Warning: As odd as it may sound, don't believe you're safe from an Americans with Disabilities Act (ADA) lawsuit if the employee fails to prove a disability.
Most people think that if employees aren't considered "disabled" under the law, they aren't protected. Not true. The ADA's anti-retaliation provisions make it illegal to retaliate against an employee because she's filed an ADA lawsuit, or even if she's just asked for an accommodation for her supposed disability.
Don't allow managers to punish workers who ask for such accommodations, even in cases as unusual as the following:
Recent case: Customer service rep Sally Shellenberger made several requests for accommodation, saying she was allergic to her co-workers' perfumes. The company tried to accommodate her by moving her workstation and providing a fan. But the company denied her additional requests for a "fragrance-free policy" and an enclosed cubicle with an air-filtration system. So she filed a complaint with the EEOC, alleging disability discrimination.
When she was later fired for insubordination, she sued, charging the company with failing to accommodate her disability and retaliating against her for filing the original EEOC claim.
An appeals court said her failure-to-accommodate claim didn't pass the smell test. But the court did let her retaliation claim go to trial, even though she wasn't "disabled" within the ADA's meaning. (Shellenberger v. Summit Bancorp Inc., No. 01-1215, 3d Cir., 2003)
Bottom line: The ruling could open the door wider for your liability under the ADA.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- No separate emotional distress claims if conduct is covered by IHRA
- Madison Square Garden back in the penalty box
- 'Perfect' accommodation may still be unreasonable
- The clock is ticking: Note exact date employee learned of termination decision