4th Circuit: If you agree, no adverse action for thee

An employee alleged her employer discriminated and retaliated against her by transferring her to a similar position, but the U.S. 4th Circuit Court of Appeals (whose rulings apply to all North Carolina employers) recently declined to revive her claim because she voluntarily requested and accepted the transfer. You should keep the appellate court’s decision in mind when discussing disability accommodations with employees under the Americans with Disabilities Act (ADA).

ADA’s adverse action requirement

The ADA prohibits employers from discriminating against certain employees based on a disability. The Act also prohibits retaliation against employees who seek its protections.

To prevail on an ADA discrimination or retaliation claim, the employee must show the employer took some “adverse action” against her. Although what qualifies as an adverse action differs slightly depending on whether the claim is for discrimination or retaliation, both claims require some “significant detriment” to the employee.

Employee requests accommodation

Viola Laird worked for Fairfax County for more than 25 years. In 2012, she informed her boss she had been diagnosed with multiple sclerosis and sought an accommodation under the ADA, namely by requesting to begin unscheduled telework. Laird’s boss approved the request, authorizing her to telework “whenever she wanted to or needed to,” so long as she kept management informed. The two parties also agreed the accommodation could be revisited at any time.