We all saw it live or on social media – Will Smith slapped Chris Rock during an Oscars on-stage moment that was unforgettable. Smith reacted to a joke that Rock expressed about Jada Pinkett Smith’s bald head. What either was well known at the time or learned later by all of us is that Ms. Pinkett Smith apparently suffers from alopecia, an autoimmune disease that causes hair loss in various forms.
So, what does this have to do with employment law?
A close friend (I’ll call him Justin) suffers from alopecia universalis – which means he lost his hair over his entire body – including eyelashes and eyebrows. In the mid-1990’s, when Justin was looking for a new job, the Americans with Disabilities Act (ADA) was in its infancy. Disabled employees and applicants were just beginning to understand that they were protected by Federal law and the EEOC was focused on the deluge of sexual harassment claims that came after the Clarence Thomas Supreme Court hearings. Justin was a well-educated engineer and had stellar references. For a long time, however, he could not get past the interview stage and was continually rejected without any reasonable explanation. One common denominator to all of his face-to-face interviews was the solemn faces of the hiring personnel as he discussed his qualifications: fear, concern, dread. One person went so far as to ask him if he had cancer.
Enter the ADA, which prohibits discrimination against an employee or applicant who is a qualified individual with a disability. A relatively unknown nuance to the definition of disability is that the ADA also protects qualified individuals who are “perceived” to have a disability. This category includes persons with conditions that do not impair “major life activities,” but which tend to stigmatize such people. While not a disability in its own right, an employer might have an unfounded belief that the condition indicates cancer. The EEOC regulations include in its definition of disability, “A person has a disability if he or she is subject to an adverse employment action and is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).”
Was Justin actually disabled? Justin suffered from this autoimmune disorder, but it did not affect any major life activity. Nevertheless, he was treated – or “perceived” – as having a disability. He suffered adverse employment actions by not being hired because of this perception when he was otherwise qualified.
I’ve often said that virtually every interaction in life has some effect on labor and employment laws. The 2022 Academy Awards is the most recent example. This blog is not about the ‘slap heard around the world’ or alopecia universalis per se. Rather, it is a cautionary tale for human resource personnel with regard to employment decisions and hiring practices when faced with an employee or applicant who ‘appears’ to have a physical or mental impairment. Employers must be wary of subconscious judgments about the appearance of their workforce or applicants lest they get slapped in court.