DISABILITY DISCRIMINATION/ REQUESTS FOR REASONABLE ACCOMMODATIONS

In order to prove a disability discrimination case under Missouri law, an employee must prove by a preponderance of the evidence (i.e., more likely than not) that: 1) the employee suffers from a physical or mental impairment that qualifies as a “disability” under the MHRA; 2) such impairment did not interfere with performing the essential functions of the job in question [if provided with one or more reasonable accommodations or the employee did not require any accommodation]; 3) the employer [failed to hire, discharged, or unreasonably interfered with the employee’s ability to perform the essential functions of his/her job]; 4) the employee’s disability was a motivating factor in the discriminatory act identified in the third element; and 5) as a direct result of such conduct, the employee sustained damage. See Missouri Approved (Civil) Jury Instructions, 38.01(B).

This language largely mirrors federal law, but the ADA permits the filing of a separate and distinct legal claim which the MHRA does not—failure to accommodate. For an employee to prevail on an ADA failure to accommodate claim, the employee must prove by a preponderance of the evidence that the employee: 1) has a disability within the meaning of the ADA (similar to the MHRA); 2) is a qualified individual under the ADA; and 3) suffered an adverse employment action due to his or her disability. See Mobley v. St. Luke’s Health System, Inc., 53 F.4th 452 (8th Cir. 2022). Under federal law, as “adverse employment action” is one that causes a material change in the terms or conditions of employment; to be adverse, an employment action must do more than merely make an employee unhappy, but it need not always involve termination or even a decrease in benefits or pay. See Brown v. Cox, 286 F.3d 1040 (8th Cir. 2002).

Returning to the elements of a MHRA disability discrimination claim—namely dealing with an employee’s ability to perform the essential functions of the job—the Missouri Court of Appeals has held that, “[f]or purposes of the threshold disability inquiry, the only functions that must be deemed essential are those that the impairment substantially interferes with the employee’s ability to perform. That is, the essential functions analysis is necessarily limited to whether the restricted function—the aspect of the job the employee cannot do—was essential.” Loerch v. City of Union Missouri, 643 S.W.3d 597, 603-04 (Mo.App. E.D. 2022) (internal citations omitted).

In determining whether a function is “essential” or not, in one of Hollingshead & Dudley’s own disability discrimination jury trial victories—upheld on appeal—the Missouri Court of Appeals noted a number of facts previously identified by the Missouri Supreme Court “[…] when determining the essential functions of a job,” and they include: 1) “the employer’s judgment as to which functions are essential;” 2) “the written job description of the position;” 3) “the amount of time spent performing a particular function;” 4) “the consequences of not requiring the employee to perform the function;” and 5) “the past or current work experience of employees in similar jobs.” McKinney v. Mercy Hospital St. Louis, 604 S.W.3d 680, 688 (Mo.App. E.D. 2020) (internal citations omitted).

Likewise, the Missouri Court of Appeals has held that, “[a] reasonable accommodation is an accommodation that does not impose undue financial and administrative burdens on the employer or require fundamental alterations in the nature of the program.” Devor v. Blue Cross & Blue Shield of Kansas City, 943 S.W.2d 662, 666 (Mo.App. W.D. 1997) (internal citations omitted) (emphasis added). The MHRA regulations specifically provide the following examples of what an employer-provided accommodation “may include:” “[j]ob restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters and other similar actions.” 8 CSR 60-3-060(1)(G)(1) and (2).

Critically, “[w]hether any particular proposed accommodation is unreasonable [or reasonable] is dependent upon the facts of each case.” Lomax v. DaimlerChrysler Corp, 243 W.D.3d 474, 481 (Mo.App. E.D. 2007). For example, “[…] although an employer certainly is not required to provide an indefinite leave of absence [to an employee], [even] an indefinite leave might be possible under certain circumstances.” Id. In short, determining whether a requested accommodation is “reasonable” under both state and federal disability discrimination laws requires an experienced employer attorney’s nuanced analysis of the specific facts of your disability, employer, and essential job functions.

While a failure to accommodate count cannot be independently filed under the MHRA, Missouri’s courts have noted that, “[t]he MHRA makes the question of whether the job can be performed with or without reasonable accommodation a part of the test to determine whether an employee is disabled; not making reasonable accommodations is a type of discrimination under the ADA.” In other words, whereas failure to accommodate is a standalone count under the ADA, under the MHRA, an employer’s failure to accommodate an employee’s disability is merely an element of the employee’s disability discrimination claim.

Next, and critically, something known as the “interactive process” is required as part of the employee and employer’s joint responsibilities in attempting to find a reasonable accommodation that works both for the employee and does not impose an undue hardship on the employer. To satisfy an employer’s obligation to engage in the “interactive process,” the employer is not required to find a job for an employee that meets his or her restrictions, but it must make a good faith effort to assist the employee in seeking a reasonable accommodation that works for both parties (i.e., the employer and employee). Likewise, the employee must, in good faith, participate in the employer’s efforts to find a mutually agreeable reasonable accommodation. Failure to do so could prevent you from later succeeding on both a disability discrimination claim (under both state and federal law) or a failure to accommodate claim (under the ADA). In order to properly evaluate these highly nuanced factors, you will need to have one or more detailed conversations with an experienced employment attorney.

Separate and distinct from claims of disability discrimination (under both the MHRA and ADA) and failure to accommodate (under the ADA) is a claim for unlawful retaliation (available, with critical differences, under both the MHRA and ADA). Under both state and federal law, it is only unlawful for an employer to retaliate against an employee for engaging in what are coined “protected activities.” That is, despite the common misconception to the contrary, it is not unlawful for an employer to retaliate against an employee—only under certain prescribed circumstances. Here, state and federal law differ. Under the ADA, merely requesting a reasonable accommodation constitutes a protected activity, but in order to have legal recourse, your employer must take an “adverse employment action” against you (discussed above).

Under the MHRA, merely requesting a reasonable accommodation does not, in and of itself, constitute a protected activity. See Li Lin v. Ellis, 595 S.W.3d 238 (Mo. banc 2020). While somewhat unclear in the wake of the 2020 landmark Missouri Supreme Court decision in Li Lin v Ellis, it remains possible (i.e., the Missouri Court of Appeals and Missouri Supreme Court have not yet said otherwise) that an employee may be able to legally maintain a MHRA retaliation claim for complaining to an employer that: 1) an agreed-upon reasonable accommodation was never provided by the employer; or 2) a mutually agreed-upon reasonable accommodation was later withheld or improperly administered by the employer; and/or 3) the employer refused to, in good faith, engage in the “interactive process.”

Despite the current confusion on what may constitute a “protected activity” under the MHRA, on a positive note, unlike the ADA, the MHRA does not require the employer to take an “adverse employment action” against an employee for he or she to have a legally viable MHRA retaliation claim. Rather, “[t]he MHRA makes it an unlawful discriminatory practice to retaliate ‘in any manner’ against an employee who ‘has opposed any practice prohibited by [the MHRA]’ or ‘has filed a complaint … pursuant to [the MHRA].’” Eivins v. Missouri Department of Corrections, 636 S.W.3d 155, 180 (Mo.App. W.D. 2021) (internal citations omitted) (emphasis added). To prove an “adverse action” under the MHRA, an employee “[…] need only establish that, as a direct result, he or she suffered any damages.” Id. (internal citations omitted) (emphasis added).

In short, while the MHRA excludes from its definition of “protected activities” one of the most easily identifiable activities that an employee may engage in with respect to a disability claim (i.e., requesting a reasonable accommodation from the employer), unlike the ADA (which requires an employee to suffer from an “adverse employment action”), the sky is the potential limit as to what might be considered an “adverse action” under the MHRA. As a result, it is not uncommon for Hollingshead & Dudley’s employment attorneys to, after discussion with the client, file some combination of claims under both the ADA and MHRA.

In order to competently make this determination, however, one or more (typically several) detailed conversations with the client are required. Simply put, no level of detail in any article (no matter how experienced the employment lawyer authoring the article) could definitively lead you to the correct determination without extensive consultation with an experienced employment attorney.