In a surprising decision, a federal court in New York denied an employer’s motion for summary judgment on an ADA retaliation case even though the employee had not been fired, had not had his schedule changed, and his hours, benefits and job title and pay remained the same.  The court, nevertheless, concluded that the employee’s testimony that (1) one manager “stopped saying good morning to him” and “spoke to him without a ‘warm welcome’ in his voice,” (2) another manager “continually monitored his work” and asked him about two instances in which he worked overtime without approval, and (3) they both “treated him like a criminal” were sufficient to allow the case to proceed to the jury on an ADA retaliation claim. The case is Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17). 

Adverse Action standard is broader for retaliation claims. The court based its decision on the ground that the definition of “adverse action” is broader for retaliation claims than for discrimination claims. In the context of the ADA retaliation claim, the court reasoned, an adverse employment action is an action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 

Granted Summary judgment to employer on ADA discrimination claims.  It is important to note that the court granted the employer summary judgment on the employee’s ADA discrimination claims, including a failure to accommodate claim. The court ruled in favor of the employer because the employee (who had swollen knees and difficulty bending and kneeling) failed to demonstrate that there was any accommodation that would have allowed him to perform the essential functions of his job as a groundskeeper. The job description appears to have expressly stated that the essential functions included performing physical activities that required considerable use of his hands, arms and legs. The court noted that the record reflected that the employer had tried to accommodate the employee by reassigning job responsibilities that required kneeling but that notwithstanding these efforts the employee could not perform the job. The court also concluded that with regard to the ADA discrimination claims there was not sufficient evidence of an adverse action. The court emphasized that the employee was still employed, and that he had not suffered any change in the terms or conditions of his employment, including that he was not discharged or demoted, his job title and benefits never changed, his schedule was not changed, and his hours and pay were not reduced. The employee claimed that he was given an increased workload after he started having problems with his knees but he did not show that this alleged increase was motivated by discrimination.

Lessons for Employers? This case is a reminder to employers that employees can lose on a discrimination claim but potentially win on a retaliation claim. Once an employee requests an accommodation or complains that he or she is being subject to discrimination or harassment because of a medical condition, managers and HR need to be cautious and ensure that they do not treat the employee differently (i.e., more harshly). It can be a natural instinct for a manager who has been accused of discrimination to avoid a complaining employee or perhaps to be less friendly. This can lead to a retaliation claim. Managers need to be advised how important it is to treat employees who have raised concerns in a positive and respectful way, and may need guidance on how to handle the potential awkwardness that can arise in such circumstances.