The failure to accommodate may be an act that proves discrimination in a disability discrimination claim.

The plaintiff had a history of depression and was taking medicine which made her fall into a deep sleep and from which she had difficulty awakening in the morning. The plaintiff sought permission to report to work 15-30 minutes late and to be allowed to make up the lost time by working over lunch, through her break or in the evening. Even though the request was supported by both the plaintiff's treating physician and the County's physician, the accommodation request was denied. In overturning an Order of dismissal, the Appellate Court concluded that once a facial showing of a disability had been made, the County's failure to engage in any effort to evaluate the accommodation request was sufficient evidence of discrimination to warrant submission of the matter to a jury.

Case Law Alert - 3rd Qtr 2010