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Don’t fear informal ADA accommodation: You can still challenge disability later

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

The ADA protects disabled employees from discrimination and requires employers to work to accommodate those disabilities if reasonable accommodations are possible. Most employers first learn about a potential disability when an employee asks for accommodations.

Because the duty to accommodate includes an “interactive process,” most employers start thinking about possible accommodations right away, before they are sure that the affected employees are actually disabled. That’s fine and won’t mean the employers can’t require medical proof later.

Agreeing to accommodate is not the same as admitting the employee is disabled.

Recent case: Beverly Robinson worked for Discover Financial Services as an internal auditor. She told her boss she was extremely sensitive to perfumes and fragrances. While the company wouldn’t order everyone to stop wearing perfume, it did arrange for Robinson to work in a location that minimized her exposure. When traveling, the company allowed her to use an alternate rental car service that provided fragrance-free vehicles.

As time went on, Robinson complained about specific employees who wore particularly offensive perfumes. Discover asked several to stop, and they did. By then, Discover had spoken to Robinson about performance problems. She also filed internal complaints about supposed irregularities in the accounting department. That’s when she began complaining that some employees seemed to be piling on the perfume in supposed retaliation.

When Discover fired Robinson for poor performance, she filed an ADA lawsuit. She alleged that Discover, by making accommodations, had regarded her as disabled.

The court disagreed. It concluded that Robinson couldn’t prove that she was disabled because she had no firm diagnosis, nor was she incapacitated by perfume. Plus, Discover merely tried to help—it never admitted she was disabled or treated her as if she were unable to work. (Robinson v. Morgan Stanley, No. 07-3359, 7th Cir., 2008)

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