In numerous blog entries, we have talked about how magic words are not required. We have also talked about staying away from requests for excessive documentation. The question is how do the two work together. A published decision from the 11^th Circuit decided on November 9, 2022, Owens v. State Of Georgia, Gov.’s Office Of Student Achievement, here, addresses both of those questions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning explaining what an employee must do to show that a requested accommodation is reasonable; court’s reasoning that employer was within its rights to request additional information; court’s reasoning that plaintiff’s retaliation and pregnancy discrimination claims fail; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Following a C-section in July 2018, plaintiff informed her employer that she would need to work remotely for several months. In support of that requests, plaintiff provided her employer with two notes from her physician, which noted a C-section delivery, stated she was doing well, and concluded that she may telework until November 2018. Plaintiff separately informed her employer that she was seeking telework due to childbirth -related complications but provided no detail about the nature of those complications or how they would be accommodated by teleworking. Finding that information insufficient to support plaintiff’s accommodation request, her employer asked the plaintiff to either submit additional documentation or return to the office. At that point in time, her employer started making plans to figure out how the telework would work assuming the additional documentation was submitted. Plaintiff failed to submit additional documentation or return to the office. As a result, her employer terminated her employment.

 

II

Court’s Reasoning Explaining What an Employee Must Do to Show That a Requested Accommodation Is Reasonable

 

1. Case law and the statutory text of the ADA (the Rehabilitation Act and the ADA get interpreted the same way), established that an employee must identify her disability before an employer is obligated to engage in the interactive process about accommodating that disability.
2. For a plaintiff to sustain a prima facie case of disability discrimination, there has to be proof that her employer knew of her disability.
3. The Rehabilitation Act text imposes a duty on employers to accommodate only the disability known to them.
4. Identifying a disability in most cases means the employee provides at least some information about how a physical or mental condition limits her functioning.
5. The ADA requires employers to make reasonable accommodation only to the physical or mental limitations caused by the employee’s physical or mental condition.
6. Putting in employer on notice of a disability means an employee must identify at least in broad strokes the limitations her mental or physical condition imposes.
7. An employee must provide her employer enough information to assess how her proposed accommodation would help her overcome (court’s actual word), her disability’s limitations.
8. An accommodation qualifies as reasonable only if it enables the employee to perform the essential functions of the job.
9. The same accommodation might be appropriate for one disability and inappropriate for another, and the same disability may require different accommodations for different employees.
10. An employee must link her disability to her requested accommodation by explaining how the requested accommodation could alleviate the workplace challenges posed by her specific disability.
11. Employees must give employers enough information to respond effectively to an accommodation request.
12. When an employee triggers an employer’s accommodation duties, the employer has to expend time and expense exploring the universe of reasonable accommodations, identifying one that is mutually agreeable to the parties, and implementing it. To begin that interactive process, the employer needs information about the nature of the individual’s disability and the desired accommodation.
13. The link between the disability and the requested accommodation may often be obvious. So, an employee confined to a wheelchair would hardly need a doctor’s report to show she needed help in getting to her workstation if it were accessible only by climbing a steep staircase. In other circumstances, the link between a person’s limitations and the requested accommodation will be unclear without additional information. Since that information is typically possessed only by the individual or her physician, it is reasonable that the employee inform her employer how the accommodations she seeks will address her limitations before requiring the employer to initiate the interactive process.
14. The court expects an employee’s informational burden to be modest. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its accommodation duties. On the other hand, an employee is not required to provide her employer with detailed or private information about a disability to initiate the employer’s duty to engage in an interactive process about the need for an accommodation.
15. To trigger an employer’s accommodation duties, an employee with a disability only has to identify a statutory disability and explain generally how a particular accommodation would assist her.

 

II

Court’s Reasoning That Employer Was within Its Rights to Request Additional Information

 

1. Courts and regulators have recognized that neither childbirth nor pregnancy is a disability. That said, pregnancy or childbirth -related impairment can be a disability only if that impairment substantially limits a major life activities. However, childbirth and pregnancy themselves are not disabilities.
2. Although plaintiff unspecified childbirth related complications may have caused the disability, she never identified what the disability was. She did talk about medical procedures and treatments but not disabilities. There is no obvious limitation on functioning arising from having a C-section or a blood transfusion five or six weeks earlier.
3. In addition to failing to identify a disability, plaintiff also failed to explain to her employer why teleworking would accommodate her disability. Although her physician’s recommendation that she telework qualifies as a demand for a specific accommodation, it does not explain how the accommodation would alleviate any physical or mental limitation.
4. The information plaintiff provided to her employer amounts to nothing but vague or conclusory statements revealing an unspecified incapacity. Such information is not enough to trigger an employer’s duties to engage in the interactive process under the Rehabilitation Act.
5. It isn’t necessary to decide whether plaintiff’s claim fails on the ground that she caused the breakdown in the interactive process in light of the fact that sufficient information and documentation to start the interactive process was not given by the plaintiff to her employer in the first place.

 

III

Court’s Reasoning That Plaintiff’s Retaliation and Pregnancy Discrimination Claims Fail

 

1. Both the retaliation claim and the pregnancy discrimination claim are governed by McDonnell Douglas fee shifting paradigm. That paradigm requires a plaintiff to establish a prima facie case. If the plaintiff does that, then the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Once the employer does that, the burden then shifts back to the plaintiff to show that the reason given by the employer was a mere pretext for discrimination. The ultimate burden of persuasion is always on the employee.
2. Establishing pretext and avoiding summary judgment means the plaintiff must present significant probative evidence sufficient to permit a reasonable factfinder to conclude that the discriminatory animus was the but for cause of the adverse employment action. That means the plaintiff has to show that the evidence reveals such weaknesses, possibilities, inconsistencies, and coherency, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.
3. An employer may fire an employee for a good reason, bad reason, a reason based on erroneous facts, or for no reason at all, so long as its action is not for discriminatory reason.
4. If the evidence shows that the employer was dissatisfied with the plaintiff for nondiscriminatory reasons, even if mistakenly or unfairly so, the employer is entitled to summary judgment.
5. Plaintiff has not shown that being fired for failing to return her reasonable accommodation paperwork or for failing to return to the office as requested was pretextual.
6. Plaintiff’s failure to provide her employer with sufficient information to allow it to adequately assess her accommodation request meant that her employer was within its rights to request additional information from the plaintiff before deciding to approve her teleworking accommodation.
7. The evidence establishes that her employer fired the plaintiff not for any discriminatory reason but rather because the plaintiff kept her employer in the dark as to when it could expect to receive her paperwork and what the paperwork would reveal about her medical condition. She never communicated with her employer directly about how telework would reasonably accommodate any childbirth -related disability. She also failed to submit a medical release that would have authorized the employer to contact her doctor directly. Finally, she did not share with her employer that her doctor had a 20 day turnaround for paperwork request.
8. An employer is not required to wait indefinitely for necessary information supporting an accommodation request.
9. Employer had good reason to believe, even if it was mistaken, that plaintiff had been medically released to return to work.

 

IV

Thoughts/Takeaways

1. Putting an employer on notice means giving the employer notice of the disability in broad strokes of the limitations the mental or physical condition imposes.
2. The court uses an unfortunate choice of words when it says that an employee must provide her employer enough information to assess how her proposed accommodation would help her “overcome,” her disability’s limitations. The use of the word “overcome,” is unfortunate because you cannot overcome a disability. You can manage it. You can also compensate for it. Overcoming a disability is not a thing. Most disabilities cannot be entirely fixed or cured. Even if they can, that is a personal question for the particular individual as to whether they want to go down that route. For example, I have no desire to fix or cure my deafness. I do compensate for my deafness with Bluetooth technology, lip reading, and advanced hearing aids but none of that is fixing or curing it.
3. Identifying a disability means providing at least some information about how a physical or mental condition limits functioning.
4. Accommodation qualifies as reasonable if it enables the employee to perform the essential functions of the job. The particular statement “enables the employeee…,” is a huge victory for persons with disabilities because it is the disability being accommodated and not the essential functions of the job.
5. The court is absolutely right that the whole reasonable accommodation process is very individually based and one size does not fit all even when the same disability is involved.
6. An employee has to link her disability to her request for the accommodation by explaining how the requested accommodation alleviates the workplace challenges posed by her specific disability. This is another big victory for persons with disabilities because it again says that it is the disability being accommodated and not the essential functions of the job.
7. If the disability is obvious and the accommodation is also obvious, and employer needs to be very careful about what additional information it seeks. The EEOC guidance is consistent with what the court says on this point. If more documentation is needed, keep it narrowly focused and do not go on fishing expeditions. The court talks about seeking information that talks about how the accommodations address the employee’s limitations. Again, the focus is on the disability and not on the essential functions of the job. See also this blog entry.
8. Vague and conclusory statements do not work with respect to triggering the interactive process, but the informational burden is not a high one.
9. Considering the amendments to the ADA, identifying a statutory disability is not a high bar.
10. Pregnancy and childbirth are not disabilities but they can give rise to conditions that are.
11. Remember, that temporary disabilities can be actual disabilities under the ADA as amended.
12. While it is true that whoever breaks down the interactive process loses, the plaintiff still has to provide sufficient information for the interactive process to start and to go forward.
13. This was a case where the honest belief rule, which we discussed here, was in play and benefited the employer.
14. Communication between the employee and the employer is always important.
15. But for causation does not mean sole cause anymore, rather per Bostock, here, it means determining factor.
16. The language used by the court in this opinion suggests that the plaintiff has a relatively high bar to get by summary judgment with respect to showing that an employer acted with pretext.
17. The court’s focus on accommodating the disability is a huge victory for employees with service animals, and perhaps even emotional support animals, because those animals are most certainly accommodating the disability regardless of whatever the essential functions of the job may be.