Labor & Employment Law Daily Employees with non-disclosed disabilities aren’t entitled to non-requested accommodations
Monday, August 6, 2018

Employees with non-disclosed disabilities aren’t entitled to non-requested accommodations

By Lisa Milam, J.D.

Two cases this week address the challenges employers face managing employees with disabilities when those employees don’t inform them of their disability, let alone seek an accommodation for it. The plaintiffs in both cases had hearing impairments of which the employer was unaware until they came to light after performance issues arose. One employee rebuffed her employer’s overtures to engage in the interactive process, insisting she did not require an “accommodation”—she only needed a tape recorder. The other employee argued after the fact that her undisclosed impairment caused her performance problems, which the employer never gave her a chance to correct. Neither of their disability discrimination and failure-to-accommodate claims survived summary judgment.

The unaccommodating psychometrist. The plaintiff in Schuler v. Banner Health (D. Ariz., July 30, 2018) recently relocated to accept a job as a psychometrist with the health care provider. Psychometrists administer neuropsychological cognition tests, which are often conducted verbally and require interaction with patients regarding test responses. The employee had difficulty hearing and uses a hearing aid in her right ear; with the aid, she understands speech that is at a “comfortable loudness level.”

Can’t hear patient. About a month into the job, the employee administered a test to a Parkinson’s patient who suffered from hypophonia, or reduced speech loudness. The employee had a hard time understanding and recording the patient’s verbal responses. The patient later told the supervising physician that the employee had become “frustrated” and “angry,” had asked her to repeat her answers, and had to restart some of the portions of the test. This upset the patient, and she told the doctor her test performance had been compromised by the employee’s behavior. When questioned about it, the employee admitted she had trouble hearing the patient. This was the employer’s first inkling of her hearing difficulties.

A tape recorder, “not an accommodation.” The employee asked to use a digital tape recorder when administering the verbal sections of tests, as she had done with her previous employer. The doctor responded that they would have to consult with HR about her request. The employee followed up with an email to the physician outlining their discussion, explaining that she had a hearing aid that would need to be programmed specifically for this facility’s patient population. She also repeated her request to use a recorder and, in the meantime, suggested that a coworker could test patients with “documented vocal concerns.” To close, the employee recommended they “check back in a month or so” about the situation.

But a month was too long to wait, the doctor felt, so she contacted the employee’s supervisor to discuss the matter. The supervisor, in turn, inquired further about the employee’s hearing disability, asking whether her hearing aid was functioning properly and seeking details about her disability. The employee emailed back, saying she had no interest in discussing her condition and was adamant she was not requesting an accommodation. She repeated her request to use a tape recorder, and said she would be consulting an ADA representative.

Documentation requested. The physician and HR were both on this email chain, and HR weighed in, responding that the goal was to explore every possible accommodation option—the tape recorder among them—to identify the best solution for all involved. HR also instructed her that, while she did not need to provide the detailed summary requested by her supervisor, she would need some documentation clarifying her limitations in order to identify an appropriate accommodation. The employee’s response: “I want to talk to an Audiologist and ADA representative BEFORE I meet with anyone regarding this!!!!!!! I will likely not be able to answer any questions until I do so anyway. This may take a few weeks. Sorry. Not willing to budge on that.” She did offer to tape any tests she administered, if they wished, with that recorder she asked for.

The physician said they would need to come to at least some informal resolution in the meantime because patients had to be rescheduled in the coming weeks. This prompted the employee’s third response, again digging in her heels: She would not discuss any accommodation until a later date, as yet unidentified. “Please let me be clear—the answer is no. These can be tape recorded as we discussed.” (But the physician had already made it clear the employee would not be allowed to record patient examinations without obtaining their formal consent.) “Violating my rights is not an option,” she wrote. “Please do not ask me about this again until I have spoken with both an Audiologist and an ADA representative.”

Other performance issues, too. All of this arose amidst a backdrop of other performance issues—issues that predated her hearing difficulties, and persisted thereafter. The physician met with the employee to provide “feedback regarding test administration and time management challenges,” during which the employee was disrespectful, called the meeting “a waste of time,” and said she wouldn’t take “BS” from anyone. When the physician instructed her to administer tests a certain way, she pushed back, saying she would follow the procedures outlined by the test publisher and not would not depart from them “to please the neuropsychologist.” As for management’s concerns about the unnecessary overtime hours she’d been logging, she said “she would stay until she felt her work was finished.”

Termination. The relationship grew increasingly strained, with more contentious interactions of this sort, until the physician finally told the employee’s supervisor that the physician could not “in good conscience” allow the employee to test any more of her patients. The employee was fired, and filed suit, alleging failure to accommodate, discriminatory discharge, and retaliation.

Breakdown was employee’s fault. Rejecting her failure-to-accommodate claim, the court found it quite evident on these facts that the employee was to blame for the breakdown in the interactive process. The court stressed that the employee may have been entitled to put off the interactive process while she gathered further information; the process needn’t occur solely on the employer’s desired schedule. However, it refused to hold the employer accountable for any alleged failure to accommodate during a period in which the employee was unwilling to engage. Moreover, the court noted, the ADA does not permit an employee to unilaterally dictate the sole accommodation she finds acceptable.

The unresponsive supervisor. After 25 years on the job, the employee in Messenheimer v. Coastal Pet Products, Inc. (N.D. Ohio, July 27, 2018) was promoted from an “associate” (i.e., factory worker) position to supervisor, overseeing shift leaders and associates. A few years later, she was diagnosed with Meniere’s disease, an inner ear disorder which “causes symptoms of vertigo and fluctuating hearing loss to permanent hearing loss.” She managed her symptoms with medication and, due to “severe hearing loss,” hearing aids. She began using them in 2014, but her performance issues had surfaced well before then. She never informed her employer of her disability, though.

Communication problems. The employee started to get warnings from her manager that she needed to improve her communication with fellow supervisors, as well as her ability to instruct subordinates “in a calm and composed manner.” Her poor demeanor and supervisory style became an ongoing concern, and it was brought to the attention of the (higher-level) distribution manager, who issued a counseling report. The problems continued, though. A new supervisor observed the employee acting “rudely and negatively toward associates,” and five workers stepped down or transferred to other areas, due partly to her negative demeanor. So management moved her to a new department, a “clean slate.” (The employee continued to deny there were any problems with her managerial style, and suggested those who had complained were lying or were “out to get” her.).

More complaints, hospitalization. But complaints about her emerged there, too. Associates claimed she was “rude” and would “walk away a lot” when they tried to ask her questions. Finally, her new manager and distribution manager decided to demote her from her supervisory position—ostensibly the very day before she had an episode of vomiting, vertigo, and dizziness at work. (This was one of two work-related medical incidents; on neither occasion did the employer know she had an underlying disability.) The manager had to call an ambulance and the employee was taken to the hospital. She was out on medical leave for 11 days and, upon her return, she was notified of her demotion in a meeting. At no point in that meeting did she disclose her disability.

Mysterious doctor’s note. The employee asked HR to step in, suggesting the demotion was discriminatory. The HR director investigated and found a note in the employee’s personnel file, written on a prescription pad from a doctor, stating, “P[atien]t has Meniere’s Disease with intermittent vertigo. There may be times when she cannot climb a ladder.” Where the note came from was a mystery. There was no evidence of how or when it was placed there (the employee proffered none); the HR director said it was never given to her directly and she only discovered it when she opened the employee’s file to investigate.

Two months after her demotion, the employee requested a second meeting with HR. Now she wanted to explain that she had Meniere’s disease and related vertigo and hearing problems. This disclosure did not restore her to her supervisory position, though. Consequently, she filed a charge with the EEOC, then a lawsuit alleging the company discriminated against her by demoting her after taking Meniere’s-related medical leave and by failing to accommodate her disability.

No knowledge of disability. The employee asserted that the complaints which gave rise to her eventual demotion—that she wouldn’t respond to associates’ requests for help—were directly related to her inability to hear those requests; as such, the demotion was a direct consequence of her disability (her Meniere’s-induced hearing loss). The argument failed. For one, it was undisputed the employer didn’t know she had a hearing problem when it demoted her; moreover, there were numerous other longstanding, well-documented reasons for the demotion, such as a consistent failure to present “a friendly and professional image” and a hard time multitasking, “which causes her to get upset and lash out at others.” The employee undermined her own case: she admitted, when deposed, that there was no connection between her ability to hear and the allegations of subordinate mistreatment.

Further, she couldn’t establish that the employer knew or had reason to know she was disabled. She floated a constructive knowledge theory based on her two medical incidents, the documentation in her personnel file, and a question from a manager whether she was able to climb a ladder. She also pointed to the suspicious timing of the demotion the day after her return from medical leave. The court credited the evidence that the decision was made the day before her medical incident, however, and rejected her discriminatory demotion claim.

No accommodation requested. The problem with her failure-to-accommodate claim was that she never requested an accommodation. She argued that her request to HR to investigate her demotion amounted to an accommodation request. Assuming this were true, it was too little, too late, the court said. An employee cannot request an accommodation for the first time only after it becomes clear that an adverse employment action is imminent. “Excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.”

The employee also cited her employer’s failure to permit her to address her “alleged shortcomings” despite her requests to discuss these concerns, which had arisen “because she had difficulty hearing her associates.” But she had been alerted to these performance concerns repeatedly over the course of five years, during numerous meetings with management, and she had never availed herself of the opportunity.

The employee offered one more novel argument: because of her hearing loss, she had been unaware that she was not responding to her associates’ questions—meaning she didn’t realize that she was in need of an accommodation until she was demoted. But she offered no legal basis to support the notion that “an employer must offer an accommodation to an employee when the employee not only fails to ask for one but doesn’t even know she needs one.”

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