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

Franczek P.C.

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.

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