HOW PLAYING HIDE THE ACCOMMODATION CAN EXHAUST AN EMPLOYER
In the several years since this blog’s inception, we’ve written about the Americans With Disabilities Act (ADA) and the Americans With Disabilities Act Amendments Act (ADAAA) quite a bit. Maybe even enough to make us a little fatigued. But probably not as exhausted as one employer who recently learned that it was being forced to chase down a moving accommodation target which one of its employees claimed it failed to provide.
Last month, in Sydnor v. Fairfax County, the Fourth Circuit Court of Appeals – which covers West Virginia – was presented with the question of whether an employee sufficiently exhausted her administrative remedies when she claimed in court that her employer unlawfully discriminated against her by failing to provide her with a particular accommodation for her disability, but had previously claimed in her discrimination charge filed with the EEOC that the employer discriminated against her by not providing her with a different accommodation.
By way of background, employees who wish to file a federal lawsuit for discrimination under the ADA are obligated to first file an administrative charge with the EEOC and exhaust their remedies in that forum. This requirement benefits employees and employers both. For employees, they can often get quicker and less expensive redress of their claims. Employers benefit from the reduced cost and the opportunity to get a head start on investigating and addressing the alleged discriminatory conduct once they find out what is at issue. Once the charge is filed, the EEOC will either find cause to formally litigate it on behalf of the employee, give notice that the employee can sue independently if desired, or settle the matter without litigation.
The whole purpose of this scheme is disrupted, however, if an employee is given the right to sue independently, but then raises different discrimination claims in his or her federal lawsuit when compared to the type of discrimination alleged in the EEOC charge. In Sydnor, the employee, a nurse, originally suffered a foot injury and needed surgery. After the surgery, her employer terminated her because it believed that her medical restrictions limited her ability to perform the full clinical duties required in her job.
Subsequently, Sydnor complained to the EEOC that she was denied the reasonable accommodation she requested from her employer but didn’t specify what the accommodation was in her formal charge. She did, however, identify the accommodation in the intake questionnaire which she completed for the benefit of the EEOC, saying that she requested to be assigned to do “lighter duty work in the clinic.” When she later was given the right to sue independently, she alleged in her lawsuit that the claimed accommodation was the ability to work full-duty in a wheelchair.
The federal district court which first had the case determined that these claimed accommodations were too dissimilar to put the employer on sufficient notice of Sydnor’s claim. The Fourth Circuit Court, however, disagreed and found no ‘gamesmanship’ in the employee’s manner of complaining because the administrative charge originally filed didn’t reference different time frames, actors, or discriminatory conduct. In other words, it wasn’t case where the charge complained of gender discrimination while the subsequent lawsuit complained of race discrimination. Here, the Court felt that, because the claims were “reasonably related”, and because the employer would have been put on notice of the employee wanting a wheelchair in any “reasonable administrative investigation” by the EEOC, the employee sufficiently exhausted her administrative remedies to sue even if there may have been somewhat of a difference in the claimed accommodation stated in the formal charge as compared to the lawsuit.
As the Court put it: “To be sure, there is a difference between light duty work and full duty work with the assistance of a wheelchair. The former would require Sydnor to engage in only a few discrete tasks, the latter to fulfill all of her normal responsibilities. But even here, these different proposals are linked together by a similarity – whatever the task, Sydnor faced the same difficulties in walking after her foot surgery and needed some form of accommodation. Because one logical accommodation for this specific disability was the use of a wheelchair, the County should not have been caught off guard when it was eventually raised.”
This decision serves as a reminder to employers that the EEOC charge process is an informal one, often initiated by employees themselves, and is designed to primarily put the employer on general notice of the type of discrimination claimed. In a situation where the disability is known but accommodation is the issue, employers are going to have a hard time making an argument that they were not on proper notice about a particular accommodation if it has or may have any possible connection to the known disability. Moreover, the nature of the ‘interactive process’ required in dealing with accommodation issues, where the employer and employee are supposed to work and communicate together to try and find a reasonable accommodation, makes the notice argument even less likely to succeed.
ADA and accommodation issues are always among the most tricky and difficult for employers and human resources professionals to manage. The Sydnor case certainly didn’t change that for employers in the Fourth Circuit.