INVERNESS EMPLOYMENT DISCRIMINATION

LAWYERS SERVING CENTRAL FLORIDA

Having fought for the rights of employment discrimination victims for more than two decades, our Citrus County, Florida employment discrimination lawyers know that employers often discriminate against employees with a disability by refusing to provide them with a reasonable accommodation. Instead of making good faith efforts to seek a reasonable accommodation, employers often seek to obstruct, delay, and thwart employees’ requests for an accommodation. In many cases, employers even refuse to discuss possible accommodations with disabled employees, including accommodations that will allow them to continue working.

Congress passed the Americans with Disabilities Act (ADA) for the purpose of eradicating discrimination against individuals with disabilities and ensuring equal treatment for individuals with disabilities. As observed by the U.S. Third Circuit Court of Appeals in Taylor v. Phoenxville School Dist., 174 F.3d 142 (3d Cir. 1999), “discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations of disabilities.” Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment discrimination attorneys are dedicated to vindicating the rights of employees who have been discriminated against on the basis of disability.

Protection Against Disability Discrimination

Under the ADA, employers are prohibited from discriminating against a qualified individual on the basis of disability. The ADA’s protection against disability discrimination extends to all employees and job applicants. The ADA forbids discrimination on the basis of disability with respect to all terms and conditions of employment, including hiring, compensation, demotion, promotion, job assignments, job training, discipline, and termination. The ADA also defines “discrimination” on the basis of disability to include not making reasonable accommodations to qualified individuals with a disability.

ADA’s Definition Of Disability

In order to bring a claim for disability discrimination under the ADA, an individual must establish that he or she has a disability within the meaning of the ADA. There are three ways to be considered disabled for purposes of the ADA. Under the ADA, an individual is disabled if he or she: (1) has a physical or mental impairment that substantially limits one or more major life activities (the “actual disability” prong of the ADA); (2) has a record of a physical or mental impairment that substantially limits one or more major life activities (the “record of” a disability prong of the ADA); or (3) is regarded by an employer has having a physical or mental impairment (the “regarded as” disabled prong of the ADA).

Duty To Accommodate Disabled Employees

Under the ADA, the term “discriminate” includes not making reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose undue hardship on the operation of the business. Under the ADA, an employer commits unlawful discrimination if the employer does not reasonably accommodate a disabled job applicant or employee. Thus, as observed by the U.S. Tenth Circuit Court of Appeals in Selenke v. Med. Imaging of Colo., 248 F.3d 1249 (10th Cir. 2001), the ADA “establishes a cause of action for disabled employees whose employers fail to reasonably accommodate them.”

In order to state a prima facie case of failure to accommodate, as determined by the U.S. Sixth Circuit Court of Appeals in Keogh v. Concentra Health Servs., Inc., 752 Fed. Appx. 316 (6th Cir. 2018), an individual must show that: (1) he or she is disabled within the meaning of the ADA; (2) he or she is qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; (3) the employer knew or had reason to know of his or her disability; (4) he or she requested an accommodation; and (5) the employer failed to provide the necessary accommodation.

Qualified Individual With A Disability

Under the ADA, protection against disability discrimination extends only to a “qualified individual with a disability.” The ADA defines a “qualified individual with a disability” as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position held or desired. This means that an individual with a disability must demonstrate that he or she can perform the essential functions of the job without an accommodation, or, failing that, show that he or she can perform the essential functions of the job with a reasonable accommodation. If an individual with a disability cannot perform, with or without a reasonable accommodation, the essential functions of the job that he or she holds or desires, then the individual is not a “qualified individual with a disability” under the ADA and is not protected from disability discrimination by the ADA.

As explained by the U.S. Seventh Circuit Court of Appeals in Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998), in ADA cases “involving actual disabilities, as opposed to perceived disabilities or a history of a disability, it is usually true that the [employee] cannot perform the essential functions of the job without some kind of reasonable accommodation.” In cases where an employer regards an employee as disabled, the Dalton court pointed out, “the opposite may often be true” because the employee “may be perfectly able to perform the job without any accommodation, and the only thing standing in the way may be the employer’s preconceived notions of disability.”

Essential Functions Of The Job

In Kuehl v. Wal-Mart Stores, Inc., 909 F.Supp. 794 (D. Colo. 1995), the U.S. District Court for Colorado explained that the term “essential functions” is defined by the ADA as “the fundamental job duties of the employment position the individual holds or desires” and “does not include the marginal functions of the position. In determining whether a particular job function is “essential,” as observed by the U.S. District Court for the Western District of Texas in Molina v. DSI Rental, Inc., 840 F.Supp. 984 (W.D. Tex. 2012), “courts give consideration to the employer’s judgement, as well as looking to evidence, including, but not limited to written job descriptions, time spent performing the function, and consequences if the employee does not perform the function.” As explained by the U.S. Tenth Circuit Court of Appeals in Robert v. Bd. of Cty. Com’rs, Brown Cty., Kan., 691 F.3d 1211 (10th Cir. 2012), “the essential function inquiry turns on whether the employer actually requires all employees in the particular position to satisfy the alleged job-related requirement.”

Purpose Of Reasonable Accommodation

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for interpreting and enforcing the federal anti-discrimination laws, including the ADA. The EEOC’s regulations regarding the ADA explain that the purpose of a reasonable accommodation is to make “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability [ ] to perform the essential functions of that position.” Thus, when disabled employees are not able to perform the essential functions of the job because of physical or mental limitations, employers must provide them with an accommodation that will enable them to perform those functions.

Without the ADA’s reasonable accommodation requirement, employers could lawfully refuse to hire or discharge employees who are unable to perform the essential functions of the position held or desired. By requiring employers to provide disabled employees with an accommodation that will enable them to perform the essential functions of the position held or desired, the ADA enables disabled employees to obtain employment or to continue working. Thus, the ADA’s reasonable accommodation requirement is a linchpin of the ADA’s prohibition against disability discrimination.

Reasonable Accommodation Under ADA

The EEOC regulations regarding the ADA provide that once an employee requests an accommodation, the employer must make efforts to determine the appropriate accommodation. The EEOC regulations specifically provide that reasonable accommodations can include:

• Job Restructuring

• Part-Time or Modified Work Schedules

• Reassignment or Transfer to A Vacant Position

• Acquisition or Modification of Equipment

• Appropriate Adjustment or Modification of Examinations, Training Materials, or Policies

• Provision of Qualified Readers or Interpreters

• Other Similar Accommodations

Courts have also found that part-time employment and telecommuting may be a reasonable accommodation. Courts have further determined that a leave of absence or a leave extension for medical treatment or recovery can constitute a reasonable accommodation. As observed by the U.S. First Circuit Court of Appeals in Garcia-Ayala v. Lederie Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000), whether an accommodation is reasonable “turns on the facts of the case.”

Requesting An Accommodation

Under the ADA, an employee must make his or her employer aware of the need for an accommodation. If an employee does not make an adequate request for a reasonable accommodation, the employer’s obligation under the ADA to provide an accommodation is never triggered. Thus, it is imperative that an employee give sufficient notice of the need for an accommodation in order to trigger the employer’s duty to provide a reasonable accommodation.

As explained by the U.S. Tenth Circuit Court of Appeals in EEOC v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011), “although the notice or request does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation,’ it nonetheless must make clear that the employee wants assistance for his or her disability.” What matters under the ADA are not formalisms about the manner of the request, as pointed out by the Eighth Circuit Court of Appeals in Ballard v. Rubin, 284 F.3d 957 (8th Cir. 2002), but whether the employee “provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation. Because an employee need not use the word “accommodate” or “disability” to adequately notify an employer that the employee needs an accommodation, the U.S. Seventh Circuit Court of Appeals explained in Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) that “a request as straightforward as asking for continued employment is sufficient to request an accommodation.”

In harmony with federal case law construing what an employee must do to make an adequate request for an accommodation, the EEOC regulations provide that when “an individual decides to request an accommodation, the individual . . . must let the employer know she needs an adjustment or change at work for a reason related to a medical condition.” The EEOC regulations further provide that “to request an accommodation, an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation.’ ”

Once the employer knows of the disability and the employee’s desire for an accommodation, the burden is on the employer to request any additional information that the employer believes it needs. Thus, if there is any further information that the employer wants in order to justify a requested accommodation, the employer must ask for it. As explained by the U.S. Third Circuit Court of Appeals in Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010), because the “law does not require any formal mechanism or magic words to notify an employer that the employee needs an accommodation [ ], circumstances will sometimes require the employer to meet the employee half-way.”

ADA’s Mandatory Interactive Process

Once an employee requests an accommodation for his or her disability, as explained by the U.S. Seventh Circuit Court of Appeals in Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996), “the employer must engage in an interactive process to determine the appropriate accommodation under the circumstances.” Thus, as the Seventh Circuit observed in Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998), the ADA “imposes a duty upon employers to engage in a flexible, interactive process with the disabled employee needing accommodation so that, together, they might identify the employee’s precise limitations and discuss accommodations which might enable the employee to continue working.”

In Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862 (6th Cir. 2007), the U.S. Sixth Circuit Court of Appeals explained that the “interactive process requires communication and good-faith exploration of possible accommodations.” “Both parties,” as determined by the U.S. Third Circuit Court of Appeals in Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997), “have a duty to assist in the search for appropriate reasonable accommodations and to act in good faith.” “A party that obstructs or delays the interactive process is not acting in good faith,” as observed by the Seventh Circuit in Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996), and “a party that fails to communicate, by way of initiation or response, may also be acting in bad faith.”

As its core, as pointed out by the Eighth Circuit Court of Appeals in Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999), “the interactive process requires [ ] that employers make good-faith efforts to seek accommodations.” The Fjellestad court explained that employers can show their good faith in a number of ways, such as taking steps like the following:

• Meet with the employee who requests an accommodation;

• Request information about the condition and what limitations the employee has;

• Ask the employee what he or she specifically wants;

• Show some sign of having considered the employee’s request;

• Offer and discuss available alternatives when the request is too burdensome.

Failure To Accommodate Is Discrimination

Failing to make a reasonable accommodation falls within the ADA’s definition of “discrimination.” Consequently, as the U.S. Sixth Circuit Court of Appeals determined in EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018), an employer’s “failure to provide a protected employee a reasonable accommodation constitutes direct evidence of [disability] discrimination.” This means that when a disabled employee establishes that the employer failed to provide the necessary accommodation, the employee has proven that he or she was discriminated against on the basis of disability in violation of the ADA. In applying this principle, the Sixth Circuit explained, by way of example, in McPherson v. Mich. High School Athletic Ass’n, Inc., 119 F.3d 453 (6th Cir. 1997) that an employer’s “failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to discharge solely because of disabilities.”

Protection From Retaliation

Under the ADA, employees are protected from retaliation when they complain about perceived disability discrimination in the workplace. In interpreting the ADA, courts have also consistently held that employees cannot be retaliated against for requesting a reasonable accommodation for their disability. This means that when an employee requests an accommodation for his or her disability, the employer cannot subject the employee to an adverse employment action, such as reduction in pay, demotion, suspension, or discharge, in retaliation for having requested an accommodation.

Employment Law Blog

As part of our commitment to assist and educate employees in protecting themselves against abusive employment practices, our Citrus County, Florida employment discrimination lawyers offer more information about an employer’s obligation under the ADA to provide reasonable accommodations in our employment law blog.

Consult With Inverness Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment discrimination attorneys have more than twenty years of experience representing employment discrimination victims. If you have been denied an accommodation for a disability or have questions about an employer’s obligation to provide you with a reasonable accommodation for a disability, please contact our Citrus County, Florida employment discrimination lawyers for a free initial consultation. You will receive personalized and individual attention from our Citrus County, Florida employment law attorneys. Our employees’ rights law firm takes employment discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Citrus County, Florida employment discrimination attorneys are ready to take your discrimination case and fight for your rights.