Besides covering physical and mental impairments, the Americans with Disabilities Act specifically extends protection against discrimination to those who are “regarded as” having an impairment (see Employment Litigation in Michigan §5.17 for discussion of these claims). While there is no express provision dealing with perceived bias in the Title VII provisions on employment discrimination, this theory may bear watching in the future. The courts are currently divided on whether a perceived bias claim may be brought under Title VII, and the U.S. Supreme Court and the Sixth Circuit have yet to rule on this issue. The EEOC’s Compliance Manual states that national origin employment discrimination may be “based on the employer's belief that [the employee] is a member of a particular national origin group, for example, discrimination against someone perceived as being Arab based on his speech, mannerisms, and appearance, regardless of how he identifies himself or whether he is, in fact, of Arab ethnicity.” There is similar language on perception in the Compliance Manual’s section on race discrimination.
A number of federal district courts have recognized a claim based on perception. In Kallabat v Michigan Bell Tel Co, No 12-CV-15470, 2015 US Dist LEXIS 78944 (ED Mich June 18, 2015), the court denied the employer’s summary judgment motion on plaintiff's claim for discrimination based on perceived religion. Plaintiff in this case was Iraqi, had dark skin, and alleged that he was perceived as being Muslim. He claimed that during his employment he had experienced disparate treatment and a hostile work environment that included unjustified discipline, vandalism of his property, and harassment. Relying on other decisions that recognized the perception theory in religious discrimination cases, the court ruled that there were questions of fact regarding plaintiff's claim for discrimination based on perceived religion.
Although the perception theory has so far been limited to religion, race, and national origin claims, there is no reason why it might not apply to other protected categories, such as when an employer suspects that an employee is pregnant. As a preventive measure, employers should make certain that employment decisions are not biased based on a perception of an employee. In addition, the concept of bias based on perception should be included as part of any discrimination training.