Jan 5, 2015

By Eric B. Meyer

Whether you have a disability under the Americans with Disabilities Act, or not, work can suck. Bosses can be jerks.

But, if an employee with a disability requests a transfer away from a jerk boss, must the company provide it?

Before determining whether a transfer is a reasonable accommodation, we need to get into the interactive dialogue.

Employee doesn’t get transfer and resigns

Before that, however, let me run down the basic facts of the case (Gordon v. Acosta Sales and Marketing, Inc.):

  • The employee has a disability.
  • Employee’s supervisor, who knows about employee’s disability, gets up in his grill and chews him out one day, “I’m your f***ing supervisor. I can tell you to do whatever I want.
  • Employee complains to HR and requests a transfer to another position away from the nasty supervisor. Rather than transfer the employee, the company takes remedial action designed to ensure that the hostility does not repeat.
  • Employee doesn’t get the accommodation he wants and resigns.

What the court said

So, here’s what the court had to say about the employee’s accommodation request, his role in the ADA interactive process, and decision to resign:

His desire for an “accommodation” was connected to what he viewed as intolerable behavior by his boss, not his covered medical condition. Only after his discussion with Osgood and Shaner in early February, where Gordon felt he was treated harshly by Shaner, did Gordon connect his medical condition clearly to his “accommodation” request … Upon receipt of the doctor’s note from Dr. Quiroz, which stated Gordon needed “close proximity to the bathroom facilities”… Acosta was clear that Gordon could … take as many bathroom breaks … as he wanted without any negative view or repercussions from the company, and that all his supervisors were aware of the condition and would not react negatively to bathroom breaks. Gordon was displeased by this response, however, and resigned.”

Participating in good faith

I blogged recently about how the interactive dialogue is a two-way street. That is, both sides must participate in good faith. Here, the employee bailed out and paid the price for it, as the court noted:

No one ever told Gordon he could not use the restroom, or that frequent use of the restroom was a problem. Both parties maintain that Gordon was able to satisfactorily meet the essential job duties of the RCM position with his disability at all relevant times, including with this “accommodation.” Acosta provided Gordon a reasonable accommodation as a matter of law. The existence of a preferred option is insufficient on its own for the claim to survive summary judgment. … [Also,] Gordon’s failure-to-accommodate claim fails because he ended the interactive process.”

Manager takeaways

So, could a transfer away from a jerk boss be a reasonable accommodation?

Theoretically, if no other reasonable accommodation exists, then I suppose so. (Although, I question whether the inability to work with a jerk boss would make the employee qualified to perform the essential functions of the job).

But, counseling and a short leash for the jerk boss should moot the need for a transfer in most cases. Just make sure that you take employee complaints and accommodation requests seriously.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.