Alaska Employment Law

If an employer evaluates an employee for a disability, or tries to accommodate a possible disability, will its actions boomerang and constitute evidence that it “regarded” the employee as disabled?  The 9th Circuit says, No.

That the County was aware of Magdaleno’s PTSD diagnosis, required him to submit to a psychological evaluation, and took steps to accommodate his PTSD, is insufficient to create a triable issue of fact on the “regarded as” prong. See Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 798 (9th Cir. 2001) (“[W]hen an employer takes steps to accommodate an employee’s restrictions, it is not thereby conceding that the employee is disabled under the ADA or that it regards the employee as disabled.”); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998) (“A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired.”). Thus, there is no triable issue of fact as to whether the County regarded Magdaleno as having a disability. 

The panel affirmed summary judgment in favor of the employer.

Magdaleno v. Washington County, 2008 WL _______ (9th Cir. May 5, 2008)(unpub.)