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If I felt a little snarkier, I would have gone with this instead of the confused emoji.
No, I’m pretty sure that’s not how the Americans with Disability Act (ADA) works.
Under the ADA, it’s just as unlawful to retaliate as it is to discriminate. A plaintiff alleging ADA retaliation must establish three elements, namely that: (1) she is protected; (2) she suffered an adverse action; and (3) there is a causal link between her protected status and the adverse action.
Now, hold that thought for a sec while I fill you in on the facts of this case that I’m talking about today. The plaintiff worked for the same defendant-employer for 25 years. At some point, she disclosed that she had multiple sclerosis. As an accommodation, the defendant provided her a flexible remote work schedule. But, eventually, the defendant limited the plaintiff to a certain number of remote workdays per week. That didn’t go over too well with the plaintiff, who then complained to the EEOC.
Eventually, the two sides settled and agreed on a transfer — same salary, benefits, and opportunity for promotion, plus a $30K payment. But, yadda, yadda, yadda, the plaintiff had later misgivings about the transfer and sued for retaliation.
Ok, so let’s go back to the legal standard I spelled out above and focus on the second element. Specifically, can a lateral transfer to which an employee agrees be considered an adverse action?
That’s a hard no according to the Fourth Circuit Court of Appeals. Take it from here Fourth Circuit:
[A] transfer is not an adverse action when it is voluntarily requested and agreed upon. That is what happened here: [the plaintiff] requested a lateral transfer, and the [defendant] agreed to place her in a position with the same pay and similar responsibilities. Because [the plaintiff] showed no adverse action, the district court correctly determined that she failed to make out a prima facie case of discrimination and retaliation.
Defendant wins.
Takeaways for your business:
- Usually, giving an employee her choice of accommodation is a smart move. You don’t have to if you don’t want to. The ADA only requires a reasonable accommodation, not necessarily the employee’s first choice. But, giving an employee her first choice accomplishes two things. First, you get a happy employee. Second, if things go sideways, you can always say that you gave the employee her accommodation choice.
- You don’t have to create a position for the employee to accommodate her. While a transfer is generally a reasonable accommodation, if there is no other position available for which the individual with a disability is qualified, you don’t have to create one. However, you should still explore other possible accommodations.
- The late Sean Connery’s best role was Juan Sánchez Villa-Lobos Ramírez in The Highlander. He’s best known as James Bond, and Connery won an Oscar as Jimmy Malone in The Untouchables. But there can be only one. And that’s Ramírez.