The ADA does not require do-overs or relaxing important job requirements to accommodate individuals with disabilities

A federal appellate court recently ruled that a university did not have to accommodate the disability of a professor seeking tenure by relaxing the tenure requirements or giving her a second chance to satisfy them.

It’s a reminder that employers can require individuals to perform the essential functions of the job and can refuse to promote (or hire) individuals who cannot meet the position’s requirements.

In this case, the plaintiff, who had been a high-performing professor, suffered a traumatic brain injury. Even with accommodations from the defendant, the plaintiff’s performance declined. When she was eligible for tenure, some of her students noted her failure to deliver in the classroom. When considering whether to offer tenure, the defendant considered anonymous student evaluations of the plaintiff. In the plaintiff’s case, the appellate court noted that the evaluation scores “dropped dramatically” below the acceptable level for tenure. Consequently, the defendant denied the plaintiff’s tenure application.

Then, the plaintiff sued, alleging the defendant failed to accommodate her disability under the Americans with Disabilities Act. The lower court entered summary judgment for the defendant. The plaintiff urged reversal. To succeed, she had to demonstrate that she was a qualified individual with a disability and the defendant failed to reasonably accommodate the disability. However, the plaintiff never advanced to the second step. The court noted that her “falling … scores and the bearing that had on her tenure decision belie a fundamental problem with her case: the impact that her disability had on whether she was a qualified individual.” Specifically, her poor student evaluations meant she could not satisfy the specific tenure requirements.

“Simply put,” noted the court, the ADA “does not shelter disabled individuals if they cannot fulfill the position’s requirements as prescribed by the employer or fail to meet their employer’s expectations…This is true even if, after further inquiry, an employer determines that the employee’s inability to perform the job is due entirely to a disability.”

Here, the defendant did not have to relax the tenure requirements to accommodate the plaintiff. Additionally, it did not have to give her a second chance, in this case, additional time to raise her student evaluation scores.

“Requesting a second chance is not a reasonable accommodation when it does not request that the employer change anything, but rather simply requests an opportunity for the employee to change their behavior.”

Although the accommodation rules are “flexible,” what the plaintiff requested, an accommodation after her negative tenure recommendation, is effectively a “do-over.” That is not a reasonable accommodation.