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Check for retaliation before disciplining employee who requested ADA accommodations

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources,Leaders & Managers,Performance Reviews

Do you have a manager who wants to discipline an employee who just requested a reasonable accommodation under the ADA?

Before you approve the discipline, make sure the manager can document past problems or that the discipline is warranted based on a serious rule infraction that has happened since the request.

Otherwise, you risk an ADA retaliation lawsuit based on little more than bad timing.

Recent case:
Pamela Miles-Hickman worked as a sales assistant for a homebuilder. In the past, she had received informal accommodations for her claimed disability: chemical sensitivity.

After two years on the job, she went to HR and formally requested accommodations. HR explained the accommodations process and told her what documentation to provide.

Within a few days, Miles-Hickman’s supervisor gave her negative feedback about her work—and ordered her to sell three homes within the next 30 days. No other assistants had such a quota. The company then fired her after she took a few days off for medical tests.

She sued, alleging retaliation for requesting accommodations. The court agreed she had been retaliated against and ordered back pay. (Miles-Hickman v. David Powers Homes, No. H-07-0754, SD TX, 2009)

Final note:
Had HR insisted on seeing evidence of past performance problems, the court probably wouldn’t have seen the new demands and discharge as retaliation. However, the timing was highly suspect. Always consider how a judge or jury will see things. That’s especially true now that we are in an economic downturn. Juries don’t have much patience for employers these days.

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