Public and private sector employers may receive requests for job-related accommodations from applicants or employees related to their disabilities. The Wisconsin Fair Employment Act and the Americans with Disabilities Act (ADA) include protections for qualified individuals with disabilities, including that an employer may not refuse to reasonably accommodate an employee or job applicant’s disability unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer’s business. In addition, there are certain elements that an employee or job applicant must prove in order to establish a claim of failure to accommodate. The U.S. Court of Appeals for the 7th Circuit recently issued a notable decision in a case involving a failure to accommodate claim under the ADA filed by an employee of Western Illinois University. Schoper v. Bd. of Trustees of W. Illinois Univ., 119 F.4th 527, 529 (7th Cir. 2024).
Facts of the Case
Sarah Schoper was a tenure-track assistant professor, who suffered a serious traumatic brain injury and developed a condition that caused her difficulty in retrieving words and other physical disabilities. After the injury, she returned to work and continued to teach the same courses, which her medical provider had recommended. The University provided her with several accommodations.
Professor Schoper continued to pursue tenure. The tenure evaluation process included multiple steps. A tenure-track employee could apply for tenure in their sixth year, except that the collective bargaining agreement included a “stop-the-clock” provision under which an employee could request an extra year due to a significant illness. Once an employee applied for tenure, a committee would review the application and make a recommendation to the Department Chair and Department Dean, who also made recommendations. If any of them recommended denial, two (2) additional committees would consider the application and make recommendations. After that, three (3) high level leaders would review the application and determine whether to recommend the employee for tenure before the Board of Trustees. If a candidate did not receive a recommendation for tenure, the University would issue a contract termination for the subsequent year.
The review process included three (3) categories, including: (1) teaching and primary duties, (2) professional activities, like published scholarship, and (3) service, such as committee assignments. The first category, which included five (5) criteria, was at issue in the case. One of the criteria was student evaluations. Students submitted anonymous evaluations in which they identified concerns with Professor Schoper’s teaching skills. She never made a request to “stop the clock” and continued to receive negative teaching scores from her students. Accordingly, when she applied for tenure, the committee did not recommend approval of her application. Professor Schoper requested reconsideration; she stated that her disability impacted her teaching but the issues would lessen with time. The committee denied her request for reconsideration, after which she requested more time to reach tenure. Ultimately, the University did not approve her application for tenure and terminated her contract.
Court’s Analysis and Holding
Professor Schoper filed suit against the University under the ADA and asserted that the University discriminated against her on the basis of her disability and failed to provide her with reasonable accommodations. The District Court sided with the University. As to her failure to accommodate claim, the District Court held that she “failed to show how her preferred accommodations—a delay in considering her tenure application—would allow her to perform the essential functions of her position.” She then appealed to the U.S. Court of Appeals for the 7th Circuit (Court).
In its decision, the Court explained the legal standards that apply to a failure to accommodate claim. Specifically, a plaintiff must show that: (1) he or she is a qualified individual with a disability; (2) the employer was aware of his or her disability; and (3) the employer failed to reasonably accommodate the disability. In addition, under the first element, a Court must evaluate whether the individual meets the requirements of the position before it evaluates whether the individual can perform the essential functions of the position with or without reasonable accommodation. The Court reasoned that Professor Schoper’s declining scores strongly suggested that she failed to meet the essential functions of the position and was not a qualified individual with a disability. The Court also noted that “[t]he requirements for tenure at the University included having superior teaching ability, and the University was not required to change these requirements.”
The Court further reasoned that even if she was a qualified individual with a disability, her request for more time to achieve tenure was not a reasonable accommodation. The Court explained that “[a] reasonable accommodation is one that allows the disabled employee to perform the essential functions of the employment position, and we have recognized that the concept of reasonable accommodation is flexible.” It also recognized that “employers need not excuse the inability of an individual to perform the job’s essential tasks or promote disabled individuals who do not meet the requirements for a promotion.” The Court noted that Professor Schoper’s request for more time amounted to a “do-over,” and she did not request a reasonable accommodation until the negative tenure recommendation. In addition, the Court noted that it was Professor Schoper who had made the decision to return to work quickly, before she had fully recovered. The Court also relied on previous authority for the proposition that “requesting a second chance is not a reasonable accommodation when it does not request that the employer change anything, but rather simply requests an opportunity for the employee to change their behavior.” Therefore, the Court denied her claim for failure to accommodate.
The Court also denied Professor Schoper’s s claim for discrimination on the basis of her disability because it determined that no reasonable jury could find that her disability was “a but-for cause” of the University’s decision to deny her tenure and terminate her contract.
Conclusion
This case is important because it clarifies that an employee’s request for a second chance (or for more time) related to an employee’s own behavior does not constitute a reasonable accommodation. It is also important to keep in mind that ADA claims are often fact specific. Therefore, it is advisable to carefully consider requests for workplace accommodation and to consult with legal counsel, particularly as to challenging requests.
