Remember when you were a kid and you asked a grown-up for something? Remember when that grown-up, trying to teach you manners, asked you, “What’s the magic word?”– and you hopefully said, “Please”? How does that work in the workplace though? I mean, yes, it’s certainly the right thing for employees making requests to say “Please”, but it’s not a legal requirement. That’s not really my point though (yes, I do have a point). What happens when an employee asks for an accommodation either under the Americans with Disabilities Act or the Pregnancy Discrimination Act? What’s the magic word? Is there a magic word — or phrase? Not really. Wait a minute. Does that mean you have to be a mind-reader and just “sense” when an accommodation is needed and try to provide it? What if you don’t have that particular gift? (Take heart. Most people don’t. There’s no shame in that.) Before you start looking for a tent with a gypsy and a crystal ball, read on and I will try to give you some clarity — without using a crystal ball or reading anyone’s palm, I promise.
As always, we’re going to use a real, live case example for guidance. The case is Mestas v Town of Evansville, Wyoming (1oth Circuit, Sept 6, 2019). Here’s what went down: Mestas began working for the Town’s Public Works Department as a sanitation truck driver in September 2012. On November 26, 2012 he injured his back at work after slipping on ice. He took medical leave until January 14, 2013, at which time he returned to work without restrictions. New employees are on probation for their first 6 months. On his return to work, Mestas’ supervisors informed him that his probation would be extended to May 24, 2013, due to “the extended lost work time, due to [his] injury on November 26, 2012”. After Mestas’ return to work, his supervisor allegedly treated him more severely than other employees because he was upset that Mestas had missed work. Allegedly he had Mestas perform tasks without co-worker assistance that could not be done by one person, and even told co-workers not to help him. Mestas also alleged being subjected to many derogatory remarks by his supervisor about his Hispanic origin, and co-workers confirmed that. Mestas did complain about the comments, yet the comments continued.
In April 2013, Mestas claimed that he had re-injured his back, although he did not tell his supervisors or provide documentation of the re-injury at the time. He did, however, ask his supervisor for time off for a doctor’s appointment scheduled for April 13, 2013 for a steroid injection to relieve his back pain. The supervisor granted the request. On April 15, Mestas reported to work to help with snow removal. He asked his boss if he could use his own snowblower because of his back pain. The supervisor denied the request and allegedly said something to the effect of “That’s what I have Mexicans for, to do this work”. The next day, Mestas asked to be excused from shoveling snow, because he had re-injured his back. The supervisor hung up on him. Mestas called back. The supervisor said, he did “not want to hear this s###”. On April 17, the supervisor fired Mestas, because things were “not working out”, and said Mestas should go “take care of [his] back and whatever”. Mestas then applied for and received Social Security Disability benefits dating back to April 16, 2013.
Mestas sued the Town of Evansville. You’re not surprised, are you? His claims were: 1) hostile work environment under the ADA; 2) retaliation for his taking medical leave under the ADA; 3) hostile work environment under Title VII (based on the derogatory comments about Mexicans); and 4) retaliation under Title VII (because he complained about the comments). The District Court granted the Town summary judgment on the hostile work environment claim because he “failed to establish a record of disability” and on his ADA retaliation claim, because he did not “establish that he engaged in protected activity under the ADA”. The 10th Circuit found that there were disputes as to genuine issues of material fact on his ADA claims and reversed. Here’s why:
The court first specifically held that a reasonable jury could find that Mestas’ requests for accommodations (i.e. his injury in November 2012, statements from his physician about the injury, requests to use his own snowblower, requests to be excused from shoveling snow, time off to get a steroid injection) established a record of a disability. The court cited the ADA’s statement that “Whether an individual has a record of an impairment that substantially limited a major life activity shall be construed broadly” (emphasis added). The court also held that a reasonable jury could have found his requests to be protected activity under the ADA. The court also reasoned that Mestas’ requests themselves indicated that they were due to his back injury.
The Town argued that Mestas’ retaliation claim should be dismissed, because Mestas was not a qualified individual and therefore not protected under the ADA. The court was having none of that, however. The court noted that proving disability was not necessary for a retaliation claim. Mestas need only have shown that he had a good faith belief that his rights under the ADA were violated. He need not actually have been correct. That is the case with pretty much an retaliation claim. Regarding requests, the court specifically said, ” There is no requirement that an employee use “magic words” like “ADA” or “reasonable accommodation” when making a request; the employee must only make clear that “the employee wants assistance for his or her disability.” citing E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011) (quotations omitted).
OK, when all is said and one, what are we supposed to get from this ruling? It boils down to this: If an employee asks for accommodations for a physical or medical issue that substantially limits one or more major life activities, you must treat it as a reasonable accommodation request. It doesn’t matter that the employee didn’t say “I have a disability”, or “I need a reasonable accommodation of a disability”. It doesn’t matter that the employee didn’t mention the ADA. As long as there is enough information there to put a reasonable person on notice that the employee may have a disability and that the request may be a reasonable accommodation, that is enough. You must then engage in the interactive process, whereby you discuss the request and attempt to provide a reasonable accommodation. Also, don’t have the direct supervisor handle the requests. Have another designated point-person, such as an HR representative or an office manager do so. Speak with your friendly employment counsel for more details on the how’s and why’s and wherefore’s. Otherwise you might end up learning one very expensive lesson. I think I’ve made my point, so I’ll stop here…
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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