On 2/7/17, a federal court concluded that an employee had presented sufficient evidence to prove that her tinnitus was a disability under the ADA because it substantially limited her hearing. The employee testified that she had difficulty hearing in loud environments and that she had a constant ringing in both ears. Other employees had to repeat things to her and she could not hear someone speaking to her from two to three feet away. The case is McKay v. Vitas Healthcare Corporation of Illinois (N.D. Illinois 2/7/17).
Employee did not request accommodation. Nevertheless, the court granted summary judgment to the employer on the employee’s failure to accommodate ADA claim on the ground that the employee had not requested an accommodation. The employee had been selected for an expense-saving reduction-in-force because she was rated the lowest performer of five patient care secretaries. The employee argued that if she had been accommodated her performance would have been better. The court noted that the 7th Circuit recognizes an exception to the usual requirement than an employee must affirmatively request an accommodation in situations where the employee’s disability impairs his or her ability to communicate effectively regarding the need for an accommodation. Here, however, the court commented, the employee had not provided any evidence that her tinnitus impeded her ability to ask for an accommodation.
Gap of 7 weeks between employee's HR complaint and termination does not prove discrimination. The court also rejected the employee’s ADA discrimination claim even though her employment was terminated seven weeks after she complained to HR about co-workers making loud comments in an irritated tone about her inability to hear others, laughing at the employee, and pounding on a desk if the employee asked a co-worker to repeat herself. At one point, the employee lowered the volume of a ringer on a phone because it was bothering her, and a co-worker said “Why do you care? You can’t hear anything half the time anyway.” And, another said “oh granny, you can’t hear good anymore.” The employee complained to HR who, in turn, spoke to a patient care administrator who said that she had already spoken with the co-workers about their behavior. The court noted that based on prior precedent in the 7th Circuit, a gap of 6 weeks between a complaint and a termination was insufficient to establish a causal connection and that, therefore, a gap of 7 weeks between this employee’s complaint and her termination pursuant to a reduction-in-force was also insufficient. The court also noted that the employee did not submit any direct evidence of discriminatory comments by the decision-maker to support an inference of discriminatory intent.
No hostile environment. Finally, the court rejected the employee’s ADA hostile environment claims on the ground that the actions and comments described above were not severe enough to create an objectively abusive working environment. In addition to the comments above, the employee also alleged that the co-workers made fun of her when she coughed, and positioned chart racks so that she had to walk around them to leave the area. The court said that all of the behavior described might be “unprofessional” but it it was not sufficiently severe to be a hostile work environment.
Lessons for Employers? In this case, the employer had a reasonably rigorous and objective process for ranking employees being considered for the reduction in force, which included a review of performance as well as of prior disciplinary actions. The employee was ranked the lowest and had the most warnings. Moreover, while this employee was the only patient care secretary who was let go, the employer laid off 3 other employees at the same time. These facts probably contributed to the court’s willingness to rule in the employer’s favor. If employers are considering reductions-in-force, it is advisable to have a robust evaluation process and to be particularly careful if any of the selected employees has made complaints of harassment or discrimination. All in all, the case is good news for employers.
