Interactive Process Remains Key to Prevailing on ADA Claims

Carissa Davis

In Thompson v. Microsoft, No. 20-50218 (June 22, 2021), the Fifth Circuit provided employers a great reminder of the importance of the interactive process when it affirmed summary judgment for the employer, Microsoft, on Plaintiff Thompson’s ADA claims.  In his lawsuit, Thompson alleged failure to accommodate, discrimination, and a hostile work environment.

Thompson was given a position as a senior-level executive and liaison between Microsoft and clients. The role was fast paced and required clear communications with clients. Although Thompson was initially anticipated to be a good fit for the role, his performance was substandard. When confronted with his poor performance, Thompson requested several accommodations for his Autism Spectrum Disorder (“ASD”).  These included specialized software to support time management and organization and a personal assistant. Microsoft agreed to many of the accommodations Thompson requested but denied his request for a personal assistant. Even after Thompson received several accommodations, he could not effectively communicate with Microsoft clients—an essential function of his position. While the company looked into other options, Thompson was temporarily reassigned to a new role. Rather than taking the temporary role, Thompson took medical leave and sued.

The Court found that Thompson could not prevail on his failure to accommodate claim because his inability to perform the essential functions of his position, even with an accommodation, meant he was not a “qualified individual,” an essential element of such a claim. Even assuming that he would have been able to perform the essential functions of the job if he had been given a personal assistant, this accommodation was not reasonable, and Microsoft was not obligated to provide it. Moreover, to the extent there may have been more that could have been done, it was Thompson—not Microsoft—that caused the breakdown in the interactive process.

Thompson also could not establish a prima facie case of discrimination. He was not a “qualified individual” (still an essential element), and he also could not identify an adverse employment action taken by Microsoft.  Although Thompson objected to his reassignment to a different position, because the reassignment was temporary, it did not fit the bill. In its analysis of the discrimination claim, the Court focused on the fact that it was Thompson who decided to take leave before there was an ultimate employment decision.

Finally, Thompson could not show a severe and pervasive hostile work environment. Thompson presented two comments made by his supervisor, which the Court characterized as “insensitive” but insufficient to support such a claim. Other factors Thompson attempted to rely on, such as Microsoft’s legitimate criticisms of Thompson’s work performance and Microsoft’s temporary reassignment of Thompson to a less desirable position, as a matter of law, did not evidence harassment.

The lesson? A company’s dedication to the interactive process may prove fatal to an employee’s disability-related claims—even when the employee does not like the accommodations offered. Even after Microsoft’s representative made several “insensitive” comments to Thompson, Microsoft’s efforts to engage in the interactive process paid off.