Yesterday, we discussed how an employee asserting a failure-to-accommodate claim under Title VII must establish that their request for a religious accommodation resulted in an adverse employment action. The same appellate court deciding that case also recently confirmed that the same maxim applies to failure-to-accommodate claims under the Americans with Disabilities Act.
But, there’s a rub.
The plaintiff, who had trouble hearing, worked as an inbound materials handler. He alleged that he requested but did not receive an ASL interpreter for various meetings, training, and a company picnic. He also alleges that he asked for text messages summarizing nightly pre-shift meetings but did not receive them either.
Did his employer fire or discipline him for requesting these accommodations? No.
However, the court recognized that a jury could reasonably find that if the defendant had accommodated the plaintiff, he would have received higher ratings in at least some of the categories of “Safety-Housekeeping,” “Quality of Work,” “Productivity,” “Teamwork,” and “Job Knowledge.” And that higher ratings in his evaluations would have meant higher pay.
Further, in at least one instance, the lack of an interpreter deprived the plaintiff of an adequate opportunity to resolve a dispute about an absence and the discipline the defendant imposed on him because of it. This was significant. His attendance record was a factor in his evaluations, and a factfinder could reasonably find that the discipline imposed on him for those attendance-related issues adversely impacted his scores. And, in turn, those lower scores adversely impacted the amount of the pay raises the plaintiff received.
Do you see where I’m going here? Even if an employee’s request for an accommodation itself does not motivate an employer to discipline that person or lead directly to punishment, the claim amounts to ADA discrimination when a failure to accommodate negatively impacts the employee’s advancement, compensation, training, and other terms, conditions, and privileges of their employment.
The bottom line is that an employer must accommodate a qualified individual with a disability (absent undue hardship) when doing so will enable that individual to perform the job’s essential functions. This often requires engaging in an interactive dialogue to discern available accommodations. When employers fail to discharge these obligations in good faith, and lawsuits follow, it’s the exception (and not the rule) that employers can escape liability for lack of an adverse employment action.