Employee Who Rejected Accommodations Loses ADA Claims

​A Microsoft employee who received performance complaints that he ascribed to autism spectrum disorder (ASD) and who later rejected the company's proposed accommodations could not establish an Americans with Disabilities Act (ADA) claim, the 5th U.S. Circuit Court of Appeals ruled.

In 2015, the plaintiff first requested accommodations for his ASD from Microsoft's human resource group when he was employed as an account technology strategist. His requested accommodations included working on only one project at a time, provision of an assistant for administrative tasks and permission to work from home. He expressed interest in transferring to an enterprise architect (EA) role, which is a senior-level executive position serving as a liaison between Microsoft and its clients.

Microsoft responded that some of the requested accommodations were incompatible with the EA role, and he withdrew his request. He then applied for an EA position and was recommended as a good fit for the role. He was hired as an EA and relocated from New Jersey to Austin, Texas, in the fall of 2015.

The plaintiff began working as an EA for a client in January 2016. His performance caused his manager to be concerned about the plaintiff's skill set, experience, and ability to lead and develop the required business and framework. He did not submit deliverables on time, and the work he did complete was of subpar quality. The client itself requested that the plaintiff not continue on the engagement. Microsoft thus removed the plaintiff from the client engagement shortly after joining it.

In conversations about his poor performance, the plaintiff revealed to his EA manager that he had ASD. His manager contacted human resources and temporarily removed him from the EA pool, removing him from EA engagements during this time. The plaintiff again began requesting accommodations.

In his second formal request for accommodations in April 2016, the plaintiff requested:

• A noise-canceling headset.
• A specialized job coach for employees with ASD.
• Training classes for managing ASD and attention deficit/hyperactivity disorder in the workplace.
• An individual to assist in translating his verbal statements into written formats, such as PowerPoint presentations, Word documents and e-mails.
• A scribe to record meeting notes.
• An individual to perform administrative tasks for him.
• A hand-held voice recorder.
• Access to a transcription service.
• Specialized time management and organization software.
• Manager training.
• Permission to bring an advocate to performance reviews.

Microsoft agreed to some of the requests, such as the noise-canceling headset, specialized job coach, time management and organization software, and training on managing employees with ASD.

The company rejected other requests, such as providing an assistant to translate verbal information into writing, because this was part of the EA job and quality would suffer if instructions were filtered through a less-qualified person. The company also found his requests for administrative help and for a scribe to record meeting notes unreasonable given the need for EAs to perform these tasks.

The plaintiff and Microsoft negotiated over accommodations through July 2016. The plaintiff continued to insist on the accommodations Microsoft found unreasonable. Ultimately, Microsoft deemed it could not reasonably accommodate the plaintiff as an EA, removed him from the EA role and placed him in a job-reassignment process. The plaintiff objected and said he would accept the accommodations that Microsoft previously offered.

While on job reassignment, the plaintiff provided his resume but would not consider jobs outside the Austin area or those that paid a lower salary. Instead, he took long-term disability leave in September 2016 and never returned to work.

In 2018, the plaintiff sued Microsoft, alleging failure to accommodate, discrimination and hostile work environment under the ADA while he was employed as an account technology strategist and as an EA. Microsoft moved for summary judgment on each claim, which was granted.

On appeal, the 5th Circuit considered whether the plaintiff's requested accommodations were reasonable. The appeals court found that the requests for individuals to assist him with translating verbal information into written materials, recording meeting notes and performing administrative tasks were not reasonable as they would excuse him from performing essential job functions. The court found that his removal from the EA role was temporary and thus not an adverse employment action. It also found that he could not establish harassment based upon the criticism of his work performance.

The 5th Circuit thus upheld the district court's dismissal of his claims at summary judgment.

Thompson v. Microsoft Corp., 5th Cir., No. 20-50218 (June 22, 2021).

Professional Pointer: Employers need not offer an employee preferred accommodations or accommodations that would take away essential job duties. An employee's rejection of reasonable accommodations or insistence upon unreasonable ones will often doom subsequent ADA claims.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]