kaylastewart

Wrongful Termination because of revealing my disabilit

5 posts in this topic

I was wrongfully terminated after a month and a half on the job. A few weeks ago my boss told me I was learning slower than most people that she has hired. Well, i have a mental illness, mostly PTSD. Well, that evening I decided to text her and  let her know the reason why I was slower, was because of the mental illness. Her reply to the text was, "Oh ok". Not once did she ask if I needed any type of accomodations.
Also, written on my termination paperwork is another reason: taking 3 smoke breaks without clocking out. The doctor I work for did not have to clock out to take his smoke breaks, so why should I? I believe that the smoking matter should have been a write-up, not cause for termination.
And I also believe that my speed learning the software should not have been grounds for firing.
Things totally changed after I told her about my disability.
What should I do? Seek help from a lawyer?

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The ADA puts the onus on you to request an accommodation - not on her to offer one. Did you ask for one? Telling her of the disability is NOT sufficient.

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cbg is right, but let me offer more explanation to help you understand why. Mental disabilities create some of the most challenging situations under the Americans with Disabilities Act (ADA). Most mental disabilities are not apparent to others, unlike say a person in a wheelchair or a blind person walking with a white cane. Under the ADA, assuming an employee has a disability presents a set of problems for an employer because treating an employee differently because he or she is perceived by the employer as disabled runs the risk of violating the ADA too. So employers generally are not going to assume that an employee’s poor performance is due to a mental disability even if they suspect it might be. Even when the employer is informed the employee has a disability, the employer cannot simply assume the employee needs or wants any accommodation for that disability. With mental disabilities it is especially hard because even if the employer thinks that some kind of accommodation might help the employee the employer likely has no clue what accommodation might actually work. The employee is usually the best one, as an initial matter, raise the issue of accommodation and to suggest what kind of accommodation may help.

 

For these reasons, with some exceptions, the state of the law is that the employee needs to first tell the employer that he/she has disability (which you finally did) and to ask for help with that before the employer is obligated to provide any sort of accommodation. You do not need to use the exact words “reasonable accommodation” but your request must be clear enough that others would understand you are seeking reasonable accommodation.

 

Also, remember that it is always legal for the employer to fire you if your performance is poor unless the problem is poor performance AFTER a request for reasonable accommodation has been requested AND the employer failed to provide reasonable accommodation. The ADA does not give cover for poor performance; the idea is to provide the disabled help to overcome their disability and have the shot at meeting the job requirements.

 

As for the smoke breaks, well the employer may legally fire you for taking them even though the employer lets more senior employees take them. This would only be a problem if the employer is treating you differently because of some protected characteristic (race, color, national origin, citizenship, sex, religion, age (if age 40 or older), disability, or genetic test information).

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I totally disagree with previous comments regarding the responsibility being solely on you to request accommodation.   Your boss presented their evaluation of workplace problems and you presented an answer that put them on notice that you have a disability.  Therefor, the need for accommodation was clearly apparent to your boss so as soon as they read your text, they were effectively given notice. 

Here is some information posted on the American bar associations page.  I suggest you look into it deeper and contact someone in your state for specificity.  ~~~~~

Duty to Provide an Accommodation Without an Express Request
Although the general rule places the burden to request an accommodation on the employee or applicant, there are circumstances under which employers may have an obligation to provide an accommodation without a request to do so. Employers should be aware that some courts have suggested that if the employer knows both about the disability and the need for accommodation, it may have an obligation to provide the accommodation—even without an express request that a modification is needed because of a disability. This often occurs in circumstances where the employee’s disability is obvious and it is clear that the disability is interfering with the employer’s performance expectations.

 

Further, the EEOC’s guidance suggests that accommodation should be provided without request if the employer

 

  • • knows that the employee has a disability,
  • • knows or should know that the employee is experiencing workplace problems because of the disability, or
  • • knows or should know that the disability prevents the employee from requesting a reasonable accommodation.

 

See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), at Question 40. The EEOC clarifies that, under the latter circumstances, if the individual declines the offer of an accommodation, the employer will have fulfilled the accommodation requirement under the ADA.

 

Employer’s Duty to Engage in the Interactive Process
Once an accommodation has been requested or the need for an accommodation is obvious, the employer should initiate an interactive process with the individual. Courts generally have held that the interactive process requires employers to

 

  • • analyze job functions to establish the essential and nonessential job tasks,
  • • identify the barriers to job performance by consulting with the employee to learn the employee’s precise limitations, and
  • • explore the types of accommodations that would be most effective.

 

Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee’s requests, and discussing alternatives if a request is burdensome.

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14 minutes ago, HurryUpnWait said:

I totally disagree with previous comments regarding the responsibility being solely on you to request accommodation.  

 

The information you presented does not conflict with what I said. You will note that it starts out stating the general rule: it is on the disabled employee to request an accommodation if he/she needs one. And I made the same point.

 

On 8/13/2017 at 0:57 AM, Tax_Counsel said:

For these reasons, with some exceptions, the state of the law is that the employee needs to first tell the employer that he/she has disability (which you finally did) and to ask for help with that before the employer is obligated to provide any sort of accommodation.

 

I noted there are some exceptions, as did the article you posted. But as the article you yourself quoted says, those tend to be in “circumstances where the employee’s disability is obvious and it is clear that the disability is interfering with the employer’s performance expectations.” The problem, as I explained earlier, is that the employee’s mental disability is almost certainly NOT obvious, nor is it likely that it is clear that the disability is interfering with the ability to do the job. And even if that might have been apparent, it would not likely have been the case that the employer would know what accommodation to provide. It is these problems that make dealing with mental disabilities more challenging than with some other disabilities. And it is these problems which make it more important that employee speak up and ask for the help. The employer can’t be expected to know there was a disability, the extent of it, how it was affecting the employee’s ability to do the job, or what accommodation is needed on its own. The employee needs to provide that information.

 

Certainly the employee may wish to consult an attorney who litigates ADA cases for employees for an evaluation of his case. Perhaps additional facts that he/she has not shared would make a difference.

 

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