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