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Court Rejects Application of “Futile Gesture Doctrine” to Untimely ADA Claim

The Equal Employment Opportunity Commission sued our client Graphic Packaging International, Inc. in federal court in Illinois alleging failure to accommodate an employee who suffered from sleep apnea. The EEOC contended that the employee had requested accommodations on more than one occasion two years before filing his charge of discrimination. We moved to dismiss the case as untimely but the EEOC argued that, because the employee was allegedly denied prior accommodations, he believed additional requests for accommodation would be futile and his requests for accommodation should be treated as timely under the “futile gesture doctrine.”

The court granted our motion. It found that even if the “futile gesture doctrine” applied to ADA claims, it should not apply to a situation where an employee had requested an accommodation. In addition, the court found that the EEOC did not establish that the employee was deterred by a consistently enforced discriminatory policy. Consequently, the court declined to apply the futile gesture doctrine to save the employee’s untimely claim.

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