I was told by someone smarter than me (my wife, who’s a long time ago fully recovered lawyer) that my last blog had a bit too much law in it. So, I am cutting back on the citations. This blog focuses on a Fourth Circuit decision issued this week that merges the Americans with Disabilities Act (ADA) with the political climate that emerged over the last ten years. Kelly v. Town of Abingdon, __ F.4th __, 2024 U.S. App. LEXIS 14 (4th Cir. Jan. 2, 2024).
The ADA requires that employers make reasonable accommodations for qualified individuals with disabilities to enable them to perform the essential functions of their job. A request for an accommodation need not use any “magic words” invoking the ADA. But it must sufficiently connect the dots between an employee’s job performance and a disability that is causing the need for an accommodation.
Gregory Kelly began working as town attorney for the Town of Abingdon, Virginia in 2005, later becoming its town manager subject to an employment contract. Kelly apparently performed just fine in that role. But things changed around 2016. Democracy is messy, of course, and folks who are elected to political office can and do make a difference at every level of government.
According to the court opinion, “Town Hall became embroiled in political infighting. . . . [O]ver time, the elected Mayor and Town Council engaged in an escalating pattern of ‘unprofessional and . . . outrageous behavior’ that created a caustic work environment for town employees. Elected officials allegedly humiliated and harassed directors and staff members, and leveraged the threat of termination to advance their political agendas.”
Sounds lovely, right? This sort of environment – some might call it toxic – is difficult to stomach anywhere. Kelly suffers from “anxiety, depression and high blood pressure,” and as the hostility at work intensified, his health deteriorated.
In late 2017 Kelly filed EEOC charges alleging disability discrimination. In early 2018, attorneys representing Kelly sent a letter to town authorities, “seeking changes to ‘the daily office environment’ at Town Hall.” While the letter was titled “Accommodations Requests,” and referenced the ADA, it stated the “overall aim” was “to foster a well-running office, based on the principles of mutual respect, clear communication, and . . . well-defined roles.”
The letter made 12 “requests” to facilitate this goal. But – and this is important – it did not mention Kelly’s anxiety, depression, or high blood pressure. Nor did the letter explain how the suggested changes might alleviate these disabilities.
Things did not improve. Kelly claimed the Town rebuffed his attempts to pursue an interactive process, and that council members declared they are “not subject to the requirements of ordinary business employers.” Then – according to Kelly – they stepped up the harassment.
Kelly resigned in May 2018, alleging constructive discharge. A lawsuit followed. The district court dismissed most of the claims but let Kelly’s contract claim go to trial, where a jury found in the Town’s favor. Relevant to our story, the district court found that the lawyer letter seeking changes in the office environment was, as a matter of law, not a request for accommodations due to Kelly’s disability.
The Fourth Circuit agreed. Writing for the panel, Senior Judge Dianna Gribbon Motz stressed that “[w]hile the burden of requesting an accommodation is light, not every work-related request by a disabled employee constitutes a request for accommodation under the ADA.” Reviewing decisions from other circuits and the EEOC’s guidance, Judge Motz continued that “[t]hese limitations enable employers to differentiate between protected requests for accommodation and everyday workplace grievances.”
She noted “an employee may seek changes to his working conditions for any number of reasons unrelated to a disability, such as ‘the kind of personality conflict that pervades many a workplace.’ (citation omitted) Merely labelling a list of suggestions an “accommodation request” is not enough to inform the employer that the employee is requesting workplace changes to address his disabilities, rather than other, unrelated issues.”
Importantly, “just as an employee need not ‘formally invoke the magic words “reasonable accommodation,”’. . . those magic words are not sufficient to trigger the employer’s duty to pursue the ADA interactive process.”
Summing up, “to place the employer on notice, there must be a logical bridge connecting the employee’s disability to the workplace changes he requests. Though this bridge need not be explicit in the accommodation request, the substance of the request must permit the employer to infer that the request relates to the employee’s disability. The substance of the employee’s communication, not its title, determines whether the ADA applies.” That bridge was lacking in this case.
The take-away here? Employers need to be sensitive to the nuance here. True, not every request for workplace change may be a request for accommodation under the law. But every request should be at least heard, given thoughtful consideration, and then responded to promptly and politely. Because (even if council members here thought they were “not subject to the requirements of ordinary business employers)” sometimes it’s just the right thing to do.