Tuesday, May 5, 2015

Failure to accommodate may not equal retaliation, says federal court

In Neely v. Benchmark Family Services (S.D. Ohio 4/21/15), the plaintiff claimed that his employer retaliated against him for failing to accommodate his undiagnosed alleged sleep disorder. His symptoms included averaging two or three hours of sleep per night, and randomly falling asleep during the day, including while at work. The court dismissed Neely’s ADA discrimination claim and failure to accommodate claim, in large part because there was no evidence that his sleep issues had a medical root. Then the court turned to Neely’s retaliation claim:

One might wonder how retaliation claim in the absence of a disability can be squared with the text of the statute…. The line of cases relied upon by the Sixth Circuit explains that “[a]n individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA as long as [he] had a good faith belief that [a] requested accommodation was appropriate.” Thus, “although ‘[i]t is questionable’ whether an employee who merely requests a reasonable accommodation ‘fits within the literal language of the statute,’  we are bound … to conclude that making such a request is protected activity….”

Plaintiff would have the Court extend this reasoning even further to himself, a litigant who was not disabled under the act, unlike the cited cases, did not request an accommodation and had not yet filed a formal charge…. Other courts have refused to extend retaliation claims to employment actions taken after an employee’s complaints of health conditions to a manager, and so will this Court.

What does this mean for you, as a practical matter? When an employee complains about a health problem at work, do your diligence. Determine if the employee is requesting an accommodation. If so, seek and gather from the employee medical information in support of the claimed disability and the requested accommodation. Then, make an informed decision about whether the employee is disabled if and if you should offer an accommodation. These steps will put you in the best position to defend against discrimination, accommodation, and retaliation claims under the ADA.

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