Supervisor’s Failure To Engage In Interactive Process With Disabled Employee May Convert Employee’s Resignation Into Constructive Discharge

by Franczek Radelet P.C.
Contact

In a case recently decided under the Americans with Disabilities Act (ADA)—Suvada v. Gordon Flesch Company, Inc.—a federal district court in Chicago allowed a production clerk’s claim for constructive discharge against her former employer, an office-services company, to proceed to trial. The day following the clerk’s diagnosis with stage-four cervical cancer, she called her supervisor to tell her she had cancer. She provided no specifics about her condition and did not advise the supervisor of any medical restrictions or treatment plan, as she did not yet have any. However, the employee did express concern about her ability to meet her job responsibilities in the future and asked whether any easier jobs were available. According to the employee, the supervisor responded that she needed someone who could perform the job during their upcoming busy season, pressed the employee to tell her whether she would be able to carry out her duties, and told her that she did not know of any easier jobs in the division in which they worked. When the employee continued to express anxiety about managing her workload, the supervisor asked her if she was giving her two-weeks’ notice. The employee responded that she did not wish to stop working. The supervisor told her that if she was going to resign, she had to do so in writing. The supervisor’s version of the conversation was different than the clerk’s, but both agreed that termination was not mentioned as a possibility.

Twenty minutes following this conversation, the employee sent an email to her supervisor, resigning her employment. In the email, she explained that due to her medical issues, she would not be capable of fulfilling her job duties. Later, she testified that she resigned because she thought she would be terminated if she did not and in any event, she did not want to “screw over” her co-workers by failing to fulfill her job responsibilities.

Denying the employer’s motion for summary judgment, the court found that the clerk’s notification to her supervisor that she had cancer was, in and of itself, sufficient to trigger the employer’s duty to engage in the interactive process required by the ADA. Among other things, the court found the supervisor should have asked follow-up questions to determine whether an accommodation was needed, and should have referred the employee to human resources or the employer’s website when the employee asked about the availability of easier jobs. Because the employee testified that the supervisor failed to do so, the court allowed her constructive discharge claim to proceed to trial.

The court acknowledged that under Title VII, the facts as alleged by the employee would have fallen short of what is necessary to maintain a claim for constructive discharge under that and similar non-discrimination statutes. The bar is lower under the ADA, the court held, because under that statute, employers have an affirmative duty to provide accommodations, not merely a duty to refrain from discrimination. Because the supervisor failed to engage in the interactive process immediately upon learning of the clerk’s cancer diagnosis, the employee’s belief that she would be terminated if she did not resign was reasonable, according to the court.

This case underscores the importance to employers of training all supervisors in the basics of the ADA. It is not enough to train only human resources personnel, as any supervisor’s misstep could result in employer liability.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!