By: Karen L. Piper
The Sixth Circuit has reiterated that seeking an accommodation is protected activity under the Americans with Disabilities Act (ADA) and Persons with Disabilities Civil Rights Act (PWDCRA). Hurtt v International Services, Inc. (unpublished, 9/15/2015).
Mr. Hurtt took a job with defendant selling its management and tax services to small and medium sized businesses. He was paid a draw against commissions. He was promised a four-day workweek, but was assigned so many businesses to solicit that he soon began traveling almost constantly. Mr. Hurtt developed hypertension, dizziness, and mental fatigue, among other conditions. He was prescribed sleeping pills to help him sleep.
Mr. Hurtt told his manager that his schedule left him with too little time for sleep. He asked repeatedly (almost weekly) that he be provided with additional “down-time” between assignments. He presented a doctor’s note to support his request for additional time off between assignments to allow him to get more sleep. His travel schedule was not changed. On the contrary, Mr. Hurtt claimed his manager responded to his requests by threatening to take away his draw.
After about a year on the job, Mr. Hurtt was diagnosed with acute anxiety and depression. He took four days’ FMLA leave. He requested to take additional FMLA leave on an intermittent basis to deal with his health issues. Mr. Hurtt’s employer processed his FMLA request, but the following day it eliminated his draw, retroactively, to the first day of his leave. The change in compensation left Mr. Hurtt over $22,000 in debt to his employer.
Mr. Hurtt did not report for work for two weeks following the change while he attempted to re-negotiate the terms of his employment, including compensation. His request was denied. He resigned and then sued his employer for disability discrimination and retaliation, among other claims.
In order to show retaliation, Mr. Hurtt had to show that 1) he engaged in protected activity, 2) his employer was aware of the activity, 3) he suffered an adverse employment action, and 4) a causal connection between the protected activity and adverse action.
The court ruled that Mr. Hurtt’s repeated requests for accommodation, i.e., his verbal requests for a four-day work week and eight hours sleep per night in a hotel room, was protected activity under both the ADA and PWDCRA. These requests were sufficient to show protected activity. Mr. Hurtt was not required to prove that he had a disability for his requests to be protected. The issue was whether Mr. Hurtt had shown a good-faith request for a reasonable accommodation.
“An individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA.”
Mr. Hurtt also provided sufficient facts to satisfy the other elements of his retaliation claim. His employer was aware of his requests for accommodation. It did not matter whether his employer knew he had a disability. Mr. Hurtt suffered an adverse action when his employer changed his compensation. The change in compensation resulted in his owing his employer over $22,000. These facts were sufficient for a jury to find the employer’s actions would dissuade a reasonable person from engaging in protected activity.
To establish retaliation, an employee has to show that he engaged in protected activity. Under most discrimination laws, protected activity requires an employee to show that he filed a complaint of discrimination or otherwise opposed a violation of the law. Experienced employment counsel, such as the author, and now you, know that an employer can be liable for disability retaliation if the employer takes adverse action against an employee who has requested accommodation.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office. She can be reached at (248) 743-6025 or firstname.lastname@example.org.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2015.