Insensitive Comments Not Evidence that Employer Regarded Employee as Disabled

By Marylou Fabbo - Skoler Abbott P.C.

October 15, 2025

When an employer is put on notice of an employee’s disability, it can create legal and practical responsibilities in the workplace. Under the Americans with Disabilities Act (ADA) and similar state laws, notice of a disability—whether formal or informal— may obligate the employer to engage in an interactive process to determine reasonable accommodations that would enable the employee to perform essential job functions.  However, without notice of a disability, an employer cannot be found to harass or discriminate against an employee based on that disability.   In a recent 67-page decision, Connolly v. Woburn Public Schools et al., the United States District Court for the District of Massachusetts granted summary judgment for the employer after reaching the conclusion that unflattering characterizations of an employee did not demonstrate that the employer regarded the employee as disabled. 

When is An Employer Put on Notice that an Employee is Disabled?

An employer can learn of an employee’s disability in various ways.  It may be obvious — such as when an employee is blind or uses a wheelchair.  An employee may disclose a disability either with or without providing medical documentation about the employee’s medical condition.  In some cases, even if an employee cannot demonstrate that the employer was put on notice of the employee’s actual disability, the employee may still recover for disability-based harassment and discrimination.  

Under Massachusetts anti-discrimination laws, a person is considered to have a disability not only if they have a physical or mental impairment that substantially limits one or more major life activities, or a record of such an impairment, but also if they are regarded as having such an impairment, even if they do not actually have one.  This “regarded as” prong protects individuals from discrimination based on perceptions or assumptions about their health.  It is designed to prevent stigma and bias from influencing employment decisions.   

What Evidence Demonstrates that an Employer “Regarded” an Employee as Disabled?

In Connolly, among other things, a teacher alleged that her employer discriminated against her based on her disability (anxiety) and that she had been subjected to a hostile working environment also because of her anxiety.  The court disagreed. It concluded that there was no evidence that the employee disclosed her disability to her employer prior to the employer’s allegedly wrongful actions.  Nor was there evidence that it regarded her as disabled.

First, the employee alleged that during the COVID-pandemic, she had told her employer that she was anxious about the upcoming school year because she had an immunocompromised family member.  This conversation took place in the context of the employee’s request to teach virtually because of her asthma.  Simply because the employee mentioned being anxious about the school year did not put her employer on notice that she was disabled.

Second, the employee argued that the employer perceived her to be disabled by anxiety.  Evidence of that fact, according to the employee, could be found in various comments that had been made about her, including that she was “sensitive,” “fragile,” and “an eggshell.”  There was also evidence that a member of management had stated that it didn’t take much to upset her because “she’s somebody who could easily misconstrue a situation and feel bad.”  There was also evidence that after a harassment complaint had been filed, she was called “crazy,” and “a nut,” and treated disrespectfully.

Nevertheless, the Court held that although these statements were unprofessional, there was no further evidence suggesting that at the time the statements were made the individuals believed that the employee suffered from a “mental impairment”—a necessary element to establishing a “regarded as” disabled claim. 

Best Practices for Not Regarding Employees as Disabled

Employers who make assumptions about an employee’s health or capabilities, without a formal diagnosis or disclosure, risk violating this provision and facing legal consequences.  The “regarded as” standard was designed to prevent employers from acting on stereotypes or unfounded beliefs. Treating someone different because of perceived mental health issues, fatigue, or age-related changes can also trigger liability.

To avoid missteps, employers should focus on performance; not perception. Address job-related issues based on objective criteria like attendance, productivity, and conduct.  Don’t make or offer accommodations unless the employee has disclosed a disability and requested an accommodation.  Employers are often trying to be helpful, but assuming someone is disabled and acting on that assumption can lead to claims of disability discrimination. 

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