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Scott Wagner & Associates, P.A. Florida Labor & Employment Lawyer
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11th Circuit Holds an Employee Must Show They Are Disabled

Wetherbee v. Southern Nuclear Operating Co. (June 2014) involves a prospective employee’s appeal of the district court’s granting of summary judgment regarding claims of discrimination under the Americans with Disabilities Act, § 12112(d)(3)(C), and alleged misuse of information obtained during a medical evaluation. Previously, the 11th Circuit affirmed in part the district court’s grant of summary judgment in favor of the employer, but remanded to address the ADA claim.

Wetherbee applied and received a conditional job offer for a systems engineer position with the employer. The employer required passage of a medical evaluation. During the evaluation, Wetherbee informed the company he suffered from bipolar disorder, but records showed he did not take medicine to control, was not seeing a psychiatrist, and had no experienced episodes for over 6 years. The employer’s medical team determined he could only be hired if he met compliance with a medication regime and restriction from working on “safety sensitive systems and equipment” for one year. However, the position itself required work on safety sensitive systems and equipment, and therefore, the employer rescinded the offer.

On appeal, the 11th Circuit only addressed whether the American with Disabilities Act § 12112(d)(3)(C) required Wetherbee to provide he was disabled.  In affirming the district court, the 11th Circuit held an individual seeking relief under the Act must demonstrate he is a qualified individual with a disability, and declined to extend its prior holdings – that disability status is not an element of §12112(d)(2) and (d)(4)(A) claims regarding prohibitions of medical examinations to determine whether an applicant has a disability and/or confidentiality of those exams – to claims under §12112(d)(3)(C), which permit medical exams as a condition of employment when the results are used in accordance with the subchapter. Reasoning that a claim under §12112(d)(3)(C) turns on whether there is discrimination on the basis of a disability, and this discrimination cannot occur unless Wetherbee is disabled, the 11th Circuit concluded a showing of Wetherbee being disabled was crucial to the claim. Because Wetherbee failed to show this, his claim failed.

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* Cathleen Scott is licensed to practice in Florida only.

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