In order to pursue a claim for disability discrimination against your employer in Texas, you must first file a complaint or charge of discrimination with either the Texas Workforce Commission (TWC) Civil Rights Division or the Equal Employment Opportunity Commission (EEOC). The employer must employ 15 or more employees to be covered under the ADA or the Texas anti-discrimination law. Generally, you must either file a complaint with the TWC Civil Rights Division or a charge with the EEOC within 180 days or 300 days, respectively, of the adverse employment action. After you receive a right to sue notice from the investigating agency, you may file a disability discrimination lawsuit in either state or federal court. If you have received a right to sue letter from the TWC or EEOC, contact an employment law lawyer at Kilgore & Kilgore to learn the best way to proceed with your case. Please click here to reach out to us Contact an Employment Law Lawyer.

The ADA Provides Workers with Disabilities Certain Rights and Protections

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was signed into law in 1990 by President George H.W. Bush. It provides individuals with disabilities certain federal rights and protections, including protection from discrimination in the workplace. Chapter 21 of the Texas Labor Code provides similar workplace protections under state law to individuals with disabilities.

The ADA Requires Some Employers to Make Reasonable Accommodation for Workers with Disabilities

Under the ADA, a covered employer is required to make a reasonable accommodation for a qualified individual with a known disability. To be a qualified individual with a disability under the ADA, the employee must be able to perform the essential functions of his or her job with or without reasonable accommodation. If an employee cannot show that he or she is a qualified individual as a threshold matter, then any claim in court for disability discrimination will fail.

Recent Case Examines Telecommuting as a Reasonable Accommodation

In the case Credeur v. Louisiana, the U.S. Court of Appeals for the Fifth Circuit examined what it means to be a qualified individual under the ADA. Appeals from the federal district courts in Texas, Louisiana, and Mississippi are decided by the Fifth Circuit.

In its June opinion in Credeur, the Fifth Circuit gave great deference to the employer in determining the essential functions of the employee’s job and ultimately decided that the employee was not a qualified individual for purposes of the ADA.

In this case, the plaintiff, Renee Credeur, was a medical malpractice litigation attorney with the Office of Attorney General for the State of Louisiana. She had developed serious health problems due to complications from a kidney transplant.

Employer Offers Alternative Accommodation

The employer had initially accommodated the plaintiff by allowing telecommuting for performance of her work. However, after several months of telecommuting, the employer denied the plaintiff’s request to continue working from her home. The employer provided an alternative accommodation with certain conditions. The plaintiff rejected this alternative accommodation. After the plaintiff asked again to work from home, the employer once again denied her request. The plaintiff eventually returned to the office to work and voluntarily resigned about four months later.

Prior to returning to work, Credeur sued her employer, the State of Louisiana, for failing to accommodate her disability, disability-based harassment, and retaliation. The federal district court in Baton Rouge granted summary judgment for the State on all of the plaintiff’s claims, and the Fifth Circuit affirmed.

Under the ADA the Employee has to Perform With or Without Reasonable Accommodation

In order for Credeur to be a qualified individual under the ADA, she had to be able to perform the essential functions of her job as a litigation attorney with or without reasonable accommodation. The Fifth Circuit examined the ADA itself and the regulations of the EEOC. It determined that the employer’s judgment must be given the most weight in determining the essential functions of a job.

Definition of Telecommuting as a Reasonable Accommodation for Workers with Disabilities

Credeur’s employer contended that an essential function of her job as a litigation attorney was regular office attendance due, in part, to the interactive and team-oriented nature of her position. The Fifth Circuit gave hardly any weight to Credeur’s subjective testimony about the essential functions of her job. It found that she could not create a fact issue to defeat the State’s motion for summary judgment. An employee’s personal judgment regarding the essential functions of a job, without additional evidence, is insufficient to defeat summary judgment, according to the Fifth Circuit. Employees with disabilities will not be able to telecommute indefinitely, according to the Fifth Circuit. “Construing the ADA to require employers to offer the option of unlimited telecommuting to a disabled employee would have a chilling effect [on their telecommuting policies],” the Fifth Circuit stated.

Plaintiff Was Unable to Prove She Could Perform Her Job With or Without Reasonable Accommodation

The Fifth Circuit concluded that Credeur was unable to show that she was a qualified individual under the ADA. According to the court, she was unable to show that she could perform the essential functions of her job with or without reasonable accommodation. Thus, the court affirmed the summary judgment in favor of the State on Credeur’s failure to accommodate claim.

Plaintiff Was Unable to Prove Harassment or Retaliation

On her other claims, the court found that Credeur had neither experienced actionable harassment based on her disability nor retaliation. Thus, the Fifth Circuit affirmed the summary judgment in favor of the State on all of the plaintiff’s claims.

Discrimination against Workers with Disabilities Occurs in Many Different Types of Situations

Perhaps you suffer from a disability and have experienced an adverse employment action in the workplace. If so, please click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.