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Best Ohio Disability Discrimination Attorney Answer: If I have Asperger’s Syndrome, can I get fired for not getting along with my co-workers? What should I do if I was fired for being disabled? How do I prove disability discrimination?

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One of the many trends in hiring as of recent is to require potential employees to possess a social skills such as the ability to communicate with others, work as a team, or “get along well” with their peers. Many applicants apply for jobs without giving these requirements a second thought, believing that it is a skill everyone who passes elementary school learns. Unfortunately for applicants and current employees alike, “failure to communicate” or communication skills are often a reason cited by employers as grounds for termination of their employment. In the state of Ohio, because employment is at-will, employers can lawfully terminate an employee for communication issues, even if the employee does not perceive them to be at fault or in need of corrective action. The termination only becomes legally questionable when it is only a Trojan Horse for the employer’s real reason to terminate an employee for being disabled or a member of another protected class.

The Americans with Disabilities Act (“ADA”) makes it unlawful for employers to discriminate against “a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” The determination of whether there is a viable disability discrimination claim is based on the test set forth by the United States Supreme Court in McDonnell-Douglas Corp. v. Green.

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In the first phase of making a disability discrimination claim, the employee must show that: “(1) she suffers from a disability or handicap, as defined by the ADA; (2) she was nevertheless able to perform the essential functions of her job, either with or without reasonable accommodation; and (3) the defendant [employer] took an adverse employment action against her because of, in whole or in part, her protected disability.” Freadman v. Metro. Prop. & Cas. Ins. Co. The ADA at 42 U.S.C. § 12112(b)(5)(A) defines discrimination to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . ., unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”

If an employee gets past this first hurdle, the burden shifts to the employer to state a legitimate, non-discriminatory reason for its employment decision and to produce some credible evidence to support the reason given. This is not a difficult burden for the employer.

At that point, the burden would shift back to the employee to show that the reason given by the employer is a lie, or in lawyer-speak, pretext.

What if an employee suffers Asperger’s syndrome, a mental disorder that makes the finer skills of communication and interpersonal networking difficult if not impossible? The disability of Asperger’s syndrome is an autism spectrum disorder that includes symptoms of difficulty with social interaction, nonverbal communication, and deviant behavioral patterns. Individuals suffered from Asperger’s syndrome often exhibit intense interests in certain activities and exhibit a lack of empathy with others. In our modern day society employees are required to work closely with their peers and stays in touch 24/7 through email, text message, and even social networking. Does an employer have to accommodate an employee whose very disability makes it difficult to respond to engage in intense social networking and interpersonal skills?

The United States District Court for the District of Massachusetts was presented with this issue in Kinghorn v. The General Hospital Corp. In that case, Kinghorn was a hospital employee who suffered from Asperger’s syndrome. Kinghorn, upon hiring, began to snap at co-workers and told the HR manager he “hated working” at the facility. Kinghorn provided a form letter on Asperger’s syndrome and requested the employer provide strict schedule of day to day tasks to accommodate his disability. The employer attempted to do so, but nevertheless fired Kinghorn shortly thereafter due to his inability to communicate, which it argued was an essential part of his position at the hospital. The court concluded that no reasonable juror could find, based upon the employee’s behavior that he could fulfill the essential duties of the job:

Viewing the evidence in the light most favorable to Plaintiff, I agree that certain portions of Dr. Finkelstein’s deposition testimony are not entirely consistent with other, principally documentary, evidence. However, I nevertheless conclude that Plaintiff has failed in his attempt to identify genuine issues of material fact regarding his ability to perform the “essential functions” of his position by parsing Dr. Finkelstein’s deposition testimony for minor inconsistencies. At best, Plaintiff has demonstrated that, after the Center implemented a highly structured training program with close supervision, he showed marginal improvement in his ability to follow directions and work effectively. The law is clear that “even when an employer and employee have made arrangements to account for the employee’s disability — a court must evaluate the essential functions of the job without considering the effect of the special arrangements.” Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir. 2001)

Given the largely uncontroverted evidence that Plaintiff struggled to work effectively in his position even after the Center implemented a highly structured training program with close supervision, no reasonable jury could conclude that he was able to perform the essential functions of his position.

Does this mean that every employee in this situation will lose? Absolutely not.  But this points to the critical need to get an employment lawyer involved as soon as there is any sign of a problem.

Employees who are experiencing issues at work due to a disability may ask for an accommodation, but should keep in mind that the accommodation must allow them to fulfill the essential duties of the position. Employers may terminate an employee, as in Kinghorn, if the disability interferes with their ability to do the essential duties of the job.

Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

Disclaimer:

The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.