Revoking Accommodation?
I sit here shaking my head. I continue to be astonished that many of America’s city and county governments do not get ADA Title I. This week two cases were brought to my attention. One is a constructive discharge (fired) threat based on revoking a successful accommodation. The other is rescinding an offer of employment based on information gained through a post-offer medical examination.
In the city of North Las Vegas, Nevada, the United States Department of Justice brought a complaint alleging that the Parks and Recreation Department discriminated against Joseph Dixon (who has a permanent and uncorrectable visual disability) by failing to accommodate Mr. Dixon and constructively discharging him by revoking his reasonable accommodation.
Among other things, the United States alleged that the City discriminated against Dixon on the basis of disability by withdrawing Mr. Dixon’s long standing reasonable accommodation — an exemption from obtaining a Commercial Driver’s License (“CDL”) — without any legitimate business need to do so, threatening him with disciplinary action if he failed to obtain a CDL, and thereby constructively discharging him.
The Consent Decree to which the parties agreed reads like a laundry list. Of notice is the requirement that the county pay Mr. Dixon approximately $40,000 on which the county will pay the taxes.
The other case comes from Bolivar County, Mississippi. A Consent Decree filed by the United States Department of Justice alleged that the county violated the ADA by terminating a correctional officer with the Bolivar County Regional Correctional Facility one day after he self-disclosed in a post-hire medical examination that he previously had diabetes. The county terminated the employee, who had nearly 20 years of prior experience as a correctional officer and was qualified to perform the position, because he had a record of a disability and/or was regarded as having a disability.
For those of you asking about “regarded as”, this case is the perfect example. Not only did the County think of the officer as being disabled by diabetes, it took action that adversely affected his opportunity to enjoy the benefits and privileges of employment. These are the necessary components of a “regarded as” violation: a person who has the power to make or influence employment decisions decides that an individual’s actual or perceived medical or mental condition precludes the individual from safely and successfully performing the physical and cognitive demands of a job, with or without accommodation. And, also necessary to the violation, the decision maker then takes action that actually or constructively adversely affects the individual’s access to the enjoyment of the benefits and privileges of employment.
The consent decree required the county to pay the employee nearly $100,000 in back pay and compensatory damages, offer to reinstate him to the correctional officer position, provide training on the ADA and file reports on its compliance with the decree and ADA with the Department of Justice.
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