This company was so close to escaping an ADA lawsuit. Here’s what it did wrong.


The Americans with Disabilities Act prohibits employers from discriminating against qualified individuals because of a disability. A qualified individual can perform the job’s essential functions with or without a reasonable accommodation. Often, an individual with a disability will approach a supervisor or HR, identify their limitations, and ask for help. It’s a modest burden.

Then, it’s the employer’s job to continue a good faith, interactive process to determine whether a reasonable accommodation exists to help the employee without creating undue hardship on the business. When done right, it’s a win-win. But, when the employer impedes the process, it often results in a lawsuit.

I read here about one of them last night.

The plaintiff worked on a “swing shift” schedule, rotating between day and night shifts. The defendant claimed swing shifts helped maintain employee morale and were necessary to meet the company’s demands.

After getting diagnosed with severe depression, anorexia, and anxiety, the plaintiff took FMLA leave. Before returning to work, the plaintiff provided notes from his treating nurse practitioner and therapist, who recommended that the plaintiff not return to a swing shift schedule, which could directly affect his progress and future success.

The employer offered to put the plaintiff on a consistent schedule of only the day or night shifts for 30 days. But, he had to return to a swing-shift schedule after 30 days.

The plaintiff declined the offer but tried to continue communications with the company for the next month.

And then the defendant screwed up.

Rather than continue to engage with the employee to discuss alternatives, it delayed any substantive discussions with the plaintiff about potential accommodations. (It also refused to consider a permanent, consistent schedule. More on this in a bit.)

Without such an accommodation and no remaining available leave, the plaintiff resigned and found a new job.

Then he sued.

And he’s getting a trial.

The court noted that the defendant failed to show that an accommodation beyond 30 days would have been unreasonable or unduly burdensome. I think the defendant could have backed up its decision not to continue to suspend an essential job function (working the swing shift) if it had evidence to show that productivity waned or morale dipped when employees worked days or nights only.

However, the defendant’s delay and failure to engage the plaintiff meaningfully was its downfall. Potentially, the two sides could have discussed other possible reasonable accommodations (e.g., another available position for which the plaintiff was qualified).

And, if that didn’t work out, the defendant still would have discharged its legal obligation to engage the plaintiff in good faith.

“Doing What’s Right – Not Just What’s Legal”
Contact Information