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NOVA Legal Beat: Fired for Dyslexia?

by ARLnow.com — August 27, 2014 at 3:00 pm 686 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. If an employee makes mistakes because he has dyslexia, can an employer fire him because of poor performance?

A. The American with Disabilities Act (ADA) prohibits employers from discriminating against employees and job candidates who have a “a physical or mental impairment that substantially limits one or more major life activities.”

Learning is considered a “major life activity,” and dyslexia is a learning disability. So long as the person with dyslexia is qualified for a position, meaning he or she can perform its essential functions with or without a reasonable accommodation, employers generally should not terminate someone solely because of this learning disability.

In Shively v. City of Martinsville (2009), the U.S. District Court for the Western District of Virginia defined “dyslexia” as “a cognitive condition that affects one’s ability to read and process the written language. In many instances, letters and numbers are transposed in the mind, making it difficult to accurately convey letters and numbers in the proper order.” The court noted that the tendency for people with dyslexia “to confuse or transpose numbers and letters… would affect a broad class of jobs, such as accounting, bookkeeping, or practicing law.”

Employers may be required to provide qualified employees with a reasonable accommodation, such as the provision of a reader or more time to complete a task. An accommodation would not be reasonable if it imposes an undue burden on the employer. A diagnosis of dyslexia alone may not be enough to require an employer to provide a reasonable accommodation.

“A person does not qualify as ‘disabled’ simply by submitting evidence of a medical diagnosis of an impairment,” the U.S. District Court for the District of Maryland said in Fleetwood v. Harford Systems Inc. (2005). “Rather, an individual must offer evidence that the limitation caused by the impairment ‘prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives,’ and that the impact of the impairment is permanent or long-term.”

Even if the dyslexia does not result in an actual limitation caused by the impairment, a diagnosis of this learning disability could result in a perceived substantial limitation in a major life activity. Such a perceived limitation would afford an employee ADA protection, but “the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that this perception caused the adverse employment action,” the U.S. District Court for the Western District of Virginia said in Marshall v. Wal-Mart Stores (2001).

In Shively, the court noted that an employee must more than “merely assert that the Defendants perceived her as being disabled; she must allege all of the elements of her cause of action. She must allege that Defendants perceived her as suffering from an impairment that substantially limited one or more major life activities.”

People who believe an employer discriminated against them because they have dyslexia, or are perceived to suffer from an impairment that substantially limits one or more major life activities, should immediately contact an employment law attorney who could prepare a disability discrimination lawsuit.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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