Failure to Accommodate
To maintain a claim for failure to accommodate under the Americans with Disabilities Act (ADA), a plaintiff must prove that (1) they qualify as an individual with a disability as defined in the ADA, (2) their employer had notice of their disability, (3) they can perform the essential functions of their job with a reasonable accommodation, and (4) their employer refused to make any reasonable accommodation.
On July 19, 2022, the U.S. Eastern District Court of Virginia granted summary judgment in favor of an employer-defendant in a failure to accommodate and retaliation lawsuit under the ADA. Matammu v. Cnty. of Fairfax, Civil Action No. 1:20-cv-1468 (RDA/TCB), 2022 U.S. Dist. LEXIS 128185 (E.D. Va. July 19, 2022). The Court found that the school health aide plaintiff’s inability to report to work underscored the reality that she was not able to meet her position’s requirements, and as such was not a qualified individual under the ADA.
Additionally, the Court found that the employer was under no obligation to provide the plaintiff with the exact accommodation she requested; the plaintiff had requested a transfer to a school closer to her home to shorten her commute, and had been unable to perform satisfactorily at her current station school. The Court held that the plaintiff’s failure to perform her job functions, except under the terms she believed she could have performed them, did not make out an ADA claim.
To maintain a claim of retaliation under the ADA, a plaintiff must prove that (1) they engaged in protected activity, (2) their employer took adverse action against them, and (3) the adverse action was causally connected to their protected activity.
In Matammu, the Court found that while the plaintiff engaged in protected activity (requesting new accommodations), she failed to meet the other two elements. The Court, in determining whether the defendant took adverse action against the plaintiff, found that she failed to show that her termination was constructive (i.e., her resignation resulted from the employer creating a hostile work environment).
Even if the plaintiff were able to show adverse action, the Court went on to explain that she would fail on the third causation element. The Court pointed to the fact that the plaintiff engaged in protected activity on April 22, 2019, while the alleged adverse action (her termination) occurred on October 18, 2019, a gap of nearly six months. The Court then cited a Fourth Circuit case which held that “[a] six-month lag is sufficient to negate any inference of causation.” Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001).
Lessons for Employers
Employers hit with failure to accommodate and retaliation claims are not without recourse. As shown in Matammu, a court’s analysis of an employee’s potential claims is heavily fact-based, and the burden is on the employee to show that their situation fits the tests outlined by courts. Failing on even one the elements of either test may nullify a case altogether. Even so, employers should work to mitigate potential claims from arising in the first place.
Regarding failure to accommodate claims, employers are recommended to provide reasonable accommodations from the outset. Examples include making existing facilities accessible to handicapped persons, restructuring job-requirements, modifying work schedules, acquiring/modifying equipment and tools, and providing a standardized pipeline for reassignments should the need arise.
Retaliation claims on the other hand focus more on the employer’s actual conduct, and requires a more active and constant approach to mitigate liability. The U.S. Equal Employment Opportunity Commission provides guidelines for employers to comply with retaliation statutes. For example, employers should understand what constitutes a “protected activity,” or an employee’s exercise of rights to be free from employment discrimination. As shown in Matammu, requesting reasonable accommodations counts as a protected activity. Other recommendations include treating employees consistently and establishing open door policies for complaints.