HOW TO PROPERLY REQUEST DISABILITY ACCOMMODATION
The first week of February 2018 I tried a disability discrimination case against an engineering firm in Harris County. One of the issues that went to the jury was whether the employer failed to accommodate my client’s disability. The jury found for my client and awarded him damages. There are a few practical takeaways from this trial that I want to share with you. Use them when asking your employer for disability accommodation.
Make sure you request accommodation for a disability. Stress the accommodation is needed to enable you to do your job and is necessary due to a physical or mental impairment. In my case, the employee, an engineer, requested a stand up or adjustable desk to enable him to do his work pain free. He had been in a major accident many years ago and still suffered the consequences of the accident, both physically and mentally. The employer fired him five (5) days after he requested accommodation.
The employer argued that my client’s request for a stand up desk was not a request for accommodation under disability laws (the Americans with Disabilities Act or the Texas Labor Code), but one of preference. In other words, the employer claimed, the employee preferred to stand up while working as opposed to sitting down and, therefore, the employer was justified in not accommodating him. An employer has no obligation to accommodate a preference, only a known disability. So, when you request accommodation, make sure your request does not come across as one for a particular preference, but as one for a disability. Emphasize also the accommodation is reasonably necessary to enable you to do your job.
Make your request for accommodation in writing and make it specific. Email it in. If you turn it in, keep a copy of your request. If the employer does not respond within a week, resubmit your request.
In general, the employee has the initial obligation to request accommodation, unless the disability is plain and it also is readily apparent that the employee needs accommodation. The employer has the obligation to respond to a request for accommodation. The response must be prompt and specific. The employee and the employer have a shared responsibility to engage in an interactive process or dialog designed to lead to accommodation. Keep in mind, however, that the employer is not obligated by law to accommodate a disability if doing so would cause the employer “undue hardship.”
While it is the employee and the employer’s obligation to continue the interactive process, make sure you do your part. Your requests must be specific and timely but also realistic. Remember, the employer is only obligated to provide reasonable, not wishful, accommodation.
Failure to accommodate an employee’s request for reasonable accommodation is against the law and may expose the employer to liability.
It was a good day to run, many years ago, in late December. The sun shone brightly right above me and there were no clouds in the heavens. Humidity was low. To my right was the Pacific Ocean, a vast blue, and before me a steep hill. It was around 11 in the morning and my body and mind felt rested. I slept long and well after a long flight from Houston to Lima, then Piura (with a stopover in Chiclayo), and then a bus ride to Paita, a small village on the Peruvian coast. It was already hot, about 95 degrees, and I figured the heat would top out at 100 by the end of the day.
I set out to run from my modest motel a few blocks away from the beach, up the steep road to the top of the hill and then planned on turning left all the way to Colan, some 10 miles away. I was ready for it. Piece of cake. No big deal, I thought.
Everything was smooth sailing for the first mile or so until the road swung left. My legs and body still moved like an engine. As soon as I took the left turn, still running up the hill, I saw, in the middle of the road, an old man going up the hill and pulling behind him a cart. The cart was almost empty. It only had in it a few empty canisters and cardboard boxes. I figured the old man had been to the market down below, sold his wares and now was pulling, by himself, the cart, up the steep road to go home.
“What do I do,” I said to myself? “Just ignore him and press on with your running,” said one side of my brain. “No,” said the compassionate side, “help the man!” In the end, compassion had it. I stopped running and started pushing the cart from behind. Within seconds, the old man turned his head toward me and smiled. His face was dark but also wrinkled by the many years of his life, the weather, and life’s many troubles. He said nothing. I kept on pushing. I looked up the road for the top of the hill but didn’t see it. The road continued to be steep. My legs and body kept on pushing. Eventually, we reached the top of the hill. Without stopping. I was now free to run again.
And I kept on running. After a mile or so my legs began to wobble. “What’s wrong” I said to myself? “You are a runner! You’ve been running for years!” Suddenly, I felt like giving up. I was running out of steam. And out of breath. My body was giving up on me. “You gave away your strength helping the old man,” I heard myself saying. And that, my mind insisted, was my loss. I started sweating. The heat became incredibly brutal. But I kept on running.
After a while, I felt I was about to vomit, I slowed down a little, but kept on running. On my left I began to see the ocean and a vast bay. I ran by the canneries on my left where huge trucks were going in and out of the cannery yards hauling crates of canned fish. Out in the horizon I saw big trawlers, pulling into a harbor north of Paita, where tall cranes were loading and unloading crates. I kept on running. I passed by hitch hikers and people waiting for buses. A few dogs here and there kept me company after barking ferociously but realizing they were being ignored.
Soon, Paita was behind me. I was still running, on the left side of the road. The road was now flat. But the heat was unforgiving and relentless. The sun was burning my skin, the heat was pumping in my face, the Schulemburg, Texas t-shirt I was then wearing was absorbing my sweat like a sponge, and there was no breeze. My lips were dry and I began to feel thirsty. I moistened them a little with the tip of my tongue. I kept on looking at the road markers hoping I did not have much longer to run. But I did.
Finally, in the distance I saw an intersection. “It’s got to be mine,” I thought, where I would, once more, meander left and make it to Colan in no time. I looked straight at the intersection down the horizon. I kept my eyes on it and, as I ran, the intersection became bigger as I got closer to it. I started to ignore the pain in my body and the vomiting feeling began to go away. Everything seemed to be under control. Or so I thought.
I made it to the intersection and I was right. To my left was a sign and a country road leading to Colan. I veered left, but then panicked seeing that the road was sloping up again and I had to run up to the top before descending on Colan. The wobbling of my legs and the feeling of imminent vomiting came back with a vengeance. The heat was even more merciless. But I kept on running. After about a mile I made it to the hill’s crest. And, looking down, there was Colan, the end of my course, nestled along the coast, a fishing village of poor homes and people. I ran down now, following the serpentines. The view was magnificent and pleasing to the eye and the soul.
The run was worth it. On my left stood the oldest church in South America. Unpretentious but inspiring. Built first of wood in the Sixteenth Century, British corsairs burned it to the ground in the same century. Soon it was rebuilt, of stone this time, and there it stood before me, in all of its magnificence. A friar dressed in the usual brown attire was in the courtyard, lining up young kids in school uniforms, directing them to the school building next to the old church.
I kept on running. I hit flat terrain again, but it was sandy and it slowed me down. I still had about a mile to go. Exhausted, I thought about giving up and walking. But then my eyes caught sight of a wrecked car at the end of the road by the beach. That kept me going. By now, fatigue had slowed me down considerably and I began to breath heavily. As I neared the wreckage I began to hear the tumultuous, angry waves of the Pacific. The foamy, huge waves came ashore in rapid succession. “I will run straight into the water,” I said to myself. But then, I saw a small country store at the end of the road, on its right side. I ran inside and stopped in front of the cooler. I opened it under the watchful and curious eyes of the people and kids inside. I grabbed a bottle of lemonade, twisted the cap off and started drinking. Holding the bottle in my right hand while drinking, I slowly walked to the counter, emptied my right pocket with my left hand, and put everything on the counter. Still breathing heavily, I walked to a table in the back, sat down, and heard a deep voice behind me yell: “gringo!” I turned around, looked at the yelling, burly native, and said to myself, “yeah, the gringo made it to Colan!”
Be smart when you engage your employer in the contest for possible litigation. Be a straight shooter and don’t beat around the bush! Very likely your employer has high-powered lawyers advising it when you, the employee, walk in with a complaint. Especially if the complaint is one about discrimination. Before the employer will make its move and decide the fate of your complaint or the fate of your employment, the employer will run its options by its attorneys. Be smart, stay in the game, and engage the contest over your legal rights the smart way.
What is the problem? Too many employees fail to tell the employer what’s on their mind. Most fail to advise the employer that they are complaining of discrimination. You probably are in this category as well. Probably when you walk into the HR office to complain verbally or tender a written complaint, what you have in mind is a complaint of discrimination. But you fail to specify that. And that’s a problem. A big problem which can determine your fate at the outset and determine even if you have a case, let alone be able to find a lawyer to represent you.
When employees walk into HR or complain to management about an incident or discriminatory treatment most of them typically say: “it’s unfair;” “this is not right;” “this is harassment and retaliation;” “I am being singled out and I don’t know why;” “this is abuse;” “I am working in a hostile work environment;” or similar statements. Well, if you limit your vocabulary to these terms and in fact your intent is to complain about discrimination, you failed. The law does not concern itself with “unfairness” or “harassment” in the work place. It only concerns itself with, and will only protect you from, discrimination and unlawful harassment.
Here’s a few pointers to help you ensure your complaint is protected by the law and so is your job.
Use the Right Language: If you intend to complain about discrimination, do it. Say it. Don’t be ambiguous about it. Start out your complaint with the words “I am here to complain about discrimination.” Or, “I am complaining about sexual harassment” or “harassment because of my race.” End your conversation or note requesting the employer not to retaliate against you because you made the complaint.
Reference the Law: If you make your complaint in writing, reference the law. With courage. Tell the employer you have rights under Title VII, or the Age Discrimination in Employment Act, or simply that you have rights under the law and you seek to avail yourself of their protection in the work place. Don’t be bashful. You have nothing to lose. Some of the best cases I have seen are where employees reproduce paragraphs from the law when they write their complaints of discrimination. The laws that protect you in the work place are available online, just a click away.
Paper Your File: You know your employer is papering your file. You do the same. Communicate your discrimination complaint in writing. Address it to HR and copy your manager(s) on it. Ask them to place it in your personnel file. And always end it with a request that they not retaliate against you.
Be Specific: When you complain, be specific as to why you believe you are discriminated against. Give a factual narrative. To the point. Be factual not opinionated. Give dates, names, and show how persons of a different sex, race, age, not pregnant, or not in a protected class but similarly situated to you, are being treated better. Is it wages? Schedules? Breaks? Days off? Promotions? Whatever it is, say it.
Be Thorough: Your complaint should be thorough, yet not sloppy. Present the facts. If possible, make it short. Be polite, courteous, and respectful. Very likely, what you write may one day end up in front of a jury. You want to make a good impression with the court and the jury? Write well. Be logical. Write like a victim but without the vindictiveness. Don’t let anger set your tone and don’t use your complaint as a forum to fan out your frustrations. And remember also that the employer papers your file with the same thought in mind: one day the jury might possibly see what they write about you.
Keep Copies: Keep copies of your complaints of discrimination. Don’t expect the employer to give you a copy a week or a month later. They will not. And don’t expect your complaint to surface in litigation, because it likely won’t. Your complaints have a mysterious way of disappearing along the way.
Know how to protect your rights. Be smart!
What makes a “good” sexual harassment?
What makes a “good” sexual harassment? Obviously, no sexual harassment is good, but when it comes time for an attorney to decide whether to gamble his time and money on a case, some cases are better bets than others.
What makes a good sexual harassment case is not necessarily intuitive. Sexual harassment law, while based on statute, has been developed by judges trying to balance the interests of victims against those of companies with rogue managers who violate the company’s sexual harassment policy. Consequently, I thought it might be helpful to identify what make a case more easily winnable than others. Here’s some to of the things we look for and why.
- A big company. This is an important consideration because the federal and Texas statutes governing sexual harassment claims limit the amount of damages a victim of sexual harassment can recover for mental anguish and punitive damages combined based on the number of employees in the company. The limits are: 15-100 employees ($50,000); 101-200 ($100,000); 201-500 ($200,000); 501+ ($300,000). Because sexual harassment cases are often more about mental anguish than lost wages, the size of the company becomes an important consideration.
- Sexual harassment by a manger. The higher level the manager the better, and if the sexual harasser is the president or CEO, even better. This is because companies will generally be responsible for the conduct of its managers. If the sexual harasser was a coworker of the victim rather than a manager, the victim may have to show she reported the sexual harassment and it continued or that the company knew or should have known of the sexual harassment and failed to prevent it.
- Touching or groping. For hostile work environment sexual harassment claims, a victim must show conduct of a sexual nature so severe or pervasive that it altered the terms and conditions of employment and created a hostile or abusive work environment. Courts grapple with line drawing in sexual harassment cases. They don’t want a company having to defend a lawsuit because a boorish manager made one or two sexual remarks, but neither do they want to leave victims of sexual harassment without recourse. If a sexual harassment claim consists of only a few sexual jokes or remarks, it is more difficult to show severity or pervasiveness. Touching and groping is obviously more severe and more likely to pass muster.
- Other victims. By the time someone calls my office to complain about a sexual harasser, it’s likely she is not his first victim. We almost always look for other victims and often find them. The truth is the more aggressive the sexual harasser is, the more likely it is he’s gotten away with it in the past and has been emboldened by the lack of consequences to his actions. Finding other victims helps prove the conduct complained-of actually occurred and that the company was lax in not preventing it. It also frees up juries to award the victim the full amount of her damages.
Just because you don’t have all these factors in your case doesn’t mean you don’t have a case. We’ve done very well in the past for victims who didn’t. But if you have all these factors, you shouldn’t be afraid to call a lawyer because it’s likely you have a good case and by asserting a claim you could protect others from becoming victims.