I know this sounds like a contradiction, but a Dallas court recently said it wasn’t. So, a Texas employer can be cleared of firing an employee because of his disability—despite the Americans With Disabilities Act (ADA)—but still be liable for failing to provide a reasonable accommodation. The Dallas office of the Equal Employment Opportunity Commission (EEOC) pulled off this neat magic trick. More of the same will now be on its way.
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Employee Tape Records
“Chelsea” worked for AccentCare in their IT department. She started on April 23, 2013, and as a new hire, she was placed on a probationary period of 90 days. During that period, she was counseled for being absent from work for 2 full days and leaving early three times. On July 8, 2013, she e-mailed her supervisor and stated that she was bi-polar (which was news to the employer) and that she had to see her psychiatrist “ASAP.”
The next day, Chelsea e-mailed HR manager “Susan” to say she would be out for an extended period of time. Susan asked if they could speak by phone. When Chelsea telephoned Susan, she recorded the conversation. She tried to get Susan to say that she was going to be fired for her disability because she may not be able to come in that week. The following is a partial transcript of their conversation.
Chelsea: Okay so essentially because I have a medical condition and am not able to return to work you all are firing me.
Susan: Well we can’t, uh, we don’t have, as I told you . . . since you’re not covered under [the Family and Medical Leave Act] FMLA and there’s not really a medical leave available for employees who’ve been here such a short time.
Chelsea: Mmmhm.
. . .
Chelsea: Okay, I’m not asking you all to leave [my job] open indefinitely. As far as . . . I know, [I] may be able to come back to work on Friday. I have a follow-up visit with my doctor on Friday, and so I don’t know if I’m gonna to be able to come back to work on Friday or it’s going to be a month from now. But essentially it still falls back to that because I have a medical condition that’s stopping me from coming to work today then you all are firing me.
Chelsea’s e-mail to HR had stated that her doctor hadn’t indicated a date when she could return to work. The conversation then drifted off on that angle.
Susan: . . . your email to me earlier, [Chelsea], was that you didn’t know when you would be able to return to work.
Chelsea: Correct, and I go back to the doctor on Friday.
Susan: So I consider that to be indefinitely.
Chelsea: Well, no, I go back to the doctor on Friday, and . . . he can either release me or he can extend it. But one way or the other, regardless if I’m within 90 days or if I’m there a year, you all have a right to let me go whenever because we are . . . in an at-will state…
Susan: Uh-huh.
Chelsea: . . . but I’m not letting you all know that I’m—that I’m not going to come back at all. All I’m saying is, as of today, my doctor has me off, I go back to work on Monday. I’m sorry, I mean I go back to the doctor on Friday because he put me on medication. . . . if he releases me on Friday, then I’ll be back at the office on Monday.
You get the drift. The call goes back and forth like this for a while. HR says it needs to talk to Chelsea’s boss and will get back to her. Later that same day, Chelsea is informed that she is fired.
Off the Hook on Discrimination, Not Reasonable Accommodation
The EEOC sued AccentCare on these facts. The court tossed the allegation that Chelsea was fired for her disability. Why?
AccentCare had a legitimate reason for terminating her—namely her inability to come to work. Coming to work is an essential function of most jobs. No show, no job. Thus, there was no indication of employer animus towards Chelsea because of her disability.
But, not so with the claim that AccentCare failed to reasonably accommodate her disability. Here, Chelsea identified the disability and explained the limitations flowing from it. At this point, the ball was in AccentCare’s court to discuss a possible reasonable accommodation.
The bottom line according to the court (citing a case from the appeals court covering Texas): “An employer may not stymie the interactive process of identifying a reasonable accommodation for an employer’s disability by preemptively terminating the employee before an accommodation can be considered or recommended.”
So, why allow one claim but not the other?
Here’s the deal: In a discrimination context (i.e., firing for a disability) the employee must show that there was some animus towards the disability. Reasonable accommodation claims, by contrast, do not. If you have a disability, you’re entitled to a conversation about whether there can be a reasonable accommodation. Period.
Here is the trial court: “And the fact that an employee was terminated would not necessarily stand as an insuperable impediment to her reasonable accommodation claim because the [jury] might find that, had the employer reasonably accommodated the employee’s disability, she would not have been terminated when she was for the reason she was.” EEOC v. AccentCare, Inc. (N.D. Tex. 2017).
Bottom Line
HR is a tough gig. Sometimes, it takes Job-like patience to get the job done. So, take a breath when an employee tests your patience. And if an employee does have an ADA-covered disability, hit the brakes hard before you terminate. Once you fire, you lose control of the situation.
Michael P. Maslanka is an editor of Texas Employment Law Letter and can be reached at Michael.Maslanka@FisherBroyles.com.