Is this wrongful termination?

[dgs70]

What is the name of your state? WA

About a year ago I was diagnosed with severe depression and ADD. It was bad enough that I took 12 weeks of short term disability leave, returned to work on a half-time basis for another 8 weeks, and then returned to work full-time limited to 40 hours/week. (This was a salaried-exempt position.) This, along with a job coach, were the only accomodations requested at the time.

Now, six months after returning to work full-time, I was terminated due to "failure to meet minimum performance requirements." My understanding of the ADA is that there are certain obligations on the employer to help find accomodations that work for both parties.

An employer has a mandatory obligation under the Americans with Disabilities Act (ADA) to engage in a process with the employee to work out a reasonable accommodation to meet the employee's needs on an interactive basis both by (1) the employee's request to the employer for some accommodation based on disability, or (2) when the employer itself recognizes the employee's need for accommodation. The interactive process requires an analysis of the requested job and its essential functions; ascertainment of job-related limitations imposed by the disability; identification of potential accommodations and the effectiveness of each; and consideration of the preference of the disabled individual. An employer who fails to engage in the interactive process, in good faith, faces liability under the ADA if a reasonable accommodation could have been worked out.

It is obvious to me, my job coach, and my psychologist that my medical condition prevented me from performing the job at my full capabilities. Before experiencing my "down," I had received performance reviews indicating that I was meeting the requirements for the position.

My questions are as follows:

1. What constitutes "engaging in a interactive process" on the part of my previous employer? By my understanding, my employer did not participate in the process at all. Other than allowing the first two accomodations, none of the above steps were taken.
2. Is there an onus on the employer to have contact with my healthcare providers in attempting to find accomodations?
3. I don't see any indication of time limits. How long must an employer attempt to find accomodations before deciding they are not working? (In my case, I had continued to follow doctor's orders regarding trying different medications attempting to find a combination that worked. It is a time consuming process and we still have not found anything that works.)
4. Is there anything here that constitutes wrongful termination?

TIA

 

[Katy W.]

Are your performance problems tied to your disability and can you substantiate that?

No, your employer should not contact your healthcare people.

The interactive process normally is just that, in this case you are saying that your employer should have come to you and said that he noticed your performance was slipping and asked if you needed an accommodation.
Well, that is one theory, and it looks like you need to go to an employment lawyer for real advice on this. Your first step would be to file a charge with the EEOC if you decide to go that route.

Please note I am not giving my personal opinion as to whether this was wrongful termination or not. We don't have enough information to determine that and it would not be wise for you to take advice from some stranger on the internet anyway.

 

[cbg]

Even under an ADA accomodation, an employee can still be fired for failure to meet minimum performance requirements. The ADA does not guarantee employment; it only states that you can't be fired BECAUSE you are disabled.

It is the responsibility of the employee, not the employer, to self-identify oneself as being disabled and asking for an accomodation. According to the way I read your post, this never happened.

 

[dgs70]

It is the responsibility of the employee, not the employer, to self-identify oneself as being disabled and asking for an accomodation. According to the way I read your post, this never happened.

I apologize for not being more clear on this matter. Yes, I did identify myself as being disabled to my manager and to HR. That is why I was allowed to take 12 weeks of disability leave and have a job coach.

Are your performance problems tied to your disability and can you substantiate that?

Yes, they are. Whether or not I can substantiate it is open for interpretation I guess. My psychologist certainly believes it is so. I believe my performance reviews clearly reflect that as well. (Generally good before depression, generally not good after depression.)

The interactive process normally is just that, in this case you are saying that your employer should have come to you and said that he noticed your performance was slipping and asked if you needed an accommodation.

To some extent that is what I am saying. "Interactive" implies a two-way exchange of ideas to determine a mutually acceptable solution. I didn't get the sense that my employer was engaged in the process. They took a very passive role. Since they were aware of my disability and that my performance was not up to par (while I thought I was meeting the requirements for the position), it seems that they have a responsibility to be somewhat proactive in the process according to the quote in my initial post.

We don't have enough information to determine that and it would not be wise for you to take advice from some stranger on the internet anyway.

That is true, but at least this gives me a starting place and some preliminary information. (And what would this board be if nobody gave any advice? )

Thank you for your comments.

 

[Katy W.]

This is from the EEOC Guidance on reasonable accommodation:

"However, an employer should initiate the reasonable accommodation interactive process(109) without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation."

Whether or not you expressed to your employer that you were having performance problems related to your depression/ADD, whether or not other employees have been terminated without warnings for the same problems you were termed for, how serious your 'performance problems' were and how well documented, etc. will all play a part in determining whether or not there were unlawful actions taken here.

Not providing reasonable accommodation for a known disability is considered discrimination, but it is a stretch to say that this was wrongful termination - a long stretch. I do not think it would be worth your while to pursue this with the EEOC. Theoretically your employer may have been obliged to ask you if you needed an accommodation before he fired you, but the case law on this is scarce.

But if it makes you feel better, my opinion is that, yes, he should have talked to you about an accommodation.

Please consult with an employment lawyer and give him all the information you have and he/she will be better able to advise you on this.