An epileptic proved disability discrimination and a jury verdict awarding him $475,000 in damages, including $410,000 in back pay, was affirmed recently by the Eighth Circuit Court of Appeals in Finan v. Good Earth Tools, Inc., No 08-2221 (May 19, 2009).  The employee claimed that he was "regarded as" disabled and fired by his employer in violation of the American With Disabilities Act.

Finan was employed as a traveling salesman. He suffered from seizures and was eventually diagnosed with epilepsy. His doctor returned him to work and advised that he could resume driving after being seizure-free for six months. Nonetheless, he applied for and began receiving benefits under a private disability policy. Finan also returned to work before being fired on February 9, 2004. After being fired, he applied for and was awarded Social Security disability benefits.

Finan sued under the ADA on a "regarded as" theory; that is, that his employer regarded him as disabled even though he was not. A jury awarded him $410,000 in back pay and $65,000 in other damages.

The court ruled that neither Finan's receipt of private disability benefits nor of Social Security disability benefits undermined his claim. First, the court noted that the private disability policy required merely that he suffer from a disability or sickness, be under a doctor's care and, as a result, sustain an income reduction of 20% or greater. Second, the Social Security Administration did not determine that he could not perform the essential functions of his job; rather, it found only that considering his age, education, work experience, and residual functional capacity, there were not a significant number of available jobs for him in the national economy.   

Both the Americans With Disablities Act and the Kentucky Civil Rights Act prohibit disability discrimination. If you feel you have been discriminated against based on a disability, contact Lexington, Kentucky employment lawyer Robert L. Abell toll free at 866-578-5302 or at 859-254-7076.