WASHINGTON – A federal appeals court has ruled that High’s of Baltimore did not violate the Americans with Disabilities Act when the convenience store chain temporarily shifted a worker with a back injury into a lower-paying job.
The 4th U.S. Circuit Court of Appeals in a precedent-setting ruling Monday said Mary Pollard was not protected by the act because her injury was not permanent or life-altering, as required by the law.
“Applying the protections of the ADA to temporary impairments, such as Pollard’s, would dramatically expand the scope of the act,” wrote Chief Judge J. Harvie Wilkinson for a three-judge panel of the court.
The ruling, which echoed last month’s ruling by the Supreme Court that a person suffering from a temporary injury is not protected by the ADA, was called unfortunate Tuesday by advocates for the disabled.
“If this woman was discriminated against because of her temporary disability, the ADA should be an avenue through which she could remedy that and retain the job that she had,” said Jeff Rosen, policy director for the National Council on Disability.
But High’s attorney said the Monday ruling could encourage local companies to fight bogus claims of permanent disability in court, rather than taking on the cost and effort of accommodating a worker who is temporarily injured.
“Up until now, they may have been more likely to just pay them (injured workers) off,” said Norman R. Buchsbaum. “Now, they might think twice about undertaking the high cost of litigation because they’re more likely to be successful.”
Pollard was an area supervisor of a dozen High’s stores in northern Maryland when she injured her back in 1997, court documents showed. The injury and subsequent surgery in January 1998 left her unable to drive long distances, lift heavy objects or work more than a few hours a day, all of which were required in her job.
Pollard returned to work in September 1998 after recovering from complications from the operation. But instead of resuming her old job she was assigned work as a store clerk, dropping her salary from $40,000 to $12,000. She quit in October and immediately began working at a car dealership.
She sued in November 1999, claiming that her injury was not temporary and that her relegation to low-level, low-paying work was not legal.
But the judges, affirming a district court decision, ruled that “nothing in the nature or severity of Pollard’s impairment indicated that she had anything other than a temporary impairment.” Therefore, High’s was not required to adjust Pollard’s work environment to allow her to keep her supervisor’s job.
The judges also wrote that Pollard’s ability to find work immediately after leaving High’s showed that her disability did not impede normal life activities and thus did not qualify for protection by the ADA.
Pollard’s attorney, Paul Evelius, would not talk about the case Tuesday except to say, “It’s really just too painful to comment on right now.”
Buchsbaum said the ruling could discourage workers with short-term ailments from seeking undeserved protection under the ADA.
“A person who is truly disabled should be protected by the law,” he said. “But a person is going to have to be truly disabled to claim they’re disabled.
“This will show people that if they want to protect people with temporary disabilities, they’re going to have to go to Congress and get (the law) changed.” Buchsbaum said.