In a recent unpublished opinion, that court reversed a lower court’s dismissal of an ADA retaliation claim, pointing out that an individual who is not adjudged to be a “qualified individual with a disability” still may be able to pursue a retaliation claim under that law, if that person took an action that is considered to be “protected” under the ADA and then suffered an adverse employment action. Hurtt v. Int’l Services, Inc., 6th Cir., No. 14-1824, September 14, 2015 (unpubl.).
Under the ADA, it is unlawful to discriminate against an individual because of that individual’s disability. The Act also includes a provision that prohibits retaliation against an individual. That provision states that:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
In 2011, Robert Hurtt was recruited to return to work at International Services, Inc. (ISI) as a senior business analyst after leaving the company in 2010. His return included a $70,000 yearly “draw,” and a 12% commission on sales. After returning to the company, Hurtt was required to travel extensively with little time for sleep, and began to have health problems and to experience anxiety. Although Hurtt repeatedly asked for a change in his schedule because of those issues, ISI did not comply with the request.
On September 4, 2012, Hurtt submitted an FMLA request when his anxiety and depression flared up. The following day, ISI terminated Hurtt’s draw and placed Hurtt on a “commission-only” pay scale. Although Hurtt reiterated his request for reinstatement of his draw, he did not return to work after September 4, and sent a letter dated September 18 saying that he would not be returning to ISI. He subsequently filed a lawsuit alleging disability discrimination and retaliation, as well as FMLA interference and retaliation.
ISI filed a motion for summary judgment, arguing in part that Hurtt had not shown that ISI was aware of his disability, and had not shown a “protected action” on which Hurtt could base his retaliation claim. The lower court granted ISI’s motion and dismissed the claims. On appeal, the Sixth Circuit reversed and remanded that decision, finding factual issues that would have to be decided by a jury.
Two of those factual issues are critical points for employers who are dealing with requests for accommodation from employees with medical or psychological impairments:
- An individual who is adjudged not to be a “qualified individual with a disability” under the ADA still may pursue a retaliation claim under the ADA; and
- Requests for accommodation are protected acts, sufficient to support a claim of retaliation.
While neither of these points is completely intuitive, there is case law in multiple jurisdictions to support them. Therefore, employers who train supervisors and managers to recognize and respond to requests from employees for accommodation should add these two points to that training to avoid the risk of an adverse decision from a judge or jury.