Can Disabling Conditions Protect The Prez From An Adverse Employment Action: Impeachment?

Can Disabling Conditions Protect The Prez From An Adverse Employment Action: Impeachment?

President-elect Donald Trump

President Donald Trump

The pain and suffering of willful blindness!  The scourge of tone deafness! And the heartbreak of being thin-skinned!  These are surely disabling conditions, but are such people covered by the Americans With Disabilities Act (“ADA”)?

Unfortunately, to my knowledge – no; unless they can be shown to be associated with, caused by, or a result of other covered disabilities.

But so many people in the workplace suffer – and suffer greatly.  Consider the President – the “People’s Employee.”  As we all can sadly see, these conditions apparently afflict him in spades, and are likely the cause of major workplace problems such as low morale, workplace chaos, diminished productivity, and discrimination lawsuits.  And like any employee with such performance problems, his tenure could be short.

But is it fair to fire someone who suffers from these disabling conditions?

What Are The Symptoms of Willful Blindness, Tone Deafness, and Thin Skin?

Tone deafness (the metaphorical type): “Unable to appreciate or understand the concerns or difficulties of others; out-of-touch.”

Wilfull blindness:  As Kierkegaard said, “There are two ways to be fooled. One is to believe what isn’t true; the other is to refuse to believe what is true.”

Thin-skinned:  If you Google “thin-skinned,” you-know-who pops up in the fourth position. “If you’re thin-skinned, you take criticism, rejection, disappointment, and failure very hard. Being left out of anything could be perceived as a major insult. If you forget a thin-skinned person’s birthday, they’ll probably hold a grudge.”

Is It Possible That HE Has These Disabilities?

Willful blindness? It does not take an optometrist to diagnose this when he sees millions and millions of non-existent people and dead voters.

Tone deafness?  The issuance of an executive order barring Muslims on Holocaust Remembrance Day is a dead giveaway.

And thin-skinned?  Really?  Do you have enough time?

Okay, the evidence is overwhelming.

What Does The ADA Do, And How Is It Relevant?

The ADA prohibits workplace discrimination based on a physical or mental ‘disability’ – a physical or mental impairment that, among other things, limits one or more major life activities. As my partner Amy Epstein Gluck explains, “Major life activities include all of those you do at work! Yes, like communicating, thinking, and learning.”

The ADA provides that before a disabled employee suffers an “adverse employment action,” such as firing, an employer must seek a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.

Is The Prez Likely To Suffer An “Adverse Employment Action?”

Quite possibly, judging solely by his performance.

In less than two weeks after being hired, the People’s Employee’s approval rating declined 8% from historically bad ratings.  Employees:  That’s no way to impress management when you start a job. In a typical workplace, this negative job performance would likely result in probation, a PIP (Performance Improvement Plan) or “Second Chance Agreement,” or even outright termination.

Indeed, calls for terminating his employment have grown – Robert Kuttner said in the Huffington Post that the “the wheels are coming off the bus. After a week!  Impeachment is gaining ground because it is the only way to get him out. …”

Termination of employment – of a possibly disabled employee!  How unjust!

The EEOC Should Declare That The ADA Covers Tone Deafness, Willful Blindness, and Thin Skin

But wait – I have an idea. Maybe the Prez could draft an executive order directing the EEOC to declare immediately that tone deafness, willful blindness, and thin skin are covered by the ADA.  A good start would be to pressure the American Medical Association to recognize these conditions as medically disabling.

What Would This Mean, Rich? 

A “reasonable accommodation” might then be required:  these might include an American Sign Language interpreter – or “tone deafness” interpreter; a seeing eye dog; short breaks to slather on moisturizing cream; or even a certified Emotional Support Animal.

An Emotional Support Animal!  WebMd asks, “Are your relationships with family and loved ones complicated and frayed? A pet can be a great antidote. … It adds a new and positive focus to your life.”  This might be just the trick!

But careful – having a support animal is not without peril here.  WebMd says that “There’s something naturally soothing about petting a cat on your lap.”

Uh oh!  “Petting” and “cat” – this may not be such a wise thing after all: it could remind us of better-left-buried Title VII sexual harassment issues.

The Employee With A Disability Must Be Qualified For The Job

Perhaps the biggest sticking point to my suggestion is that the ADA requires an employee to be otherwise “qualified” for the job; he must be able to perform the major functions of the position, with or without a reasonable accommodation.

Oh well.  Nice try.

If an employee must be qualified for the job to be covered by the ADA, my elaborate plan will clearly never work.

Never mind!

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at and follow him on Twitter at @richard09535496.


Published at Thu, 02 Feb 2017 23:54:24 +0000

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