Disability Discrimination? The court noted that a person does not have to live as a "hermit" to demonstrate that they are disabled in their ability to interact with others. The fact that the employee had disclosed this problem and the employer was aware of her expressions of concern were enough to establish sufficient evidence to make the issue triable. And (my HR Peeps will love this) the court found no documentation in the employee's HR file indicating any performance issues, giving rise to a reasonable inference that perhaps the medical condition was, in fact the cause for the discharge.

 ADA Retaliation? The employee sent an email to her immediate supervisor asking for a reasonable accommodation, including training to transfer to another position.  The supervisor told her only the manager could make that decision. So the employee forwarded her email to the manager who was out on vacation.  When the manager returned she received a report that the employee had been sleeping on duty. The next day the manager called the employee into a meeting and fired her. Later the manager contended that she did not read the employee's email while she was on vacation and not until after the discharge meeting. Ever heard, "timing is everything" or "appearance is everything."  Well, they sure can make an impact.  The request for accommodation was so close to termination it sure gave the appearance of retaliation. And the employee's email was found printed and lying on the manager's desk immediately before the discharge meeting. That sure made it appear reasonable that the manager either could have or should have seen the employee's request prior to the meeting.

Failure to Provide Reasonable Accommodation?  Possible strike #3 said the 4th Circuit. Even if the manager did not know about the email request the supervisor did. The supervisor even had a brief discussion with the employee.  The supervisor was a link and should have ensured that request was addressed before any adverse employment action was taken.

Lessons Learned?

• Document, document, document.  If you have zero documentation regarding unsatisfactory work performance (conduct, attendance, punctuality, etc.) it will be difficult to demonstrate that was your reason for termination was for anything other than some unlawful, discriminatory reason. So listen to your HR representatives. When they ask you for documentation they're just the messenger speaking on behalf of myriad third parties (federal and state agencies, courts, plaintiffs' attorneys) who will ask you for it if HR doesn't. 
• Train! Be sure every person who supervises even one employee understands the important role he or she plays as an agent of your company.  The supervisor's (in)action can create liability for the company, and sometimes for the supervisor as an individual. So keep the company safe and your individual supervisors safe - well safer at least. 

The ADA continues to be a hot topic and national Mental Health Awareness Month seems to be a great time to provide some updates.  So join this month's webcast, "ADA Updates." Just click here for more information or to register. $49 pp. Want your management team to attend? Click here for group rates. 

• Perhaps reconsider distinguishing between formal or informal complaints in your policy or practice.  Let your employees know that you will conduct a prompt and proper investigation of any concern they share.
• If you require employees to submit a complaint in writing talk to your company's legal counsel about modifying that policy or practice.
• Train your managers!  Remember the case above when the supervisor did not talk to the manager about the employee's concern before they fired her? Here again we see how important it is that managers and supervisors partner with HR.  If an employee shares a concern, work with HR or your business owner/manager to walk through next steps and action items. 

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters.