To what extent may an employer deny a requested accommodation because of on an employee’s poor performance which is caused by a disability?
The Federal Reserve Bank of New York denied an employee’s request to telecommute or to relocate his office to a different Fed building because the employee had been rated as “below standards” in a recent evaluation. The employee made the request because his department had moved from two blocks from Ground Zero to a building overlooking Ground Zero. On 9/11, the plaintiff had been trapped in his office and “believed he was going to die,” the court said, citing plaintiff’s complaint. In January 2010, plaintiff’s department moved to the 23rd floor at 3 World Financial Center, which overlooks Ground Zero. According to plaintiff's complaint, he began having flashbacks to 9/11, developed difficulty sleeping and concentrating and became anxious and depressed to the point that he had suicidal thoughts. During that period, he received a “below standard” rating for the first time.
The Fed denied his request based on his poor performance and need for supervision. The court stated: “This explanation is troubling, since denial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rational for the ADA’s rule of reasonable accommodation on its head.” Goonan v. Federal Reserve Bank of New York, (S.D.N.Y. January 7, 2013). The court quoted from Borkowski v. Valley Central Sch. Dist., 63 F.3d 131 (2d Cir. 1995), that “failure to consider reasonable accommodations for disabilities which lead to poor performance which result in termination for performance deficiencies resulting from the disabilities amounts to a discharge solely because of the disabilities.” The court added somewhat cryptically: “Poor performance begs the question, but does not answer it.” The court denied the employer’s motion to dismiss the plaintiff’s claim.
Some employers have policies restricting employees with performance deficiencies from bidding on or transferring to another position. When the request to bid or transfer comes from an employee with performance deficiencies due to a disability, and is a request for a reasonable accommodation, those policies can be “troubling,” to quote the Goonan court.