Saturday, March 16, 2013

Hostility Toward Accommodation Shows Bias

The Americans with Disabilities Act of 1990 (ADA) requires that an employer provides their qualified employees with disabilities any reasonable accommodations, unless doing so would cause the employer undue hardship. That accommodation could be any " any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Refusal to accommodate an employee, or terminating them for requesting an accommodation, can allow employees to bring a claim against their employer for an ADA violation. Termination based on pretext can also give rise to a valid claim for an ADA violation. Pretext occurs when an employer formulates a legitimate reason for termination, but the underlying and true reason was discriminatory. A way to establish pretext is to show that discriminatory comments were made by the key decision maker or those in a position to influence the decision maker.
In a recent case, Kelley v. Correctional Medical Services, Inc., Kelley (the employee) shattered her pelvis while horseback riding. (Click click to access the case) She required surgery, and took a leave of absence for six weeks. Upon her return, Kelley was under several medical restrictions which included using crutches for ambulation, not using her hands for lifting, and keeping squatting to a minimum. Kelley could lift, push, and pull objects as long as she remained seated. When she began to use a cane at work, her supervisor told her she was not allowed to do so without a proper doctor's note. In response, Kelley acquired the note. That was not the first time that her supervisor made it difficult for her to work after her injury and had often suggested that Kelley "was misrepresenting the extent of her injuries and that she would be unable to walk if she had truly fractured her pelvis." That was further affirmed when a member of management alerted Kelley that the supervisor had said she "wanted her gone."
On the night shift of October 17, 2008, Kelley was on vacation but was called in to work. She came in only to realize that her assignment was changed to the main clinic. The main clinic responded to "code blues" which required quick response time, and the lifting of stretchers. Unfamiliar with the responsibilities of the main clinic, and also wary of taking on the physical responsibility with her disability, she asked another nurse to switch with her. The nurse initially agreed, but then refused. The supervisor was soon called to resolve the issue between Kelley and the other nurse via speakerphone. After the conversation, Kelley was escorted off the premises by security per instruction of the supervisor who claimed that refusing to take the assignment qualified as insubordination. A written recommendation was submitted by the supervisor to her superiors, stating that Kelley should be fired for insubordination. They agreed and fired Kelley.
The court found the evidence to clearly establish that Kelley and her supervisor had a tense work relationship and often disagreed on her need for accommodations. Her supervisor was also repeatedly hostile towards any accommodation. The court stated that this behavior was "probative of a pretextual ground for terminating Kelley's employment." Her supervisors comments went beyond mere remarks or comments and were actually discriminatory. The night of October 17 could be views as "the culmination of this history of disability-based conflict." The termination of Kelley was not because she was insubordinate, but rather due to her supervisor using a convenient excuse to rid herself of an employee she thought to be annoying. The court stated that an employer cannot use insubordination to mask retaliation for requesting a reasonable accommodation and vacated the finding of summary judgment in favor of the employee. The case has been remanded.

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