by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
& Gail Cohen, Esq. - Assistant General Counsel,
October 30, 2017
Despite the common feeling that employers have the ADA deck stacked against them, a recent case shows that courts will still closely compare the facts of an ADA failure to accommodate claims against the legally required elements of such a claim. It was a close call, but the co-employers prevailed when the employee did not raise enough racket about his mental condition to put the employers on notice of the need for an ADA accommodation.
Timothy Patton was an employee of a staffing company, Talascend. He was assigned to work at its client, Jacobs Engineering. He claimed to have been subjected to mockery and name-calling by co-workers and his supervisor because of his stutter. He also complained about the noise in his work space to his supervisor and asked that he move him to a quieter area “so that [his] nerves would not affect
[his] stuttering.” Patton also complained to Talascend (which offered to reassign him; he declined)
and emailed a lead engineer at Jacobs about taking time off from work due to his stress.
As a result of his stress, Patton had a panic attack while driving and caused a car accident. He did not
return to work at Jacobs and instead, filed a complaint with the EEOC and the Louisiana state equivalent,
accusing Jacobs and Talascend of harassment and failure to accommodate his disability in
violation of the ADA.
The trial court granted summary judgment in favor of co-employers Jacobs and Talascend, and
the 5th Circuit Court of Appeals upheld this ruling. It strikes me, however, as a lucky call for the
employers. Let’s focus on Patton’s claim that Jacobs failed to accommodate him under the ADA.
The ADA requires an employer to make reasonable accommodation[s], absent undue hardship,
“to the known physical or mental limitations of an otherwise qualified individual with a disability.”
The question was whether Jacobs knew that Patton had a “disability” and was asking for an
accommodation when he complained about noise in his work area.
Patton had made numerous complaints linking his nerves and stuttering to the noise in the workplace
and asked to be moved to a quieter work location. The court did not find this to be sufficient.
Rather, Patton needed to show that the limitations he experienced were the result of his disability,
and that Jacobs knew it. In particular, in the case of a mental disability like Patton’s, “specificity in
attributing a work limitation to a disability is particularity important.” Jacobs and Talascend could
not be expected to know of or understand Patton’s “childhood onset fluency disorder” without more
specific information from him.
With respect to the ADA hostile work environment claim, Jacobs again dodged a bullet. The 5th Circuit
found there was enough evidence of harassment about Patton’s stuttering by quite a number of people
and over an extended period of time to allow the claim to be sent to a jury. However, Patton had failed
to avail himself of both defendants’ anti-harassment policies and thus could not maintain his claim for
hostile work environment.
Patton v. Jacobs Engineering Group, Inc. and Talascend, LLC (5th Cir. October 24, 2017).
Pings for employers:
- There are no “magic words” for an employee to request an accommodation, but as the Patton
case makes clear, the employee still needs to provide enough information for the employer to
understand he is seeking an adjustment in his work conditions for a reason related to his disability.
- Be wary, though! The outcome of this case was a lucky one for the employers. If Patton had phrased
his complaints just slightly different, or provided a bit more information about his condition or his
need – or if the case had been determined by a different court – the outcome could have been
a jury trial. In that case, the evidence of harassment based on Patton’s stuttering could have
had an impact on the entire case.
- When in doubt about whether an employee is requesting an ADA accommodation, ask the employee,
“How can I help?” This opens the dialog without assuming the employee has a disability or
needs an accommodation. Then, with someone like Patton, you can then explore what is causing
his problem and what impact it has on his ability to work.
- Make sure your policies provide employees with clear avenues (more than one!) of complaint in
the event of discrimination, harassment, or retaliation – and that employees know about them.
Although this case does not give us much factual detail, this type of policy saved the employers
from liability because, apparently, Patton did not register his complaints in the correct manner
or with the correct persons – probably the HR department.
- Finally, as we always advise, train your supervisors so they know when someone might be asking
for an ADA accommodation and to whom they need to direct the employee to start the
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