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Best Employment Discrimination Attorney Reply: How do I get an accommodation at work for my disability? What is the interactive process? Is working from home a reasonable disability accommodation from my job ?    

 

Our employment discrimination lawyers frequently meet with employees that have a disability or serious injury that are having problems getting their boss or manager to approve accommodation requests at work. Some of the major concerns that employees frequent voice is that they don’t know how to get a work accommodation for their disability; and don’t understand how to a disability claim is established. Another issue that many employees ask about is whether working from home can be an accommodation. To best understand these issues, we will talk about to how disability discrimination cases are established and the requirements of the interactive by using a recent case addressing the requirement under the Americans with Disabilities Act (“ADA”) out of the Sixth Circuit Court of Appeal , which covers Ohio among other states.

In Hostettler v. College of Wooster, 895 F. 3d 844 (6th Cir. 2018), College of Wooster, the employer, fired Heidi Hostettler from its Human Resources Department when she could not return to work on a full-time basis due to her postpartum depression and separation anxiety. Although Hostettler was a relatively new employee and had not worked long enough to qualify for the Family and Medical Leave Act (“FMLA”), the employer gave her the full 12 weeks off for maternity leave, and then extended that leave when she identified her disability. When returned to work, she requested a modified schedule, which the employer agreed to. As part of the modified schedule, there was evidence that Hostettler was sufficiently working and home and not putting a strain on the department.

Nonetheless, the employer claimed that it was a strain on the department not to have her available full time. So, they fired here. Specifically, her boss sent a letter, stating that as a result of her updated medical certification requiring her to work only half-time, she was “unable to return to [her] assigned position of HR Generalist in a full time capacity” and was being terminated. So, as any employment law attorney will tell you, what the employer does next is important to evidencing the truth. In this case, the employer waited a few weeks and hired a temporary clerical employee to handle some of the administrative work in the department, but that person did not do any of the tasks that the department required from Hostettler’ HR Generalist position. So, instead of having the resources of Hostettler halftime, her firing left the department with actually less resources for employee relations, training, and hiring.

To compound the problem, five months later, the employer finally got around to hiring a replacement, who was a man, which is a key component to maintain a gender discrimination claim.

Let’s take a step back and look at the ADA basic legal requirements for a disability discrimination claim. The ADA makes it unlawful for an employer to “discriminat[e] against a qualified individual on the basis of disability” as it applies to hiring and firing. 42 U.S.C. § 12112(a). Unlawful discrimination also can be found where the employer is “not making reasonable accommodations,” id. § 12112(b)(5)(A), such as “part-time or modified work schedules,” 29 C.F.R. § 1630.2(o)(2)(ii) (2012).

There are two ways that an employee can prove employment discrimination – directly or indirectly. There is a different standard for each. See Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016). “Distinguishing between cases that involve direct evidence of discrimination and those in which the plaintiff is not able to introduce direct evidence is vital because the framework for analyzing the two kinds of cases differs.” Id. at 892 (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996) (abrogated by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc)).

Under the direct method of proof, an employee has to present sufficient evidence that (1) the employee is an individual with a disability, and (2) the employee is otherwise qualified for the job despite the disability “(a) without accommodation from the employer; (b) with an alleged `essential’ job requirement eliminated; or (c) with a proposed reasonable accommodation.” Ferrari, 826 F.3d at 891 (quoting Monette, 90 F.3d at 1186).

The indirect test, on the other hand, applies the burden-shifting approach called the McDonnell Douglas test. This test was set up by the United States Supreme Court

in the case, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), because employers rarely provide direct statements and evidence admitting to their discriminatory act against employees. Under this test, an employee establishes a prima facie case, or the initial elements, of an employment discrimination claim by presenting evidence that: (1) the employee is a member of a protected class (race/color, religion, gender/sex, national origin, age, disability discrimination); (2) the employee is qualified for the position at issue; (3) the employee suffered an adverse employment decision (fired, demoted, refused promotion, pay cut, etc); and (4) the employee was replaced by a member outside the protected class. Ang v. Procter & Gamble Co.,932 F.2d 540, 548 (6th Cir.1991) (relying on Gagne v. Northwestern Nat’l Ins. Co., 881 F.2d 309, 313 (6th Cir.1989), and McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). If the employee presents evidence of these elements, the employer then has the opportunity to state assert a legitimate, non-discriminatory justification for its adverse employment action.  Then, the burden shifts back to the employee to show through evidence that the employer’s stated reason is a pretext (which means a lie). Id. at 510-11, 113 S.Ct. at 2749; Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir.1994).

In Hostettler, the United States Court of Appeals for the Sixth Circuit quickly dispatched the employer’s argument that she was not disabled: “Under the post-2008 ADA law, Hostettler plainly is an individual with a disability. In keeping with the remedial purposes of the ADAAA, ‘[t]he definition of disability” under the ADA ‘shall be construed in favor of broad coverage.’ 42 U.S.C. § 12102(4)(A). That is because the primary concern of the ADA is ‘whether covered entities have complied with their obligations and whether discrimination has occurred,’ not whether an individual’s impairment is a disability. 29 C.F.R. § 1630.2(j)(1)(iii). I have already address the third and fourth elements above. So, the key really was whether the second element was met – which meant determining whether Hostettler could do the essential elements of her job with or without accommodation.

The Court found that there was sufficient evidence to submit to the jury on the second element of qualification because Hostettler testified that she was able to timely do all of her work and a co-worker testified that she was effectively doing all of the required work. The Court also looked to the last evaluation prepared by the same person that fired Hostettler, which was overwhelmingly positive for her work in the part time role. Additionally, the Court wrote, “Hostettler never received a performance improvement plan, discipline, written criticism, or even a single complaint about her work.”

In doing so, the United States Court of Appeals for the Sixth Circuit overturned the trial court’s finding that working full-time was an essential function of the job. The trial court had based this decision on the position being listed as full time, that Hostettler previously worked 40 hours a week, and that Beasley it was a full-time schedule. The United States Court of Appeals for the Sixth Circuit held that it is not enough for employer to just say that being present full time is essential but that the employer “must explain why Hostettler could not complete the essential functions of her job unless she was present 40 hours a week. But Wooster cannot make that required showing: as explained above, there remain disputes of material fact over whether Hostettler was able to achieve all of her job’s essential functions on a modified schedule.”

This now brings us to what is called the “interactive process.” Generally, the interactive process means that the employer must initiate a conversation with the employee requesting the disability accommodation to: (1) evaluate what are essential and nonessential job functions, (2) discuss how the employee’s disability is creating work limitations; and (3) explore what types of possible accommodations that would be most effective. In this case, the United States Court of Appeals for the Sixth Circuit, held:

The district court ruled that Wooster satisfied this requirement because Beasley met with Hostettler four times in early July, and they discussed Hostettler’s employment and the needs of both parties. The district court concluded that although the parties met and discussed accommodations, Hostettler was unwilling to accept anything less than her part-time schedule and “[t]he law does not require that the parties meet and that the employer concede to the employee’s request.”

But that conclusion is wrong for the same reason that the rest of the district court’s ADA analysis is incorrect — it decides between competing facts, thus misapplying the summary-judgment standard. It is undisputed that Beasley and Hostettler met four times in early July. But what is unclear is what was discussed in those meetings. Wooster states that “Beasley discussed with Hostettler her concerns regarding Hostettler’s failure to work full-time on at least four occasions.” Yet the record does not support that claim. In fact, the record shows that Beasley told Hostettler that she needed to return to full-time work during only one of those meetings.

Hostettler contends that she suggested extending her working hours past noon as a way of moving back to full-time work but that Beasley ignored the suggestion. Wooster does not mention this contention in its brief. Nor did the district court address it in its order. In short, there is competing record evidence that makes it unclear whether, or how, Wooster was willing to engage in the interactive process. For this reason also, summary judgment was improper.

Based on this ruling, the case will be returned to the trial court and Hostettler will have a chance to present her case to a jury.

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. Call our Ohio employment law attorneys at (216) 291-4744. 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.

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