Failure To Accommodate = Constructive Discharge?

(Published March 15, 2009)

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

A successful constructive discharge claim requires an employee to prove that their working conditions were so intolerable that they had no choice but to quit.  Could failing to provide a reasonable accommodation to an employee with a disability create such an environment?  It sure can.  Here's how.

Use Denied

Janice Norris, a retail cashier, suffered from a back and spinal condition.  After falling at work, her pain increased to the point that she could not stand for more than 15 minutes at a time.  A former manager permitted her to use a stool at her cashier station.  New manager Jerry Olmert wasn't so accommodating.

"The other cashiers see you using a stool and want to use one, too.  When I tell them they can't, they say that's not fair and accuse me of playing favorites.  That's not the perception I want to give off as a new manager," Olmert explained.

Need Defined

Norris took a medical leave of absence.  On her first day back, she didn't use a stool.  The next day, she experienced severe pain.  "Please, if I could just use the stool for 15 minutes," she pleaded.

"Get me a doctor's note saying you need to use a stool."

Norris obtained a note, which stated: "Patient is to stand no longer than 60 minutes at a time.  This is to be followed by 5-15 minutes of sitting (a stool would be beneficial)." 

When she handed the note to Olmert, he laid the envelope on his desk.  "Aren't you going to read it?" Norris asked.

"No.  I think it's best I wait until you, the district manager, and I can meet to resolve the issue."

"Can we meet now?"

"No can do.  The DM is out of town.  I'll let you know when he's back."

Norris left the store fully expecting Olmert to call her about the meeting.  When he didn't, she called him, and kept calling because Olmert never returned her calls.  The meeting never took place, and Norris never returned to work.  Five months later, she was fired for job abandonment.

Intentions Questioned

Norris fired back with a constructive discharge claim under the Americans with Disabilities Act.  A district court dismissed the claim because she hadn't suffered an adverse employment action; she was the one who walked off the job without resolving the issue.  An appeals court breathed new life into the claim and sent it to trial.  Reason: Norris presented sufficient evidence that may lead a jury to conclude that Olmert intended for her to resign and that it was foreseeable that she would when he:

• denied her use of a stool after she had used one for years;
  
  
• refused to read a doctor's note that she delivered upon his request;
  
  
• failed to organize a meeting to discuss the issue; and
  
  
• failed to contact her or return her calls regarding the status of the accommodation meeting or with alternatives to resolve the issue.
  

The appeals court ruling doesn't pave the way for constructive discharge claims every time an employer fails to accommodate an employee with a disability.  What it does is send a clear message to all employers that if an employee repeatedly requests an accommodation and you deny the accommodation without offering a reasonable alternative, you might be on the hook for constructive discharge if a jury concludes that the employee's subsequent resignation was both intended and foreseeable.

That's why it is imperative to refer all accommodation requests to HR.  In a timely manner, no less!  Not only that, but never take it upon yourself to rescind existing accommodations, especially if the only reason is because co-workers tag them as unfair.

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