Does the ADA Protect Against Unknown Disabilities?
April 16, 2023
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE
An employee was terminated for performance reasons. Then they throw you a curve ball; they have cancer or need operable surgery that could rise to the level of ADA. You now have knowledge of it after you terminate the employee. What do you do?
That was the situation in Hrdlicka v. General Motors, No. 22-1328 (6th U.S Circuit Court of Appeals, 2/7/2023). Hrdlicka had ongoing attendance problems. She texted her supervisor on a weekly or more often basis stating that she would be late, taking the day off, or working remotely. Her excuses were all over the board, from childcare issues to flat tires to “struggling with a mental thing.” The excuses and responses were well documented. She never produced a medical excuse and apparently never went to a doctor for any of the absences purportedly related to her medical issues. The supervisor approved the absences and did not inquire about the legitimacy of the excuses.
However, the absences were adding up and were documented in a performance review. Eventually they put her on a performance improvement plan (Attendance Letter), which she violated, and was finally terminated for attendance issues.
After termination, following GM’s “Open Door Policy,” Hrdlicka appealed the discharge decision, a process handled through an outside human resources consulting company. During the process, Hrdlicka learned that she had a brain tumor, and she was diagnosed with persistent depressive disorder. She actually had surgery for the tumor during the appeal process.
As it turned out, neither the company nor Hrdlicka knew of these medical conditions at the time of the termination decision. The appeal was denied.
Hrdlicka then sued GM for ADA discrimination and failure to accommodate. At trial court, the court ruled in summary judgement for GM and the 6th Circuit affirmed. The appellate court stated that “[T]he parties agree that Hrdlicka was never diagnosed with any medical condition until after . . . termination.” In other words, Hrdlicka could not establish a prima facia case of disability discrimination “because [their] purported disability was unknown to either [themself] or [GM] until well after . . . employment was terminated.” In other words, the employee couldn’t sue for a situation that no one knew about at the time and was only identified after the termination occurred.
The court stated that even though there were a number of text messages between the employee and the manager, the text-message communications were not enough to place the manager on notice that Hrdlicka was suffering from a disability. If anything, it could cause the manager to speculate but they didn’t know.
Moreover, although prior to termination the employee stated they were depressed, there was never any documentation to support that. The court points out that simply “[t]he mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” Second, Hrdlicka consistently and specifically attributed both their attendance issues and depression to a dislike of the manager and work environment. It was not clear that depression had anything to do with the absenteeism and could only lead GM to more speculation.
As for the failure to accommodate, Hrdlicka requested a transfer to another department. The transfer was made presumably because they did not like their manager or the work she was doing.
The takeaway for HR is to make sure to review policies to make sure that they could be applied to specific situations – such as repeated unexcused absenteeism – when the need arises. These policies must be applied consistently. Second, when a policy is implicated, apply it without delay. If there is any reason to guess there might be a disability involved, e.g. conversations etc. that occurred with an employee, manager or HR, HR should be cautious in their approach to ensure all I’s are dotted and T’s are crossed.
Source: Bradley Arant Boult Cummings LLP 2/21/23