Professor Loses Disability Discrimination Claim

Takeaway: This case shows that an employer can avoid liability on a failure-to-accommodate cause of action if the employee making the request is seeking a second chance to prove they can perform the essential functions of a position instead of an actual accommodation. 

The 7th U.S. Circuit Court of Appeals affirmed summary judgment in favor of the Board of Trustees of Western Illinois University on claims by a former professor that the university had discriminated against her on the basis of her disability by failing to accommodate her request to reapply for tenure and denying her application for tenure because of her disability. The court held that 1) the former professor was not a qualified individual, 2) even if she were, her request for accommodation was not reasonable, and 3) her disability was not the “but-for” cause for the university denying her tenure. 

To become a tenured professor at the university, adjunct professors must apply for a position before their sixth year of teaching—though delaying the application is permitted for one year due to significant illness. One of the main criteria for obtaining a tenured position is receiving at least a 4.0 in student evaluations. 

The former professor suffered a traumatic brain injury that left her with high-functioning mild aphasia and other physical disabilities. At the recommendation of her doctor, the former professor returned to her pre-injury course load before she had fully recovered, which the university accommodated. When she returned to teaching, the former professor was in her fifth year as an assistant professor. Prior to her injury, the former professor had received over a 4.0 numeric ranking and positive review comments from students. After her return, her numeric ranking dropped well below 4.0 and she received multiple negative comments concerning her new teaching style. 

Despite receiving lower student reviews and being aware of the university’s policy permitting applicants to postpone their tenure application, the former professor still applied. The university reviewed her application and denied her tenure due to the lower performance reviews and negative student comments. The former professor then asked that she be reconsidered for tenure at a later time, once she had further recovered. This request was denied. 

The 7th Circuit held that the former professor was not qualified for a tenured position because she could not perform the essential functions of the position. It noted that requesting a “do-over” or second chance is not a reasonable accommodation when it doesn’t require the employer to change anything but gives an individual more time to change their behavior. 

The court also found that the former professor’s disability discrimination claim failed because her traumatic brain injury was not the “but-for” cause of being denied tenure. This is because, in addition to receiving lower numeric ratings, the former professor also received negative review comments unrelated to her disability. 

Schoper v. Board of Trustees of Western Illinois University, 7th Cir. No. 20-cv-04232 (Oct. 17, 2024).

Annabel Pollioni is an attorney in the Silicon Valley, Calif., office of Duane Morris.