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Hughes Hubbard & Reed LLP


Labor & Employment Newsletter

 September 2003 


 Employees Need Not Have a Protected Disability to Successfully Sue Under the ADA for Retaliatory Discharge 


Can employer be liable under the Americans With Disabilities Act (the “ADA”) for terminating an employee whose impairment is not a disability under the ADA? 

The Third Circuit recently cautioned that an employer may in fact be so liable. Shellenberger v. Summit Bancorp. Inc., 318 F.3d 183 (3rd Cir. 2003). In Shellenberger, the plaintiff hounded her employer for accommodations relating to her “perfume sensitivity.” 

Although the employer concluded that the employee did not have a covered disability under the ADA, it nevertheless attempted to satisfy her concerns by moving her desk several times, allowing her to keep a fan on her desk, and having a supervisor whose perfume bothered her to discuss business matters over the telephone, rather than in person. 

Despite the employer’s efforts, however, the employee continued to make additional, progressive demands, such as being allowed to sniff each new employee, instituting a perfume-free work place and constructing an enclosed cubicle equipped with a special air filtration device. Countless meetings proved fruitless. 

The employee filed a charge with the EEOC, accused the company of trying to poison her and issued ultimatums to the employer. Concluding that it simply was unable to satisfy the employee’s increasing demands and relying on a conclusion that the employee’s perfume sensitivity was not a disability within the meaning of the ADA, the employer terminated the plaintiff’s employment for insubordination. The district court granted the employer’s motion for a judgment as a matter of law finding that the plaintiff had not put forth sufficient evidence to establish a causal connection between engaging in protected activity and the employer’s decision to fire her.  

The court also ruled that, “regardless of whether Shellenberger had established a causal connection, Summit had put forth a legitimate, non-discriminatory reason for firing her: that she was insubordinate.” 

The Third Circuit, however, reversed. The appellate court found that a plaintiff need not establish he/ she was a qualified individual with a disability under the ADA in order to succeed on a retaliation theory. In reversing the district court’s decision on the retaliation claim, the only issue on appeal, the Third Circuit ruled that there was sufficient evidence for a jury to conclude that the employer fired the plaintiff in retaliation for actions protected by the ADA. 

In so ruling, the Court stressed that irrespective of whether an individual has established that he/ she has a disability, the ADA protects any employee who files a good faith claim. Therefore, the Third Circuit concluded, “in determining whether a plaintiff can proceed on a retaliation claim, a person’s status as a ‘qualified individual with a disability’ under the ADA is not relevant in assessing the person’s claim for retaliation under theADA.” 

This case reinforces that once a request for accommodation is made, no matter how frivolous, any potential adverse actions taken against the employee must be scrutinized to ensure that the potential adverse actions are not retaliatory.


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