How the heck does a plaintiff without a disability go to trial on her ADA claims?!?

The biggest impact on employers, when the Americans with Disabilities Act Amendments Act took effect on January 1, 2009, was to downplay whether an employee actually had a disability, and get businesses focusing more on whether there existing a reasonable accommodation that would permit an employee to perform the essential functions of the job.

Many management-side employment lawyers joked that, under the ADAAA, everyone had a disability. That’s how easy it was to establish.

Well, except maybe a cleft palate.

Yeah, sure enough, in Paxton v. Fluor Enterprises (opinion here), a New York federal judge determined that the plaintiff had not done enough to show that her cleft palate substantially limited one or more major life activities. Yes, the plaintiff had speech lessons, but she could talk ok. She had to watch what she ate, but she could eat. And, while the record contained evidence that plaintiff occasionally suffered from infections such as sinusitis and rhinitis, there was no expert evidence connecting them to her cleft palate.

Absent a disability, the plaintiff could not establish any disability discrimination.

So, what all this about a trial? Well, you see, the plaintiff complained about disability discrimination at work and, three weeks later, she was fired. Therefore, the court reasoned that the timing was suggestive of retaliation under the ADA. Hence, the plaintiff will have her day in court.

This is case an anomaly. Disability or not, to the defendant’s credit, it did try to work with the plaintiff to accommodate her. And that should continue to be your focus as well. That is, when an employee comes to your requesting a workplace accommodation, don’t waste much psychic energy determining whether the employee has a disability. Rather, focus on engaging in a good-faith interactive process to determine what reasonable accommodation exists to enable the employee to perform the essential functions of the job.