I am back in the office after taking an Alaskan cruise with a side trip to Denali National Park. Both are absolute bucket lists. If you have not done both, I highly recommend it. The scenery in Alaska is something that cannot be easily explained. If you have only done the cruise, definitely worth going back to Alaska in order to take in Denali National Park.

 

Turning to the blog entry of the day, it is about a case illustrating how not to do the interactive process. The case of the day is Powers v. Town of Durham, New Hampshire, here, decided by the United States District Court of New Hampshire on September 10, 2025. As usual, the blog entry is divided into categories, and they are: things an employer should not do with respect to the interactive process when it is aware of the employee’s disability; court’s reasoning denying summary judgment for the disability discrimination claim; court’s reasoning denying summary judgment for the retaliation claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Things an Employer Should Not Do with Respect to the Interactive Process When It Is Aware of the Employee’s Disability

 

 

  1. When a person makes a request to continue reasonable accommodations that have been working, have a consultant on the matter say that the person making the request for reasonable accommodations is causing problems and undermining the supervisor’s authority.
  2. After the reasonable accommodation request has been made, prepare a Performance Improvement Plan (PIP), and blindside the employee completely with that plan. Also, read the plan out loud and refuse the employee’s request to read it to himself in order to minimize the effects of his PTSD, even though the employer was quite aware of the employee’s PTSD.
  3. Revoke existing accommodation already working.
  4. Suspend the employee for how he reacted to being blindsided by the PIP due to his PTSD.
  5. In retaliation for demanding reasonable accommodations and the PIP meeting being handled with difficulty by the employee, insist on a fitness for duty evaluation.
  6. When the employee files a grievance with respect to the PIP and the fitness for duty evaluation demand that the employee finish listening to the PIP.
  7. Terminate the employee because the employee would not release the results of the fitness for duty exam while his grievance was pending.

 

II

Court’s Reasoning Denying Summary Judgment for the Disability Discrimination Claim

 

  1. The ADA requires reasonable accommodations for known mental limitations of an otherwise qualified individual (“otherwise qualified individual,” is the term used by the court).
  2. The employer was fully aware of plaintiff’s PTSD, and weekly therapy during business hours, the effects of PTSD on his communication and interaction skills, and his symptoms of panic and rumination due to PTSD, especially when confronted by conflict related to his work or job security. The extent of the employer’s knowledge and understanding of plaintiff’s limitations due to PTSD is a fact matter suitable for trial collect and are not summary judgment.
  3. A reasonable jury could conclude that his supervisor was very familiar with plaintiff’s condition and knowingly provoked plaintiff’s PTSD response during the PIP meeting by surprising him with the PIP in reading it out loud in a confrontational manner.
  4. 42 U.S.C. §12112(d)(4)(A), here, prohibits employers using medical exams as a pretext to harass employees or to fish for nonwork related medical issues and the attendant unwanted exposure of the employee’s disability and the stigma it may carry.
  5. With respect to the employer’s business necessity defense, the facts are plainly disputed and are material and therefore, summary judgment must be denied.

 

III

Court’s Reasoning Denying Summary Judgment for the Retaliation Claim

 

  1. The ADA prohibits covered employers from retaliating against employees who request or use (emphasis in opinion) reasonable accommodations, or who oppose disability discrimination.
  2. In order to prove up the retaliation claim, a plaintiff must show: 1) that he engaged in protected conduct; 2) that he experienced an adverse employment action; and 3) that the protected conduct and the adverse employment action were causally related.
  3. For the reasons discussed in §II of this blog entry, a reasonable jury could find that the plaintiff made a request for reasonable accommodations, was using a reasonable accommodation already in place, and complained about discriminatory conduct.
  4. No dispute exists that the employer imposed an adverse employment action against the plaintiff.
  5. The timing of the events and the evidence of the supervisor’s unusual familiarity with plaintiff’s disability and his possible use of plaintiff’s disability against him, could support finding in plaintiff’s favor on the elements of his ADA retaliation claim.

 

IV

Thoughts/Takeaways

 

  1. If an accommodation is working, taking away that accommodation from the employee is always a recipe for litigation even if the ADA would arguably permit taking away the accommodation because it didn’t have to be granted in the first place.
  2. Making a request for reasonable accommodations is a protected activity. Causing trouble for the employee after that request is made is also a recipe for future litigation.
  3. Refusing to accommodate an employee throughout the disciplinary process, is a bad idea and a recipe for future litigation.
  4. The court uses the term “otherwise qualified individual,” which is actually not an ADA term at all. Instead, that is the term used by the Rehabilitation Act. The ADA term is, “qualified.” All that said, “otherwise qualified individual,” (the Rehabilitation Act term), and “qualified individual with a disability,” (the ADA term), mean exactly the same thing.
  5. As readers know, a great deal of my practice over the last few years has dealt with working with counsel for those in the healthcare profession whose clients are getting pushed out of their profession because of their disability. So, it is very significant that this court says that the ADA prohibits using medical exams as a pretext to harass employees or to fish for nonwork related medical issues and the attendant unwanted exposure of the employee’s disability and the stigma it carries. This particular statement by the court may have much wider applications than just this particular case.
  6. Medical exam need to be narrowly focused on the issue at hand and not a fishing expedition. See this blog entry for example.
  7. Business necessity from this decision, appears to be an affirmative defense.
  8. After Muldrow, it doesn’t take much for a plaintiff to establish an adverse action. See this blog entry for example.
  9. Read this blog entry on the do’s and don’ts of the interactive process, here.