The following summary is based on opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
The federal Americans with Disabilities Act (ADA) prohibits covered employers from discriminating against a qualified individual with a disability. 42 U.S.C. § 12112(a). A qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions” of his or her job. Discrimination under the ADA includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the accommodation would impose an undue hardship on the employer’s business. The law also prohibits retaliation against an employee who seeks to obtain a reasonable accommodation.
This case involves a municipal employee who claimed the city discriminated by refusing to provide her with a reserved parking space as a reasonable accommodation for her walking disability. She also claimed the city retaliated against her for making that request through a series of adverse employment actions.
To establish a discrimination claim under the ADA, a plaintiff must prove that (1) she was disabled within the meaning of the ADA, (2) she was qualified to perform the essential functions of the job, either with or without reasonable accommodation, and (3) the employer took an adverse employment action against her because of the alleged disability. All three factors must be met; however, the plaintiff failed to meet the second factor and her claim was dismissed. An “essential function” is a fundamental job duty that can extend beyond an employee’s technical skills and experience. Although the employee in this case had the skills and experience for her position, she was unable to meet one essential function of the job: regular attendance in the office. Physical presence in the office was required because the job simply could not be done anywhere else (the materials could not be removed from the office, the job included attending certain events in the office, and the required communication could not be accomplished without physical presence). The employee, however, was consistently absent between 20 percent to 50 percent of the time every year for over a decade, exhausting her leave time, using leave time donated by other employees and taking several unpaid absences. Because she could not prove she was able to perform this essential function even with reasonable accommodation, she was not “qualified.” Furthermore, it was questionable whether the requested accommodation (a parking space near the door) would have improved her attendance.
The second claim involved retaliation by the employer against the employee after she asked for a reasonable accommodation. Even a plaintiff whose discrimination claim fails may assert a claim for retaliation under the ADA. If it were otherwise, employers might be able to deter employees from requesting reasonable accommodations, and that would frustrate the intent of the law. The plaintiff must prove (1) she was engaged in protected conduct (in this case, requesting a reasonable accommodation), (2) she suffered an adverse employment action, and (3) there was a causal connection between the protected conduct and the adverse action. Although this employee claimed she had suffered a variety of adverse actions, the Court found none of them convincing because they either had no adverse effect on her job or there was no evidence that the actions were related to her request (in time or in motivation).
This case illustrates two interesting points about the ADA for employers. First, it is vitally important to identify the essential functions of each job. An employee with a legitimate disability may not prevail in an ADA discrimination case if he cannot perform those functions with or without reasonable accommodation. Second, when any employee requests a reasonable accommodation, the employer should be careful to avoid any retaliatory actions against that employee, even if the accommodation is denied.