Disability Discrimination Cases

HATFIELD v ST MARY’S MEDICAL CENTER Docket No. 150429. Submitted December 15, 1994, at Lansing. Decided June 2, 1995, at 9:25 a.m. Leave to appeal sought. Pamela D. Hatfield brought an action in the Saginaw Circuit Court against St. Mary’s Medical Center, alleging employment discrimination in violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The plaintiff was employed by the defendant in a position that required the ability to lift about forty pounds. The plaintiff, after being involved in an automobile accident that was unrelated to her employment, could not do the lifting required of her position. She attempted to return to work with a restriction by her physician from lifting more than ten pounds. She found she was unable to continue working and, at the employer’s suggestion, applied for a one-year medical leave of absence. Six-months later, she sought to return to work and presented a note from her physician indicating that she had a temporary restriction against lifting more than twenty-five pounds. Although there is some dispute, the plaintiff’s employment apparently was thereafter terminated. The jury returned a verdict for the plaintiff and the trial court, Leopold P. Borrello, J., entered a judgment consistent with the verdict. The plaintiff appealed. The Court of Appeals held: 1. The trial court should have granted the defendant’s motion for a directed verdict at the close of the plaintiff’s proofs. The trial court’s judgment must be reversed and the matter remanded for entry of an order of dismissal. 2. At the time applicable to this action, the Handicappers’ Civil Rights Act provided that the only handicaps covered by the act, for purposes of employment, were those unrelated to the ability to perform the duties of the position. The act did not require employers to adjust or modify job duties otherwise required by the job description in order to accommodate a handicapped employee. Therefore, the plaintiff was not handicapped because her disability related to her ability to perform the duties of her position. References Am Jur 2d, Job Discrimination §§ 209-216. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. 78 ALR4th 265. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. 3. The fact that the plaintiff was returning to work from a medical leave of absence rather than applying for the position for the first time does not change her ability to ■ use the Handicappers’ Civil Rights Act. 4. The trial court erred, in instructing the jury that an employer must give an employee a reasonable time to heal. The plaintiff did not allege that the defendant denied her adequate leave time and, in fact, chose to cut her leave short and return to work. Reversed and remanded. Civil Rights — Handicappers’ Civil Rights Act — Covered Handicaps. Before June 1990, the Handicappers’ Civil Rights Act provided that the only handicaps covered by the act, for purposes of employment, were those unrelated to the ability to perform the duties of the position; the act did not require employers to adjust or modify job duties otherwise required by the job description in order to accommodate a handicapped employee (MCL 37.1103[b]; MSA 3.550[103][b]). Fordney, Cady, Mastromarco & Jahn, P.C. (by Victor J. Mastromarco, Jr., and Jo Ellen O'Con-nor), for the plaintiff. Chaklos, Jungerheld & Hahn, P.C. (by Thomas C. Wimsatt), for the defendant. Before: Taylor, P.J., and Griffin and W. G. Schma, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, P.J. Defendant appeals as of right the circuit court’s judgment for plaintiff. The judgment was based on a jury verdict arising out of an employment discrimination claim under the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. We reverse and remand for entry of an order of dismissal. In 1984,. defendant employed plaintiff as a computer operator, data entry clerk. Her job description provided that she must have "the ability to stand, walk, as well as lift and carry medium weight (average about forty pounds) for four to five percent of work time.” This description was accurate and plaintiff admitted that her job did involve lifting printers, screens, keyboards, and paper products. On September 19, 1988, plaintiff was involved in an automobile accident that was unrelated to her employment. After the accident, she could not do the lifting required by her employer because of a soft tissue injury to her back. She received medical treatment, but her back problems became progressively worse. On December 29, 1988, unable to continue, she took a leave of absence from work and sought treatment for her back pain. On March 14, 1989, following treatment with an orthopedic surgeon, plaintiff returned to work on a two-week trial basis for four hours a day with a weightlifting restriction of ten pounds. She was not required to do any lifting during this two-week period because her department was involved in computer training when she returned and she spent her time learning this new computer system. Having satisfactorily completed this two-week period, she presented a return-to-work note from her physician that continued the lifting restriction but allowed her to work eight hours a day. Defendant authorized her to attempt this on a two-week trial basis. To comply with the weight restrictions, plaintiff was instructed to break down items where possible to ensure that she did not exceed her ten-pound lifting restriction. Plaintiff was also advised to get help, if necessary, from someone in the department, or from security, for items that could not be broken down. She completed her first eight-hour shift and returned to work the following day for a few hours before concluding that she could not continue. At defendant’s suggestion, plaintiff applied for a one-year medical leave of absence effective April 10, 1989. Plaintiff’s understanding of the leave of absence was that it could last for one year. During that year, she could come back to work by bringing a slip from her physician and could get her job back if .it was available. She also understood that if the job was not available, defendant would make an effort to see that she got a comparable job. During her leave of absence, plaintiff underwent further treatment and the condition of her back improved. She was released to return to work on September 11, 1989, and presented her physician’s note to defendant’s personnel department. The note read: To Whom It May Concern: Pamela Hatfield has been under my care since May 10, 1989. She may return to work on September 11, 1989 with a weight restriction of 25 pounds, (this is a temporary weight restriction). Plaintiff’s supervisor, Julie Carey, expressed reservations about the weight restriction. As related by plaintiff at trial, Carey called her approximately three days later and stated that, regardless of the lifting restriction, plaintiff could not have the job back because of potential liability should plaintiff reinjure her back on the job. Because Carey was her supervisor, plaintiff testified that she believed that Carey had fired her. Defendant denied that plaintiff was terminated by Carey because Carey had no such authority and plaintiff had about five months of leave remaining. While plaintiff acknowledged that she never received any termination notice in writing or an exit interview, which she understood was part of defendant’s termination procedure, she continued to adhere to the view that she had been terminated. Her proofs and arguments regarding this issue were reinforced by defendant’s answers to questions posed by the Department of Social Services when plaintiff subsequently applied for benefits. Defendant’s answers strongly implied that plaintiff had been terminated. Premised on these facts, plaintiff brought a lawsuit alleging breach of employment contract by defendant and a violation of the hcra. Only the hcra claim reached the jury. The jury returned a verdict for plaintiff in the amount of $70,000. On appeal, defendant argues that the trial court abused its discretion in failing to direct a verdict in defendant’s favor. We find that defendant’s position is meritorious and that defendant’s motion for a directed verdict should, have been granted at the close of plaintiff’s proofs. In reviewing a trial court’s decision regarding a motion for a directed verdict, this Court views the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, grants that party every reasonable inference, and resolves any conflict in the evidence in that party’s favor to decide whether a question of fact existed. Morrow v Boldt, 203 Mich App 324, 327; 512 NW2d 83 (1994); Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). Further, the trial court’s decision will not be disturbed absent a clear abuse of discretion. Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). The Michigan hcra went into effect on March 31, 1977, and was amended on June 25, 1990, by 1990 PA 121. Because this matter arose before 1990, the preamendment hcra is applicable. Before its amendment in June 1990, the hcra.defined the term "handicap” in pertinent part as follows: "Handicap” means a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic: (i) ... is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. [Adkerson v MK-Ferguson Co, 191 Mich App 129, 140; 477 NW2d 465 (1991) (quoting MCL 37.1103[b]; MSA 3.550[103][b].] Our Supreme Court has held that the statutory language cited means that "the only handicaps covered by the act, for purposes of employment, are those unrelated to ability to perform the duties of the position.” Carr v General Motors Corp, 425 Mich 313, 321-322; 389 NW2d 686 (1986). The Carr Court also laid to rest the previously existing conflict in this Court regarding whether employers were obligated to accommodate employees whose handicaps impeded job performance, but who could perform if adequately accommodated. The Carr opinion concluded that the hcra did not require employers to adjust or modify job duties otherwise required by the job description in order to accommodate a handicapped employee. Id. at 321-323. The Carr holding is dispositive of plaintiffs hcra claim. Even when the facts are viewed in the light most favorable to her, plaintiff merely asserts that she could have performed her job if defendant would have accommodated her lifting restriction. Pursuant to the holding in Carr, plaintiffs claim does not fall within the purview of the hcra. Simply stated, plaintiff was not handicapped because her disability related to her ability to perform the duties of the position; before its amendment, the hcra did not require this type of accommodation. As a result, plaintiffs claim fell outside the protections afforded by this statute. As defendant perceptively argues, had plaintiff been applying for the position of entry clerk, she would not have been eligible for employment because of the weight restrictions and, under the act then in effect, could not have pleaded a handicap within the meaning of the hcra. That is, defendant could have refused to hire plaintiff for this reason and would not have violated her civil rights by doing so. The fact that plaintiff was returning to work from a medical leave of absence rather than applying for the first time does not change her ability to utilize the statute. Plaintiff has attempted to avoid application of the Carr holding by asserting that this Court’s decision in Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 744; 440 NW2d 101 (1989), controls the issue. Plaintiff argues that, pursuant to Ashworth, the hcra imposes a duty on employers to modify peripheral duties in order to allow job performance. Review of the Ashworth decision indicates that it was based on this Court’s holding in Rancour v Detroit Edison Co, 150 Mich App 276, 279; 388 NW2d 336 (1986). However, Rancour was decided before the Supreme Court’s Carr opinion and the Carr Court rejected the reasoning and arguments advanced in Rancour, effectively overruling that decision. Thus, to the extent that the reasoning relied on in Ashworth is inconsistent with our Supreme Court’s holding in Carr, we decline to follow it. As is well understood, this Court must comply with Supreme Court precedent. Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993). Accordingly, we must reject plaintiffs interpretation of Ashworth because such a reading would cause it to be inconsistent with the holding in Carr. Defendant next argues that the trial court erred in giving a special instruction that was premised on an error of law. Specifically, defendant argues that, relying on the decision in Rymar v Michigan Bell Telephone Co, 190 Mich App 504; 476 NW2d 451 (1991), the trial court erroneously instructed the jury: An employer must give its employees a reasonable time to heal, so long as the delay does not impede getting the employer’s work done. If you find that Plaintiffs handicap did adversely affect her capacity to do the work, it is your duty to decide whether, within a reasonable time, Plaintiffs disability and handicap [would have] ceased to adversely affect her capacity to do the work. We agree with defendant that the trial court erred in giving this instruction. In Rymar, this Court held that an employer must give an employee a reasonable time to heal if the handicap is temporary. Id. at 507. The plaintiff in Rymar argued that her employment was terminated without first affording her the same amount of leave time as received by other employees. The Rymar Court correctly concluded that, on the date of her termination, the plaintiff’s disability was related to her ability to do her job. The Court then stated, "However, there remains unanswered a question whether, within a reasonable time, her disability would cease to adversely affect her capacity to do the work.” Id. On the basis of this conclusion, the Rymar Court held that summary disposition was improper. Id. While we question the soundness of the reasoning in Rymar, we conclude that we are not constrained to follow it because Rymar is distinguishable. Unlike the plaintiff in Rymar, plaintiff in this case never alleged that defendant denied her adequate leave time. Indeed, it was defendant who urged plaintiff to take a medical leave of absence in April, 1989. Plaintiffs leave of absence did not expire until April, 1990. However, plaintiff made the decision to return to work approximately six months before the medical leave expired, effectively asserting that she was sufficiently healed to perform the duties of her job. If she could not perform those duties, she had no protections under the hcra and could be terminated as she, in fact, asserts she was. Because plaintiff made the conscious choice to cut her leave short and return to work, she will not now be heard to claim that defendant did not provide her adequate time to heal. Therefore, we hold that the trial court erred in giving the jury the "time to heal” instruction. Reversed and remanded for entry of an order of dismissal.

SANCHEZ v LAGOUDAKIS Docket Nos. 89528, 89532. Argued December 4, 1991 (Calendar No. 5). Decided August 4, 1992. Dorene Sanchez brought an action in the Branch Circuit Court against her employer, Kostas Lagoudakis, doing business as Paradise Family Restaurant, claiming that his refusal to allow her to work at the restaurant until she secured medical evidence that she did not suffer from acquired immunodeficiency syndrome, violated the Handicappers’ Civil Rights Act. The court, Michael H. Cherry, J., granted summary disposition for the defendant, finding that because Sanchez eventually was shown not to have aids, she failed to state a claim under the act, but conditioned dismissal on payment by Lagoudakis of lost wages, costs, and attorney fees. The Court of Appeals, Gillis, P.J., and McDonald and J. W. Fitzgerald, JJ., affirmed in an opinion per curiam (Docket No. 115526). Both parties appeal. In an opinion by Justice Levin, joined by Chief Justice Cavanagh, and Justices Brickley, Boyle, and Mallett, the Supreme Court held: Aids can be found to be a handicap for purposes of the Handicappers’ Civil Rights Act. The mere perception of a handicap, even if erroneous, is actionable under the act. 1. MCL 37.1103(b)(i); MSA 3.550(103)(b)(i), in effect at the time of the plaintiff’s claim, defined "handicap” as a determinable physical or mental characteristic of an individual or a history of the characteristic that may result from disease, injury, congenital condition of birth, or functional disorder, which characteristic is unrelated to the individual’s ability to perform a particular job or position or is unrelated to the individual’s qualification'for employment or promotion. A person with aids can be found to be handicapped. Because the circuit court did not reach either the issue whether aids can be a determinable physical or mental characteristic resulting from disease or the issue of unrelatedness, remand is required for further factual development and determination. 2. Under MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), an employer was not permitted to discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of a handicap unrelated to the individual’s ability to perform the duties of a particular job or position. It appears that the act prohibited employers from acting against employees on the basis of a handicap within the statutory definition. The focus of the act was the basis of the employer’s conduct, the employer’s belief or intent, and not the employee’s condition. If an employer acts on a belief that an employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because the employer has undertaken the kind of discriminatory action prohibited by the act. The Civil Rights Commission consistently has construed the act to protect persons who suffer discrimination motivated by an employer’s erroneous perception of a handicap and has extended this construction to explicitly include the perception of aids. Justices Riley and Griffin concurred in the result only. Reversed and remanded for further proceedings. 184 Mich App 355; 457 NW2d 373 (1990) reversed. ACLU Fund of Michigan (by Mark Brewer and Mark Stuart); (Paul Denenfeld, of counsel) for the plaintiff. George Platsis for the defendant. Amici Curiae: Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Robert L. Willis, Jr., Dianne Rubin, and Ron D. Robinson, Assistant Attorneys General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. David Piontkowsky for Michigan Organization for Human Rights. Levin, J. Defendant Kostas Lagoudakis operates the Paradise Family Restaurant in Coldwater. In November, 1987, he hired plaintiff Dorene Sanchez as a waitress. Shortly thereafter, a rumor circulated that Sanchez had acquired immunodeficiency syndrome, aids. It appears that some patrons refused to allow Sanchez to wait on them. On December 8, 1987, Lagoudakis informed Sanchez that she could not continue to work at the restaurant until she secured medical evidence that she was disease free. Sanchez obtained a blood test at the county health department and learned that the result was negative about a month later. She maintains, however, that she was so humiliated by the experience that she had to leave Coldwater and return to Marshall. Sanchez commenced this action against her employer, Lagoudakis, claiming that his actions violated the Handicappers’ Civil Rights Act. After some discovery, both parties filed motions for summary disposition. The circuit court granted Lagoudakis’ motion, finding that because the complaint alleged, and discovery tended to show, that Sanchez did not in fact have aids, she did not have a handicap as defined by the act, and thus had failed to state a claim under the act. The court conditioned the dismissal of the case, however, on Lagoudakis’ paying lost wages for the time between Sanchez’ suspension and her receipt of the negative test results. The court assessed some costs and attorney fees against Lagoudakis. The Court of Appeals affirmed. We reverse, and remand for further proceedings. I The circuit judge granted summary disposition because he was of the opinion that the act cannot support a claim of discriminatory treatment based on an employer’s erroneous perception that an employee has aids. There are two parts to the question presented: (1) can aids be found to be a handicap under the act?; (2) is the mere perception of a handicap, even if erroneous, actionable under the act? A Although this is the first time this Court has confronted the issue whether aids can be a handicap under the act, courts in California, New York and New Jersey, have considered the question in construing discrimination statutes. These courts have all concluded that aids is a handicap for civil rights purposes. The United States Courts of Appeals for the Ninth and Eleventh Circuits, and the United States District'Courts for the Eastern District of Pennsylvania, and the Central District of California, have held that aids is a handicap under antidiscrimination statutes. Section 103(b)(i) of the act, in effect at the time of Sanchez’ claim, defined "handicap” as "a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic . . . is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion.” We are persuaded that a person with aids can be found to be handicapped. On remand, the evidence may provide support for a finding that a person with aids has a "physical characteristic” because such persons have a severely weakened immune system, an inability to fight disease that persons not so infected can withstand. Further, this characteristic may be "determinable” because it can be identified by blood testing. Finally, this characteristic may "result from disease” because the cause of the breakdown of an Ams-infected person’s immune system is the disease known as AIDS. In the instant case, the circuit court did not reach either the issue whether aids can be a determinable physical or mental characteristic resulting from disease or the issue of "unrelatedness,” having concluded that the act precluded claims based on the perception of handicap. B Having determined that aids can be found to be a handicap under the act, we turn to the question whether the mere perception of a handicap, even if erroneous, is actionable under the act. Section 202(1)(b) of the act provided that an employer shall not "[discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” (Emphasis added.) It appears from this wording that the act prohibited employers from acting against employees on the basis of a handicap within the statutory definition. The focus of the act was the basis of the employer’s conduct — the employer’s belief or intent — and not the employee’s condition. If the employer acts on a belief that the employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because, in either hypothesis, the employer has undertaken the kind of discriminatory action that the act prohibits. The Civil Rights Commission has consistently construed the act to protect persons who suffer discrimination motivated by an employer’s erroneous perception of a handicap. The commission recently extended this construction to explicitly include the perception of aids. The Court of Appeals has concluded that the act proscribes discrimination motivated by an employer’s erroneous perception of a handicap. Courts in other jurisdictions with discrimination laws similar to the act have consistently construed their statutes to protect persons perceived to be handicapped. The United States Supreme Court, as well as the United States Court of Appeals for the Fifth Circuit and the United States District Courts for the Eastern District of Pennsylvania and the District of Hawaii, have construed the federal Rehabilitation Act to include employers’ perceptions of handicap, even in instances where the employee in fact had no handicap. The Supreme Courts for the States of Washington, Wisconsin and Utah, the Connecticut Human Rights Commission, the United States District Court for the Southern District of Florida and the New Jersey Superior Court, have all concluded that handicap discrimination statutes prohibit discrimination based on mere perception of handicap. The Legislature, in 1990, amended the definition of "handicap” to include "[b]eing regarded as having” a handicap. Clearly, under the current version, when the act, in describing prohibited behavior, speaks of discrimination by an employer against an individual because of a handicap, this includes an individual who, while not handicapped, is regarded as having a handicap. II Because aids can be found to be a handicap under the Handicappers’ Civil Rights Act, and because the act prohibits discriminatory treatment, even when based on erroneous perception, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings. On remand the circuit court shall determine whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion. Both of these questions are for further factual development and determination. No record is presented on which we might express an opinion. Reversed and remanded to the circuit court. Cavanagh, C.J., and Brickley, Boyle, and Mallett, JJ., concurred with Levin, J. Riley and Griffin, JJ., concurred in the result only._ Sanchez claims that Lagoudakis communicated the aids allegation to other employees and customers of the restaurant. Lagoudakis version is that Sanchez was welcome to return to work, but that she simply chose to return to Marshall to live with her husband. Sanchez named a coemployee, allegedly responsible for the rumor, as an additional defendant. MCL 37.1101 et seq.; MSA 3.550(101) et seq. The order of dismissal entered on February 22, 1989, awarded Sanchez lost wages and tips of $491.25, costs of $316.24, and attorney fees of $500. Our disposition makes it unnecessary to consider the propriety of this award. 184 Mich App 355; 457 NW2d 373 (1990). This Court then granted both parties’ applications for leave to appeal, 437 Mich 1035 (1991). Raytheon Co v California Fair Employment & Housing Comm, 212 Cal App 3d 1242; 261 Cal Rptr 197 (1989) (aids was a physical handicap under the California Fair Employment and Housing Act [Cal Gov Code 12900 et seq.] — the act does not offer a restrictive definition of "handicap,” but the California Supreme Court has defined the term to include a "physical” condition that either presently or eventually impairs a person’s ability to do his job, see American Nat’l Ins Co v Fair Employment Housing Comm, 32 Cal 3d 603, 608-610; 186 Cal Rptr 345; 651 P2d 1151 [1982], and Cal Gov Code 12926); Barton v New York City Comm on Human Rights, 140 Misc 2d 554; 531 NYS2d 979 (1988) (aids patients were physically handicapped within the meaning of § 8-108 of the New York City Administrative Code); Poff v Caro, 228 NJ Super 370; 549 A2d 900 (1987) (a person suffering from aids clearly has a severe handicap within the meaning of the New Jersey Law Against Discrimination [NJ Stat Ann 10:5-1 et seq.] — the statute defines "handicapped” as "suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological, or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques,” NJ Stat Ann 10:5-5[q]). Chalk v United States Dist Court, 840 F2d 701 (CA 9, 1988) (reversing the denial of a preliminary injunction seeking reinstatement of teacher with aids to classroom duties under the federal Rehabilitation Act [29 USC 701 et seq.] — the act defines "handicap” as "physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such an impairment, ... or is regarded as having such an impairment,” 29 USC 706[8][B]). Martinez v School Bd of Hillsborough Co, 861 F2d 1502, 1506 (CA 11, 1988) (aids qualifies as a handicap under the federal Rehabilitation Act). Cain v Hyatt, 734 F Supp 671 (ED Pa, 1990) (aids is a handicap within the meaning of the Pennsylvania Human Relations Act [43 Pa Stat Ann 951 et seq.] — the act defines "handicap” as "a physical or mental impairment which substantially limits one or more major life activities,” 16 Pa Code 44.4[4][i], interpreting the act, 43 Pa Stat Ann 955). Thomas v Atascadero Uniñed School Dist, 662 F Supp 376, 381 (CD Cal, 1986) (a child with aids is handicapped under the federal Rehabilitation Act). MCL 37.1103(b)(i); MSA 3.550(103)(b)(i). Effective June 25, 1990, this act was amended and the term "handicap” is now defined by MCL 37.1103(e); MSA 3.550(103)(e) to mean: 1 or more of the following: (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: . . . substantially limits I or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [Emphasis added.] This opinion should not be read as addressing whether, on these facts, aids is unrelated to Sanchez’ job as a waitress. MCL 37.1202(1)(b); MSA 3.550(202)(1)(b). The purpose of the act is to prohibit employers from discriminating on the basis of handicap. It would not be consistent with that purpose to relieve employers who so discriminate of liability if, although they acted in a prohibited discriminatory manner, it later turns out that their belief was in fact erroneous. The key as far as the act is concerned is that the employer acted on the belief of a handicap. See, e.g., Dep’t of Civil Rights ex rel Lanphar v A & C Carriers, Mich Civ Rts Comm Dec No. 36140-E1 (December 18, 1979) ("[e]ven if claimant did not, in fact, have a spondylolysis [a back condition], respondent failed or refused to hire claimant because of respondent’s perception that he had such a condition, and such failure or refusal to hire based upon a perception of a handicap is a violation of [the hcra]”). See also Dep’t of Civil Rights ex rel Roznowski v Bay City Fire Dep’t, Mich Civ Rts Comm Dec No. 71346-E1 (December 14, 1987). On August 25, 1986, the Civil Rights Commission issued a policy statement providing the following construction of the act: The [Department of Civil Rights] will accept and process complaints from persons who believe they have been discriminated against in employment, housing, public accommodations, public service, and education because of aids or a related condition or the perception of aids. [Emphasis added.] See Dep’t of Civil Rights ex rel Lanphar v A & C Carriers, 157 Mich App 534, 537; 403 NW2d 586 (1987) (per curiam) (" '[A]n individual claiming protection under the act is not required to allege and prove himself or herself to be, in fact, handicapped in order to be eligible for the relief provided by the act. It is only necessary for a claimant to show that an employer, believing or suspecting such claimant to be handicapped, committed one of the employment practices prohibited by the act’ ”). See also Bay City Fire Dep’t v Dep’t of Civil Rights ex rel Roznowski, 182 Mich App 145; 451 NW2d 533 (1989) (per curiam) (Reilly, J., concurring). Southeastern Community College v Davis, 442 US 397, 405-406, n 6; 99 S Ct 2361; 60 L Ed 2d 980 (1979) (“A person who has a record of, or is regarded as having, an impairment may at present have no actual incapacity at all. Such a person would be exactly the kind of individual who could be 'otherwise qualified’ to participate in covered programs [under the federal Rehabilitation Act]”). See also School Bd of Nassau Co v Arline, 480 US 273; 107 S Ct 1123; 94 L Ed 2d 307 (1987). Carter v Orleans Parish Public Schools, 725 F2d 261, 263 (CA 5, 1984) ("Unimpaired persons regarded as having an impairment enjoy statutory protection [under the federal Rehabilitation Act] because the erroneous denial of admission into regular classes is one of the abuses Congress sought specifically to correct”). Local 1812 v United States Dep’t of State, 662 F Supp 50, 54 (D DC, 1987) ("Persons who carry hiv may be deemed handicapped [under the federal Rehabilitation Act] ... if they are perceived to be handicapped”). E E Black, Ltd v Marshall, 497 F Supp 1088, 1098 (D Hawaii, 1980) (recognizing that the provision of the federal Rehabilitation Act and regulations promulgated pursuant thereto define "handicapped individual” to include a person who is merely regarded as having such an impairment). 29 USC 701 et seq.; USC 706(8)(B), 793, and 794. See also cases cited in 3 Sullivan, Zimmer & Richards, Employment Discrimination, § 25.2.3, pp 11-13. Because the recently enacted Americans With Disabilities Act defines "disability” similarly to the definition of "handicap” under the federal Rehabilitation Act, it appears that discrimination based on an employer’s perception of disability, even if the employee in fact has no disability, is actionable under this newer law as well.