Jury Award for Failure to Accommodate a Perceived Disability Upheld

​The 3rd U.S. Circuit Court of Appeals upheld a jury verdict for an employee who claimed that her employer failed to accommodate her perceived disability, because the employer waived its argument that employees who are merely regarded as disabled are not entitled to reasonable accommodations under the Americans with Disabilities Act (ADA).

Assessing the plaintiff's work performance, a manager at First State Community Action Agency told the plaintiff, "You either don't know what you're doing, or you have a disability, or [you're] dyslexic." In response to this rebuke, the plaintiff consulted with a physician to see if she had dyslexia. The plaintiff received an evaluation from her doctor stating that she demonstrated signs of having dyslexia, but the evaluation did not include a formal diagnosis. The plaintiff provided a copy of the evaluation to her manager.

Six days prior to receiving the evaluation, the manager had placed the plaintiff on a performance improvement plan. When the manager received the evaluation, she forwarded it to the company's HR director, who e-mailed the plaintiff and told her that he did not believe the evaluation had any impact on her ability to perform essential job functions, and she was to follow the performance improvement plan. The next day, the plaintiff wrote to the HR director to request a reasonable accommodation. The HR director responded, "I fully understand and know [the] ADA. What you need to do is your job." The company fired the plaintiff a few weeks later.

She filed a lawsuit against the company alleging that she was fired based on an actual and perceived disability, and the company failed to accommodate her. During the litigation, the plaintiff admitted that she could not prove that she had dyslexia but argued that because her employer perceived her to have it, she was entitled to a reasonable accommodation, just as someone who had dyslexia would be.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The ADA Amendments Act of 2008 has made clear that employees who are not actually disabled but are merely regarded as disabled are not entitled to reasonable accommodations under the ADA. Nevertheless, the plaintiff's employer never raised that argument at any point during the lawsuit. The jury found in favor of the plaintiff on her reasonable-accommodation claim but in favor of the company on the wrongful-termination claim.

The company requested a new trial based on two procedural errors it claimed the court made during the trial, neither of which was related to the "regarded as" theory of reasonable accommodation. The U.S. District Court for the District of Delaware upheld the trial verdict, and the company appealed that decision to the 3rd Circuit. On appeal, the company argued for the first time that the plaintiff should not have been allowed to proceed under the theory that she was entitled to reasonable accommodation due to her perceived disability.

Although the appeals court acknowledged that the plaintiff should not have been allowed to proceed under the "regarded as" theory of reasonable accommodation, it refused to overturn the plaintiff's verdict, holding that the company waived its argument by not raising it sooner. Because the company was confronted with this issue at several points in the litigation but did not argue that the plaintiff's argument was improper, the court held that the company could not resurrect the issue on appeal to the 3rd Circuit. Accordingly, the court upheld the jury's verdict in favor of the plaintiff on the failure-to-accommodate claim.

Robinson v. First State Community Action Agency, 3rd Cir., No. 17-3141 (April 1, 2019).

Professional Pointer: This case presents a vivid reminder of the importance of ensuring that employers raise all possible defenses early in the litigation to preserve their rights on appeal.

Kimberly A. Klimczuk is an attorney with Skoler, Abbott & Presser, the Worklaw® Network member firm in Springfield, Mass.

[Visit SHRM's resource page on the Americans with Disabilities Act.]