Seyfarth Synopsis: Employees can sometimes sour on jobs they transfer to and, this in turn, can create practical and legal risk for employers, particularly where an employee changed jobs in connection with a disability accommodation. A recent decision from the United States Court of Appeals for the Fourth Circuit, however, makes clear that employees cannot base disability discrimination and retaliation solely on their employer's decision to accept an accommodation they voluntarily requested - including transfers.
The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs, prohibits employers from discriminating against employees because of their disability, and prohibits employers from retaliating against employees for exercising their rights under the ADA. The ADA does not, however, require employers to provide employees with the reasonable accommodation of their choosing.
What happens, though, when an employer chooses to provide an employee with the accommodation of their choosing? Does the employer's choice insulate them from ADA discrimination and retaliation liability? To the extent it does, will an employee's subsequent dissatisfaction with the accommodation change the analysis?
The United States Court of Appeals for the Fourth Circuit in its recent decision – Laird v. Fairfax County, Virginia - joined its sister circuits in addressing these questions, and, in doing so, and as shown below, is shining a light on the interaction between employees' requested accommodations, and the ADA's prohibitions on discrimination and retaliation.
Viola Laird previously worked in Fairfax County's Department of Procurement & Material Management. Ms. Laird, who was diagnosed with multiple sclerosis, asked her supervisor for unscheduled telework as a reasonable accommodation for her disability. Fairfax County initially agreed to this arrangement but, after the County had issues supervising and keeping Ms. Laird busy while teleworking, proposed a modified – twice per week with required in person attendance for meetings – teleworking arrangement as an accommodation. After the County implemented its revised teleworking accommodation, Ms. Laird filed a charge of discrimination with the Equal Employment Opportunity Commission claiming that the County's decision to retract its initial teleworking accommodation constituted unlawful disability discrimination.
Ms. Laird and the County began settlement discussions with the EEOC. During these discussions, Ms. Laird represented that a lateral transfer could resolve her dispute with the County. The County accepted her offer and transferred her to a different department performing in a similar position with the same pay and opportunity for promotion. Ms. Laird accepted, and began her new job.
The County, after Ms. Laird did not perform well in her new position, offered to transfer her to yet another job that would have had similar pay and opportunities for promotion as her initial position with the County. This time, however, Ms. Laird rejected the County's offer, and filed a lawsuit against her employer in federal court.
In her suit, Ms. Laird alleged, among other things, that the County discriminated against her because of her disability and retaliated against her for filing an EEOC charge. Both her disability and retaliation claims relied on the County's decision to transfer her, both in response to the EEOC settlement discussions, and after her performance in her initial transfer, constituted discriminatory and retaliatory actions. The Fourth Circuit, like the District Court before it, rejected Ms. Laird's arguments and granted summary judgment for her employer.
The Fourth Circuit held that Ms. Laird could not show that she suffered a so called "adverse action" – typically thought of as — but not limited to — termination or demotion – a key element in both her ADA disability and retaliation claims. In doing so, the Court found that:
- An employer takes an adverse action for purposes of a discrimination claim if it takes an action that adversely affects employment or alters the conditions of the workplace;
- An employer takes an adverse action for purposes of a retaliation claim if it takes an action that may dissuade a reasonable worker from making or supporting a charge of discrimination; and
- An employer does not take an adverse action for purposes of a discrimination or retaliation claim if the action it took does not result in some significant detriment to the employee.
Applying these principles, the Court found that Ms. Laird's claims "fail[ed] for a simple reason: [i]f an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action." Further, the Court noted that "a transfer cannot be because of [an ADA unlawful reason] if it occurred as a result of an employee's own request."
This decision highlights that an employee's subsequent dissatisfaction with an accommodation they requested cannot ordinarily form the basis of an ADA disability or retaliation claim.
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