Employee Refuses Employer’s Proposed Accommodation; Fails to Prove She Can Perform Essential Functions in Court

The purpose of workplace accommodations is to assist employees in the performance of essential functions of their positions.  If an employee is unable to perform those functions, with or without a reasonable accommodation, then the employee should not be able to remain in that position.  An employer who offers an accommodation that would allow an employee to perform all the duties of their position will be in a good position to defend itself in a lawsuit.

In the case of Pohlen v. Mayorkas (TW: includes discussion of SA), the plaintiff was an investigator with the Department of Homeland Security.  Following a fitness for duty examination, the plaintiff’s healthcare provider restricted the plaintiff from investigating sexual crimes, such as child exploitation.  The plaintiff requested that she not be assigned to sexual crimes.  Her employer considered the ability to investigate sex crimes to be an essential job function.  However, the agency offered to assign the plaintiff to its Duluth, Minnesota office, where she would not be required to investigate sex crimes.  Pohlen refused the transfer, and was terminated from her employment.  She sued under both the ADA and the Rehabilitation Act for disability discrimination and retaliation.

After most of her claim was dismissed, the employer moved for summary judgment on Pohlen’s claim that it failed to accommodate her disability in violation of the Rehabilitation Act.

With Rehabilitation Act claims, “an essential element of a disability-discrimination claim is that the aggrieved employee be ‘otherwise qualified’ for the position.”  Therefore, the question to be answered was whether Pohlen could avoid investigating sex crimes and still perform the essential functions of her job.

Under the Act, there are several factors to consider when determining if a function is essential:

  1. The employer’s judgment as to which functions are essential;
  2. Written job descriptions prepared before advertising or interviewing applicants;
  • The amount of time spent on the job performing the function;
  1. The consequences of not requiring the incumbent to perform the function;
  2. The terms of a collective bargaining agreement
  3. The work experience of past incumbents; and
  • The current work experience of incumbents in similar jobs.

Pohlen attempted to argue that she was not precluded from investigating sex crimes, but the record included both her healthcare provider’s restrictions and her own request to not investigate sex crimes.  Pohlen also argued that she did not spend much of her time investigating sex crimes.  In response to this, the court stated, “her specific personal experience is of no consequence in the essential functions equation.”

Finally, the court found that Pohlen’s refusal to accept a transfer to a different job showed that she refused to accept any accommodation other than being excused from investigating sex crimes.  As such, she was not able to show she could perform the essential function of the position with reasonable accommodation.

In the world of workplace accommodations, employers need to show the willingness to be flexible with employees.  They don’t, however, need to change the job in a way that the duties for which the job was created are no longer being performed.  If you, or your organization, need assistance in responding to employee accommodation requests, contact Wiley Reber Law, for legal advice that works.