Sleeping at a desk

The 7th Circuit, in a short opinion issued April 6, zapped a plaintiff’s claim that he was terminated in violation of the ADA based on his condition of being overexposed to electromagnetic voltage at his job. Mr. Hirmiz, a desk clerk at a Travelodge hotel, was caught on video sleeping during a fight that broke out among guests in the lobby. He was fired. Mr. Hirmiz sued the hotel claiming that his employer failed to accommodate his disability–hypersensitivity to electromagnetic voltage. He also alleged that his termination was in retaliation of his filing a complaint with OSHA that the hotel had high-voltage levels. The lower court dismissed his case because he failed to show that he was actually disabled under the ADA and could not show that his OSHA complaint played any role in the termination.

Judge Posner, in a fairly short opinion, agreed with the lower court’s dismissal. He noted that there is a scientific debate about whether allergies to electromagnetic voltage are a physical disorder or a psychological one. The judge pointed out that if it is a psychological disorder, the symptoms might not rise to the level of substantially limiting a major life activity, which is required to qualify as a disability under the ADA. The analogy Judge Posner used is the fear of black cats—a psychological disorder that likely wouldn’t qualify. The 7th Circuit opinion noted that Mr. Hirmiz didn’t provide any proof to show that he was suffering from such an impairment.

On the retaliation claim, Judge Posner found that Mr. Hirmiz had not sought any accommodation for his alleged disability and didn’t file any charge with the EEOC until after he was fired. He couldn’t show any causal link between the OSHA complaint and his termination (in fact, OSHA tested the hotel and found all levels to be normal). The hotel had a valid reason, unrelated to his alleged disability, for firing him—-he was sleeping on the job. As such, the 7th Circuit affirmed the dismissal of his case.

This decision shows that although it may seem like courts take a broad view of what constitutes a disability, plaintiffs still have to meet the burden of showing that they suffer from an impairment that substantially limits a major life activity. Sometimes a sleeping employee is just that—-a sleeping employee.