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No harm in accommodating, even without official ADA disability determination

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in Discrimination and Harassment,Employment Law,Human Resources

The ADA is a tricky law. Not only is it illegal to discriminate against applicants and employees with disabilities, but it’s illegal to perceive as disabled those who actually aren’t.

It’s no wonder many employers fear that making accommodations might backfire. The employer reasonably may think that making accommodations will give the impression it believes the employee is disabled—and therefore it must regard her as disabled too. So the employer puts off agreeing to accommodations and waits until it is sure the employee really is disabled.

But that’s the wrong response.

Advice: A better way is to immediately make any simple and inexpensive accommodations, and then decide whether the employee really qualifies. That way, it’s clear you aren’t trying to avoid the accommodation process entirely—and courts won’t use the accommodations as proof you “regarded” the employee as disabled.

Recent case: Beverly Robinson claimed fellow employees at Morgan Stanley literally made her sick. When exposed to perfumes or fragrances, she got cold-like symptoms and felt she was in a “mental fog” or “comatose state.” Morgan Stanley responded to her accommodations request by separating her workspace from others, allowing her to use a different rental car company that didn’t use air fresheners in its cars and counseling co-workers Robinson identified as “problem perfume-wearers” to stop using scented products at work.

Meanwhile, Robinson’s performance slipped. Morgan Stanley fired her and she sued, alleging disability discrimination.

The court tossed out her case. First, it concluded Robinson wasn’t disabled under the ADA because her sensitivity was sporadic and didn’t keep her from working. The court decided Morgan Stanley’s voluntary accommodations indicated how seriously it took its obligation under the ADA to engage in an interactive process. It didn’t constitute an admission that she was disabled or show that the company regarded her as disabled. (Robinson v. Morgan Stanley Dean Witter, No. 05-C-04248, ND IL, 2007)

Final note: This case clearly shows the advantages of making simple, reasonable accommodations, even if you doubt that you really have to make them. The court was impressed with the company’s quick response and efforts to help out the employee. The court could see Robinson was manipulating a minor problem as a way to protect herself from legitimate criticism. It didn’t work in her case.

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