The Americans with Disabilities Act requires employers to engage in an interactive process to determine if a qualified individual with a disability can perform the essential functions of the job through provision of reasonable accommodations. Like other federal civil rights laws, the ADA also prohibits employers from retaliating against persons who engage in protected behavior under the ADA, including seeking reasonable accommodations. Last month in an unpublished opinion, the Third Circuit Court of Appeals concluded that an employer neither failed to provide an accommodation nor retaliated against an employee who insisted on recording a disciplinary meeting with her supervisor.

In Rumanek v. Independent Sch. Mgm’t, Inc., the plaintiff had a long history of conflict with her supervisor, including pay disputes and claims that she was retaliated against based on her participation in a co-worker’s race discrimination claim. During the course of these events, the plaintiff was in an automobile accident, and claimed that she suffered from short-term memory loss. After returning from medical leave, her supervisor scheduled a meeting with the plaintiff to discuss her various complaints. The plaintiff responded that she needed to tape record the conversation due to her memory issues. The company refused, agreeing instead to provide a third-party witness to take notes of the meeting. The plaintiff refused to participate and was terminated for insubordination.

She sued, claiming that she was retaliated against for seeking an ADA accommodation. The Third Circuit affirmed dismissal of the complaint on summary judgment. In its decision, the court first confirmed that the ADA’s anti-retaliation provision includes reasonable accommodation requests. However in this case, the plaintiff never demonstrated a good faith belief that she needed the accommodation. Her EEOC charge and medical records noted that at the time of the meeting, she had largely recovered from the memory issues. The disciplinary meeting was the only circumstance where the plaintiff felt the need to use a tape recorder. She was able to participate in other meetings and to carry out her job duties without this aid.

Although the employer prevailed in this case, companies that deny accommodations should be careful about taking adverse action against the employee relating to the request. If there are no reasonable accommodations that allow the employee to perform the job, or if the employee engages in misconduct relating to the accommodation process, the employer needs to thoroughly document these circumstances, and take action that is consistent with its polices and past practices.