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This TOTALLY Bites!

telemarketer.pngRobert Johnson REALLY wanted to be a telemarketer. The only problem? He is missing 18 teeth. But Johnson wasn’t going to let that stop him. He applied for a telemarketing position, went through three days of training, and received generally positive evaluations from the telemarketer. Everything seemed to be going so well… until Johnson was let go because he “mumbled on the phone and was not a ‘good match’ for the job.”
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So Johnson sued the telemarketer under the American’s with Disabilities Act (the “ADA”). Describing his condition as a “cosmetic disfigurement consisting of some prominently visible absent front teeth,” Johnson claimed that his rejection was a pretext for discrimination. The federal district court didn’t buy the argument, so Johnson appealed.

What happened?


It’s a little confusing, because Johnson also sued the employer twice in state court (this ADA claim was in federal court) for defamation, negligence, retaliation and discrimination. He lost both state court cases. In this case, though (Johnson’s appeal of the dismissal of his ADA claim) the court quipped that “unlike Johnson, the Americans with Disabilities Act has teeth.” The Seventh Circuit reversed the decision and sent the case back to the federal district court.

And what did the federal district court do with it? They booted it, because Johnson had the chance to raise his ADA claim in the state court cases, and chose not to do so. Per the U.S. Court of Appeals for the Seventh Circuit:

[Johnson] omitted a claim under the ADA, lost on the merits, and cannot obtain a new decision from a second set of courts.

The federal court also said that, even if Johnson could raise his ADA claim, he would lose, because he is not “disabled” as defined by the ADA. Shazam! The cases are Johnson v. American Chamber of Commerce Publishers, Inc., et al., 108 F.3d 818 (7th Cir. 1997), Johnson v. Dunhill Temporary Systems, 1997 U.S. Dist. LEXIS 16771 (N.D. Ill. 1997), and Johnson v. Dunhill Temporary Systems, 1998 U.S. App. Lexis 12210 (7th Cir. 1998).

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