Today’s blog entry is a two for one, both dealing in the failure to accommodate space broadly speaking. The first case is Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001). That case considers the question of whether conduct related to a disability has to be evaluated differently with respect to the same conduct that is not related to a disability. I realize the case is 21 years old, but it is still good law. Also, it provides a useful counterpoint to this blog entry, where we discussed how having a disability is not a get out of jail free card for bad conduct. Can the two cases be reconciled? I believe they can be. The second case is Adams v. Stealthbits Techs, here, what appears to be an unpublished decision decided by the United States District Court for the Southern District of Ohio on January 3, 2022. That case asks the question of whether a leave of unspecified duration is protected under the ADA. As usual, the blog entry is divided into categories and they are: Humphrey facts; Humphrey reasoning; Humphrey takeaways; Adams facts; Adams reasoning; and Adams takeaways. Of course, the reader is free to concentrate on any or all of the categories.



Humphrey Facts:


The facts are quite involved but they can be simplified greatly. What you have here is the plaintiff had obsessive-compulsive disorder and as a result had difficulty in getting to work on time if at all. Her employer was fully aware of the situation. The employer also allowed other employees who did the plaintiff’s job (medical transcriptionist), to work from home. The employer refused to allow her to work from home because of her history of not showing up to work on time and missing work, all of which was related to her disability. Plaintiff’s work that she did do from home was outstanding. Despite entreaties from the plaintiff, the employer refused to engage in an interactive process and subsequently terminated her. She filed suit.



Humphrey Reasoning


  1. Plaintiff was substantially limited in her ability to care for herself in that it took her significantly more time than the average person to accomplish the basic task of washing and dressing. According to the plaintiff, the process of washing and brushing her hair alone could take several hours, and she at times would prepare for work from 8 o’clock in the morning until 5 or 6 o’clock in the evening.
  2. An individual who has a physical or mental impairment causing him or her to take inordinately more time than others to complete a major life activity is substantially limited in that activity per the ADA.
  3. Plaintiff had the skills, training, and experience to transcribe medical records.
  4. Either the accommodation of granting her a leave of absence or allowing her to become a home-based transcriptionists were reasonable accommodations per the ADA that may have enabled the plaintiff to perform the essential functions of her job with or without reasonable accommodations.
  5. It is inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated. Therefore, plaintiff’s disciplinary record does not constitute an appropriate basis for denying her a work at home accommodation.
  6. The employer had an affirmative duty under the ADA to explore further methods of accommodation before terminating the plaintiff.
  7. An employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodations and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. Such a rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.
  8. An attempt by the plaintiff to perform her job function by means of a less drastic accommodation does not forfeit her right to a more substantial one upon the failure of the initial effort.” The employer had a duty to explore further arrangements to reasonably accommodate plaintiff’s disability.
  9. Plaintiff realized that the accommodation was not working and requested a work at home position. When the employer received that request, the employer could have either granted that or initiated discussions with the plaintiff regarding other alternatives. Instead, her employer denied the request without exploring any alternative solutions or even exploring with her the possibility of other accommodations. Rather than fulfill its obligation to engage in a cooperative dialogue with the plaintiff, the employer suggested the matter was closed.
  10. An employer fails to engage in the interactive process as a matter of law when it rejects the employee’s proposed accommodation by letter and offers no practical alternatives.
  11. With few exceptions, conduct resulting from a disability is considered to be part of the disability rather than a separate basis for termination. That link between the disability and termination is particularly strong where its the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacy resulting from that disability.
  12. In a footnote, the court notes that the texts of the ADA authorizing discharges for misconduct or inadequate performance that may be caused by a disability is in only one category of cases-alcoholism and illegal drug use. In line with that provision, the Ninth Circuit has applied a distinction between disability-caused conduct and the disability itself as a cause of termination only in cases involving illegal drug use or alcoholism.



Humphrey Takeaways


  1. OCD is a disability under the ADA. However, do not get hung up on diagnosis. Your best approach is to evaluate whether you have a physical or mental impairment that substantially limits a major life activity rather than focus on any diagnosis.
  2. Magic words are not required.
  3. The interactive process is always a good idea. Sound preventive law demands that the interactive process continue until it is clear the process had reached a dead end. In that way, the employer can satisfy its affirmative duty to explore further methods of accommodation before termination. The employer should always be sure to offer alternatives. Work with the person with the disability and call the Job Accommodation Network if your stuck.
  4. Interactive process
  5. If conduct is occurring that is arguably related to a disability, initiate the interactive process.
  6. Remember the do’s and don’ts of the interactive process, which we discussed here.
  7. The case is good law. If you look at the cases citing it, most of them are in the Ninth Circuit jurisdiction but not always.
  8. Be careful about policies that automatically deny accommodations for prior conduct where that conduct is a manifestation of an individual’s disability.
  9. While disability is not a get out of jail free card for bad conduct, as we discussed here, that doesn’t mean the employer can forget about the interactive process. In that way, I don’t think the two cases being discussed in this blog entry are irreconcilable at all.



Adams Facts


The facts of this case can also be simplified greatly. What you have here is a plaintiff with a long history of major depressive disorder. She gets recruited to work for another company as a result of a successful working relationship with an individual who moved over to that company whom she used to work with. The medication that she was on for years stopped working effectively and she has tremendous difficulty getting a medication regimen going that worked. That was not unusual for her, and in the past she would take leave from wherever she worked so that she could get the medication regimen ironed out. Plaintiff suggested 4 to 6 weeks of short-term leave as a reasonable accommodation to work out the medication regimen because that amount of time was sufficient in the past. The employer was having none of it and depending upon who you believe, either terminated her or plaintiff resigned. She then brought suit.



Court’s Reasoning


  1. The two kinds of voluntary resignation or constructive resignation and effective resignation.
  2. An effective resignation requires that the employee express an intention to resign and that the employee take some action to demonstrate that he or she is relinquishing his or her position.
  3. When plaintiff went to her employer to ask what her options were for a short medical leave to adjust to her new depression medication and told her employer that 4 to 6 weeks was needed in light of her past experience, that was not an intent to resign. Rather, a jury could conclude that was a request for medical leave and not an intention to quit.
  4. Medical leave can in some circumstances constitute a reasonable accommodation under the ADA. Factors to consider are the length of the requested leave, whether leave was provided previously, and whether the duration is definite.
  5. Even though plaintiff did not provide a specific return date, she did provide an expected duration.
  6. Whether three, or 4-6, or 6 to 8 weeks, a jury could reasonably conclude that the cost of the leave is not clearly exceeded by the benefit of plaintiff’s controlling her major depression.
  7. An employee has the burden of proposing an initial accommodation, and the employer had the burden of showing how the accommodation would cause an undue hardship. However, the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith. If a reasonable counter accommodation is offered, the employee cannot demand a different accommodation.
  8. The employer never commented on any hardship that plaintiff’s leave would cause. Further, a person from HR testified in her deposition that she and the plaintiff did not get into the interactive process and go down that route.
  9. The employer did not establish that a reduction in work hours was a reasonable counter accommodation since her doctor had recommended that she take a short leave while her body adjusted to the new medication. So, a jury could conclude that her employer terminated the plaintiff without considering her initial accommodation request and therefore failed to engage in the interactive process in good faith.
  10. There was also a failure to rehire claim that the court threw out.
  11. The court also allowed a wrongful discharge as against public policy claim under Ohio law to proceed to trial. Also,with respect to Ohio law claims, the court threw out several claims, including: reasonable accommodation; failure to engage in the interactive process in good faith; failure to rehire the plaintiff in retaliation for exercising her right to request reasonable accommodation and refusing to sign away protective rights; and discrimination by unequal treatment.
  12. The court also denied summary judgment on the Ohio law claim for breach of implied covenant of good faith and fair dealing.
  13. The court also denied summary judgment for the employer’s counterclaim for misappropriation of confidential and proprietary information under Ohio and federal law.



Adams Takeaways


  1. Indefinite leave is not the same thing as a leave of unspecified duration and the distinction matters a great deal.
  2. Empathy on the part of the employer can go a long way towards preventing litigation.
  3. Interactive process
  4. It is helpful to think of a reasonable accommodation as whatever gets the person with the disability to the same starting line as a person without a disability. Be creative and be sure to involve the person with the disability.
  5. Don’t forget about state law claims. Many times the state antidiscrimination laws can go further than the ADA or they can be quite a bit different.
  6. Interactive process
  7. Remember the do’s and don’ts of the interactive process.