Retaliation Because Graduate Student Requested Reasonable Accommodations Is Illegal Old Dominion University Case Shows
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Does a graduate student, resident physician or fellow have a good legal cause of action for retaliation or discrimination based on their school or program, retaliating against them for requesting reasonable accommodations? The answer is “Yes,” as a fairly recent case shows.
U.S. Department of Justice vs. Old Dominion University.
In the case of the U.S. Department of Justice vs. Old Dominion University, a doctoral student with a disability was discriminated against and retaliated against by Old Dominion University (ODU), in Norfolk, Virginia, for asking for reasonable accommodations.
Because the graduate student requested reasonable accommodations, their advisor (head of the college) stopped advising and supervising the graduate student. She also pulled the graduate student off of all publications and refused to allow them to assist her with her research and publications.
Essentially, the graduate student was told they were a “liability” to the program and not allowed to perform critical functions necessary to complete it.
The graduate student filed a discrimination and retaliation complaint against ODU based on this conduct, alleging that it was illegal and violated the Americans with Disabilities Act (ADEA).
The University Settles with the DOJ in favor of the Graduate Student.
The U.S. Department of Justice, Civil Rights Division, Educational Opportunities Section, took the case, finding merit to the graduate student’s claims. The University agreed to a settlement agreement with the Department of Justice to settle the case. ODU signed the settlement agreement on February 3, 2021
What did the University agree to? To read the complete settlement agreement, click here.
For more information, click here to view the DOJ’s press release.
Students, Resident Physicians, and Fellows Are Often Fearful of Requesting Reasonable Accommodations.
We often consult with and represent medical students, resident physicians, and fellows in programs in which they are suffering or performing poorly because they have medical conditions, physical handicaps, or mental health issues that they are afraid to disclose. These include ADHD, depression, dyslexia, cancer, post-surgical problems, and numerous other conditions for which they are protected by law from discrimination.
Yet they are afraid to take the first step, which is to formally report it to the office or division in their school, hospital, university, or program which is responsible for assisting them in obtaining reasonable accommodations.
They are afraid they will be perceived as lazy, slacking off, or seeking to avoid their professional duties. They are afraid that their peers will perceive them as not being team players and seeking to put their work off on their peers. They fear that they will be seen as unprofessional or substandard. These fears are unfounded as many strict federal and state laws protect these individuals against retaliation or discrimination because of a disability.
You must File Your Notice of Disabilities and Request for Reasonable Accommodations in Writing Following the Institution’s Procedures.
It is only if they fail to formally report it in writing and to formally request reasonable accommodations in writing that the advisor, program director, instructors, attending physicians, clinical supervisors, or dean can legally take disciplinary action against them. Simply telling someone does not legally place the institution, program, university, or hospital on notice. You must follow the procedures that it has in place and give formal written notice.
“I told my senior resident,” “everybody knew,” “all of my peers were aware of it,” “I told a clinical supervisor about it,” “my instructor knew about it,” “They should have read my mind,” are all similar excuses. None of the foregoing matters. You must file your notice in writing and request reasonable accommodations.
Then you have an ironclad, irrefutable proof, and the institution itself is on notice, not just one or two isolated individuals and nebulous proof that will disappear when you need it.
Contact Health Law Attorneys Experienced in Representing Medical Students, Residents, Fellows and Other Healthcare Professionals.
The Health Law Firm’s attorneys routinely provide legal representation to resident physicians and fellows, medical students and other health professional students, nurses, physicians, medical groups, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for resident physicians and fellows in filing grievances and complaints regarding discrimination and in other disputes with their graduate medical education programs. We also represent healthcare employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings.
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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714. Call (407) 331-6620 or Toll-Free at (888) 331-6620.
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