Most of you have heard of the Americans with Disabilities Act (ADA) and Washington Laws against Discrimination (WLAD) by now, even if you aren't an employment lawyer or disabilities advocate. What many people are not aware of, however, is that the ADA and WLAD can affect civility in the workplace and in public accommodations.
Civil Workplace Not Required
Occasionally, an employee will inform an employer that he or she suffers from a condition such as anxiety or depression and provide a doctor's note stating that an accommodation in the form of a different supervisor is needed. However, a different supervisor is not required as an accommodation under the ADA or WLAD.
For example, in Snyder v. Medical Service Corp.,1 the plaintiff-employee complained of emotional distress because of the "oppressive and intimidating" tactics of her supervisor, and her doctor advised her to take time off from work. After her leave, she asked to report to someone else or be transferred to another department. She then quit and claimed, "[H]er physician would not allow her to work under Ms. Hall's supervision."2 The state Supreme Court concluded, among other things, "that there is no duty under WLAD to reasonably accommodate an employee's disability by providing her with a new supervisor."3
In so holding, the court stated: "Snyder claims she could continue to perform the essential functions of her position so long as she did not have to report to Ms. Hall. However if Snyder can perform the job, then she has no disability requiring accommodation simply because she has a personality conflict with her supervisor."4
Several federal courts have reached the same result under the ADA. As the Snyder court noted in its survey of federal case law, in Weiler v. Household Finance Corp., the plaintiff claimed she could perform the essential functions of her job, but not while she was working under her current supervisor.5 In response, the Seventh Circuit held, "If Weiler can do the same job for another supervisor, she can do the job, and does not qualify under the ADA."6
In Taylor v. Phoenixville School District, the court stated: "We would hasten to add that a disabled employee is not entitled to a supervisor ideally suited to his or her needs."7 In Gaul v. Lucent Technologies, Inc., the court held that a request to be transferred away from individuals causing an employee stress is unreasonable as a matter of law under the ADA.8
Difficult Working Conditions
Many employees would agree that 60- to 80-hour workweeks, extensive travel and an unpredictable work schedule are not very civil. However, the ADA and WLAD do not mandate civil work hours and schedules as an accommodation for jobs if those conditions are an essential function of the position.
In Davis v. Microsoft,9 a systems engineer worked 60 to 80 hours per week, with extensive travel and an unpredictable schedule. Due to Hepatitis C, the employee requested a workweek of no more than eight hours per day, 40 hours per week. Microsoft temporarily granted this request while it evaluated the possibility of a long-term accommodation. Microsoft was not able to provide a long-term accommodation in the system engineer position and offered a job search for other positions.
The state Supreme Court held that "the WLAD does not authorize Davis or this court to tell Microsoft how to set its selling objectives and customer service goals, [and] the WLAD does not permit Davis or this court to tell Microsoft how to organize its work force and structure individual jobs to meet those targets."10
Behavior and Accommodation
Because the ADA and WLAD apply to all kinds of disabilities, there may be situations where an accommodation requires the acceptance of a certain level of uncivil behavior on the part of a disabled person. For example, a public accommodation (e.g., a store, restaurant, movie theatre, etc.) can refuse service if a person's behavior or actions constitute a risk to property or other persons.11 However, in order to do so, the risk to property or other persons must be "immediate and likely, not remote or speculative."12
As stated in the WAC, "Risk to the person with a disability is not a reason to deny service."13 The WAC also provides, "Annoyance on the part of staff or customers of the place of public accommodation at the abnormal appearance or behavior of a person with a disability is not a Ôrisk to property or other persons' justifying nonservice."14 Finally, "When risk justifies not serving a person with a disability in the same way or same place as other customers, the person should be served through reasonable accommodation."15
The Bottom Line
The ADA and WLAD do not mandate civility in the workplace, even if doing so would ease an employee's medical condition. However, tolerance of incivility may be required as an accommodation of a disability under the WLAD or ADA in some circumstances. n
Karen Sutherland is the chair of the Employment and Labor Law Practice Group at Ogden Murphy Wallace, P.L.L.C. and chair of the King County Bar Bulletin Committee. She can be reached at ksutherland@omwlaw.com or 206-447-7000.
1 145 Wn. 2d 233, 242, 35 P.3d 1158 (2001).
2 Id. at 238.
3 Id. at 242.
4 Id. at 241. A similar result was reached in Wilson v. Wenatchee Sch. Dist., 110 Wn. App. 265, 40 P.3d 686 (2002).
5 101 F.3d 519 (7th Cir. 1996).
6 Id. at 525.
7 184 F.3d 296, 319 n.10 (3d Cir. 1999).
8 134 F.3d 576, 581 (3d Cir. 1988).
9 149 Wn. 2d 521, 70 P.3d 126 (2003).
10 Id. at 536.
11 RCW ¤ 49.60.215.
12 WAC 162-26-110(4).
13 WAC 162-26-110(6).
14 WAC 162-26-110(7).
15 WAC 162-26-110(8).
