 1990, an employee asserting a "regarded as" disabled theory of discrimination involving the major life activity of working must show that his employer considers him unable to work in a class or range of jobs other than his own.

Case name: Dillon v. Mountain Coal Co., LLC, et al., No. 08-1004 (10th Cir. 06/23/09).

Ruling: The 10th U.S. Circuit Court of Appeals affirmed judgment for a mining company in a former employee's Americans with Disabilities Act suit.

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What it means: Under the ADA of 1990, an employee asserting a "regarded as" disabled theory of discrimination involving the major life activity of working must show that his employer considers him unable to work in a class or range of jobs other than his own. If the employee cannot show that his employer has a wide array of jobs available, then providing statistics and examples from a variety of employers in the geographic area and industry may suffice.

Summary: An underground maintenance mechanic for a mining company injured his back and neck when a machine fell on him at work. He took leave and was cleared to return to work with some permanent lifting restrictions. The company refused to return him to work until he had no medical restrictions. The mechanic sued under the ADA. Even though a jury found in favor of the mechanic, the District Court ruled in favor of the company. The 10th Circuit affirmed. The 10th Circuit held that the mechanic failed to show that the company regarded him as "substantially limited" in the major life activity of working. Although he established that the company did not consider him capable of working in its mines, he did not show that it believed he was incapable of working at any other mine or in a range of jobs within the industry.

The 10th Circuit rejected the mechanic's argument that the company's "no restrictions" or "100 percent healed" policy supported his regarded as disabled theory. The 10th Circuit noted that he did not provide evidence or statistics regarding the number and types of jobs requiring similar skills, training, knowledge or abilities, as required by federal law or supporting mining jobs as a class of jobs. He also did not produce evidence that the mine had a broad range of jobs that utilized different skills and abilities than his job. The 10th Circuit upheld the determination that the mechanic did not demonstrate his employer considered him unable to work under the ADA.

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August 21, 2009

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