But, this recent federal-court opinion I read last night. The one about an employee with Attention Deficit Disorder who was fired after discussing vaginal massages with a co-worker (even Tyrion Lannister would blush) restores my confidence in my chosen profession.
Rather than just walk away, why did this employee claim violations of various federal employment laws? Because the blog gods are good, my friends.
Could the firing have been age discrimination?
Only in bizarro world.
To have a chance at proving a violation of the Age Discrimination in Employment Act, a plaintiff must show that she was replaced by a younger worker or treated differently from similarly situated employees outside the protected class. In this case, the plaintiff’s proof of age discrimination was a replacement 14 months older than the plaintiff. Well, that and the plaintiff’s subjective belief that her former employer engages in age-based discrimination. Not even Lionel Hutz would make those arguments.
What about a failure to accommodate– something about “patience?”
Yeah, sorry for burying the lede here.
So, the plaintiff alleged that her former employer failed to provide a reasonable accommodation for her ADD to allow her to perform the essential functions of the job.
The basic rule of thumb here is that the onus is on the employee to request a specific accommodation. Conversely, the employee may not rely on accommodations that she did not request. Here, the plaintiff testified at her deposition, “I did ask specifically for patience — . . . and that’s all I’ve ever asked for. I didn’t ask for anything — special equipment. I just want people to understand that, you know, I’m doing my best.”
Just a little patience. Yeaaaaaaah—aaaaah.
Unfortunately for the plaintiff, a request for patience, without more, does not constitute a request for a reasonable accommodation. Plus, the court noted that the employer told the plaintiff that, if she ever needed specific accommodations, she could discuss it and the employer would take steps to meet her requests. Except, she expressly disavowed making any specific accommodation requests.
Takeaway for employers
While not my favorite Guns N’ Roses album, G N’ R Lies still delivers (just not at work). And if you’re looking for some new music, I’ll pay it forward with Royal Blood’s self-titled debut album. Kinda Wolfmother meets Queens of the Stone Age, but better.
Oh, you want an employment-law takeaway?
There’s a fine line between patience — not a reasonable accommodation — and permitting an employee a little extra time to complete work assignments; provided that, doing so doesn’t create undue hardship. What I’m saying is, don’t get caught up in the nomenclature. Instead, steer the conversation away from the abstract and into the finite by requiring an employee who requests a reasonable accommodation to specify what accommodation(s) are needed to perform the essential functions of the job.