Be careful about taking accommodations that are working away

I know I generally blog on Mondays, but this has been a strange week between client matters and an unusual family schedule.

Also, it isn’t unusual for those who blog to wind up blogging on things that some other blogger has covered. I don’t mind doing that so long as we have different perspectives that we can offer. This particular case is one of those things that I did see in the blogosphere/Internet, though the specific place I saw it escapes me at the moment. As is typical with my blog entries, I have divided this blog entry into categories. In this case: facts, issue, the court’s reasoning, and takeaways. Of course, the reader is free to concentrate on any or all of the sections of the entry.

I
Facts:

The case is Isbell v. John Crane, Inc., 2014 U.S. Dist. Lexis 37182 (N.D. ILL. March 21, 2014). In this case, you had a chemical engineer with ADD and bipolar disorder who was on a number of medications all of which made it difficult for her to function in the early morning because they did not kick in until several hours after she awoke. Her first supervisor informally had no problems with her arriving late as she was getting the work done and regularly showing up to work. Another supervisor subsequently took over, and he acquiesced to her request that she could continue to arrive at work at 10 AM so long as she completed her projects on time, which she did. She also furnished a doctor’s note to her second supervisor supporting the request to show up for work late. Subsequently, she suffered an injury and was given medication, which also did not help with being able to get going in the early morning. Of course, a different supervisor eventually comes in, and the supervisor has a problem with the late start since a late start was not typical for everybody else. When the early start was in force, the plaintiff of course had trouble meeting the early start and started racking up the penalty points. The reasonable accommodation process did not reach a satisfactory end and eventually plaintiff was terminated. Plaintiff then sued alleging disability discrimination. She also sued for retaliation and sex discrimination as well.

II
Issue

Can you have disability discrimination where an employer takes away a reasonable accommodation that is working?

III
Court’s Reasoning

Yes (on this issue, the PLAINTIFF’S motion for summary judgment was granted), and here is why:

1. Absent evidence that an existing accommodation places an undue hardship (the court uses, “undue burden” interestingly enough even though this is a title I case and the proper term would be “undue hardship”), on the employer, it is not reasonable for an employer to withdraw an existing accommodation;

2. If the existing accommodation is creating problems for the employer, it is the employer’s obligation under the ADA to work with the employee to adjust the existing accommodation in an attempt to correct those problems and not simply alter the accommodation unilaterally to the plaintiff’s detriment;

3. Before the management change, the employer had already made a reasonable accommodation to enable the plaintiff to do her job for some 2 1/2 years by allowing her to start later. Further, the employer offered no real reason as to why the new management, who had no prior knowledge of the special arrangement or of the plaintiff’s need that prompted it, should be entitled to start subjecting her to a one-size-fits-all timing regimen. In fact, the ADA precisely rejects uniformity of treatment absent an individual analysis of a person with a disability’s situation and their essential job functions.

4. This was not a situation where the employee was absent routinely, and therefore raised the question of whether attendance was an essential function of the job, rather, this employee regularly showed up to work and did her job, albeit starting at a later time.

5. The employer’s sudden replacement of a start time that was working with the more onerous schedule without considering the plaintiff’s known disability constituted an unreasonable failure to continue to accommodate that disability under the ADA.

As an aside, the court did wind up granting summary judgment to the employer on the retaliation and on the sex discrimination claims.

IV
Takeaways:

1. I can’t tell you how often I see in the case law a situation where something is working with one supervisor and then everything goes crazy when a new supervisor comes in. The employer needs to have a system in place so that supervisors that are coming into a situation are briefed on the situation and are trained in how to deal with them. Every new supervisor should have training on the applicable laws and regulations, including but not limited to the ADA.

2. Employers need to focus on whether an individual is living up to their capabilities with or without reasonable accommodations for their disabilities. If they are and such an accommodation does not constitute an undue hardship, either logistically or financially, leave well enough alone. After all, what the employer should want is a productive employee and not a situation where a policy is slavishly followed at the expense of the individual employee and the ultimate expense of the employer. As the court says in this case, imposing uniformity without doing an individual analysis of the situation the person with a disability finds themselves in with respect to their disability and the essential functions of their job, is something that the ADA specifically rejects.

3. If an accommodation is working, don’t change it unless you can back up that the current accommodation is constituting a logistical or financial undue hardship. Even if you can back it up, engage in the interactive process with an employee first instead of making a unilateral change.

4. An employer should not encourage slavish devotion to policy.

Comments

  1. Thank you for the post. I have seen this a lot with the turnover in managers in the hotel and food service industry.

    I am surprised this settled this way and often professionals, such as engineers do not have set schedules.

    Can there be an appeal?

  2. Thanks for the comments Steve. The point is important. That is, a set schedule and regular attendance are not the same thing. In this case, the plaintiff regularly attended her job and did her job, though not on the same schedule as others. Hidden in this case is a misperception about the Americans with Disabilities Act. That is, the bias that an accommodation is giving a person with a disability an unfair advantage. A reasonable accommodation under the ADA should do no such thing. Rather, it should get the person to the same starting line as everyone else. It certainly seems that for this particular plaintiff, the late start enabled her to do that. As for an appeal, I don’t see any reason why there couldn’t be. This case is in the Seventh Circuit and the Seventh Circuit plays the ADA pretty much down the middle. In light of this, I think there would be a good possibility that the plaintiff will prevail on appeal with respect to the ADA claim and the defendant would prevail with respect to the retaliation and sexual harassment claims. However, you never know. Since both sides lost at this level, at least in part, it is possible that either side or both sides could appeal.

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