Bad mix – accommodation request and firing

September 28th, 2018 by Robin Shea at Constangy


This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).

 

This ADA accommodation case went wrong in so many ways.

Robin Shea 

And the ex-employee gets a jury trial.

A federal court denied summary judgment to an employer in a failure-to-accommodate case brought under the Americans with Disabilities Act and Oregon state law, and the case is chock full of lessons for employers and for employees needing accommodation.

Marc Larson was an account executive for Oregonian Publishing Company. After a few years of satisfactory performance, the company decided to require greater use of its software program, "Salesforce." Some of the account executives, including Mr. Larson, didn't like Salesforce.

In the case of Mr. Larson, it appears that his reasons for hating Salesforce were mixed. To some extent, he just hated it. But he also had deteriorating retinas, a medical condition that made it difficult for him to read on paper or on a computer screen. Thus, Mr. Larson couldn't keep up with his required entries. And as a result of that, his records underreported his sales activity, and he was failing to meet his "data entry" goals.

At this point, you might ask, "Isn't it time Mr. Larson told his bosses about his eye condition and requested a reasonable accommodation?"

And I would answer, "Yes!"

But Mr. Larson didn't do that right away. Maybe he was afraid the company would think less of him if it knew about his condition. He began to get "dinged" on his performance reviews. He complained a lot about Salesforce, but usually to the effect that it interfered with the time he needed to make real contacts with actual prospects. In other words, nothing that would give his bosses reason to believe he needed a disability accommodation.

But he did finally disclose his condition orally to his immediate supervisor and to her boss in the last couple of months leading to his termination. He asked to be allowed to make fewer entries in Salesforce as a reasonable accommodation. The supervisor said she would talk to her boss about it, but she did not get back with him.

The next day, she put Mr. Larson on a performance improvement plan, which he disputed. (The employer agreed to modify the PIP.)

Maybe the employer was skeptical about this eleventh-hour disclosure of a disability. In any event, no accommodations were ever made, and so Mr. Larson's numbers in Salesforce continued to be poor.

Meanwhile, unbeknownst to anyone we've talked about so far, a decision was made to eliminate some account executives based on -- you guessed it -- their Salesforce numbers. Because Mr. Larson's numbers were so bad, he was selected for termination. The bosses who knew about his eye condition were not involved in the decision to terminate Mr. Larson. The individuals who selected Mr. Larson for termination didn't know anything about his eye condition.

Should the employer win this case, since the bosses weren't part of the decision to terminate account executives, and the big shots who made the decision knew nothing about Mr. Larson's disability or the need for reasonable accommodation?

According to the court, not necessarily. At least, no summary judgment. The court found that the employer could still be liable under a "cat's paw" theory. You may remember that the "cat's paw" theory applies when the person who makes the decision to take adverse action (in this case, a termination) bases that decision on "tainted" information from someone with a discriminatory motive.

For example, let's say you're a sales manager, and I'm your VP. You have a sales rep whom you'd like to terminate because she's pregnant. You don't want to tell me that, for obvious reasons. So, instead, you tell me that she is a terrible performer and that everybody hates her. None of which is true, but I take your word for it. Based on your input, I fire her.

Not if, but when, she sues our company for pregnancy discrimination, the company can still be liable -- even though I didn't have an illegal motive -- because you did have an illegal motive, and you influenced and tainted my decision. As the decisionmaker, my legal responsibility is to check out what you tell me before I act. If I had done so, I probably would have seen that your reasons for talking bad about her were suspect, and I wouldn't have fired her.

Getting back to our reasonable accommodation case, the court said that Mr. Larson's Salesforce numbers might not have been that bad if his immediate superiors had not failed to make reasonable accommodations for his vision problem. 

So the case will go to a jury.

LESSONS LEARNED THE HARD WAY

There are at least three lessons from this case, for employees and employers:

Lesson No. 1: Employees, if you have a disability (or pregnancy or religious obligation) that interferes with your ability to perform your job at your employer's standards, by all means disclose the issue to your employer -- preferably before you get in trouble -- and provide a doctor's note or whatever documentation is needed. And do it formally, in a sit-down meeting, so the employer is paying attention. If you mention it in passing, it may not register that you are seeking a reasonable accommodation. Even though Mr. Larson gets a jury trial, he'd probably have preferred not being terminated in the first place.

Lesson No. 2: Employers, take all mention of disability (or pregnancy or religious obligations) seriously, no matter how casual the reference might seem. If an employee indicates that a medical condition or religious obligation is preventing him or her from performing the job, you should treat that as a request for reasonable accommodation, whether the employee uses those words or not. That is your cue to start the interactive process with the employee.

Lesson No. 3: Decisionmakers, if you are basing a termination or other adverse decision on the word of supervisors or managers, and don't have first-hand knowledge of the relevant facts, then investigate it yourself before you act. Among other things, it's always a good idea to ask these questions:

  • Does the employee have any known medical conditions?
  • Has the employee ever asked for any kind of accommodations on the job?
  • Has the employee ever made a complaint, formal or informal, about discrimination or harassment, or filed a charge that we know about?
  • Has the employee ever made any complaint, formal or informal, that we did something illegal?
  • Has the employee ever engaged in any other type of legally protected activity that we are aware of?

If the answer to any of these questions is "yes," then tread very carefully, and consult with your employment counsel before making a final decision. 

Lesson No. 4 (BONUS): Apparently, the bosses who were aware of Mr. Larson's condition never told Human Resources about it. This is a grave mistake. When an employee requests any type of accommodation, always notify HR. It's even more important when you're thinking about disciplining or terminating an employee who has requested an accommodation.



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