“I Got the Juice” – Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA DiscriminationEngaging in the ADA interactive process is likely the most significant aspect of managing employees with disabilities. Failing to do so can truly make or break an employer’s ability to protect itself from disability discrimination claims. Employers must remember that one policy or practice does not fit all employees, especially ones with known disabilities. The Sixth Circuit’s opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC illustrates the dangers of applying neutral employment policies to employees who request reasonable accommodations that may conflict with such policies.

Background

Linda Atkins was a lead sales associate at Dollar General who suffered from type II diabetes and occasionally experienced low blood sugar. If and when she had a diabetic episode, Atkins had to quickly consume glucose to avoid fainting or having a seizure. Because of her condition, Atkins asked her store manager if she could keep orange juice at her register in case of an emergency. The manager told Atkins that Dollar General’s policy prohibited having food at a register. In fact, the “Personal Appearance” policy stated that employees “should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.).”

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes while she was working alone. Because there were multiple customers in the store both times, Atkins could not go to the break room where she kept orange juice in a cooler. Instead, she took a bottle of orange juice from the store cooler and drank it. After each episode ended, Atkins paid for the orange juice and told the store manager what happened. Nevertheless, when Dollar General’s district manager and regional loss prevention manager conducted an audit and learned about what Atkins had done, they terminated her for violating the company’s grazing policy, which forbids employees from consuming merchandise in the store before paying for it.

Atkins filed a disability discrimination charge with the EEOC, and the EEOC filed a lawsuit against Dollar General alleging failure to provide a reasonable accommodation and discriminatory discharge under the ADA. After Atkins intervened in the lawsuit as a plaintiff, litigation proceeded to trial where a jury found in favor of Atkins on both claims, awarding her over $27,500 in back pay and $250,000 in compensatory damages. The district court awarded Atkins’ lawyers over $445,000 in attorney’s fees and almost $1,700 in expenses. Dollar General appealed.

Sixth Circuit Upholds Jury Verdict Regarding ADA Claims

On appeal, Dollar General first argued that it did not have a duty to accommodate Atkins because she could treat hypoglycemia in other ways, e.g., glucose tablets, honey, candy, or peanut butter crackers. Siding with the jury, the Sixth Circuit stated that the jury could have found that Dollar General’s “Personal Appearance” policy also prohibited employees from consuming Dollar General’s suggested treatment alternatives. More importantly, the Sixth Circuit highlighted that the policy included a disclaimer that permitted disability-related exceptions depending on the circumstances. Despite this disclaimer and Atkins’ request for an exception because of her diabetic condition, her store manager “categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.” Such a response was not consistent with Dollar General’s duty to explore the nature of Atkins’ limitations, if and how those limitations affected her work, and what type of accommodations could be made. Consequently, the jury had a legally sufficient basis to conclude that Dollar General failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding Atkins’ discriminatory discharge claim, Dollar General argued that it had a legitimate, non-discriminatory reason for firing Atkins, its anti-grazing policy. The Sixth Circuit swiftly discounted this argument, stating that “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].” Furthermore, the Sixth Circuit emphasized that a neutral policy was irrelevant because Atkins had presented direct evidence of discrimination, i.e., failing to provide a reasonable accommodation.

The Sixth Circuit concluded its analysis by refuting Dollar General’s final argument that Atkins did not present evidence of animus toward the disabled. The Court held that proving animus was not necessary and an employer violated the ADA whenever it terminated an employee on the basis of disability. Ultimately, the Sixth Circuit upheld the jury verdict regarding both of the ADA claims, and Atkins prevailed.

Takeaways

This decision does not mean that you cannot apply neutral policies such as personal appearance or anti-grazing to disabled employees. However, employers who apply policies without regard to an employee’s disclosed disability do so at their own risk. Remember that you and your employee are a team that can only succeed when everyone can perform their jobs in a supportive and efficient environment. When faced with an employee who requests a reasonable accommodation, think about the following:

  • Would the requested accommodation violate a policy? Don’t ignore your policies that may prevent you from granting an employee’s request, but think about whether you need to make an exception to enable the employee to keep doing his or her job. If the employee’s request violates a policy, think about alternatives that would not violate the policy.
  • Solicit the employee’s doctor’s input when necessary. If you need a second opinion, get it.
  • Don’t forget that if you cannot provide a reasonable accommodation in an employee’s current position, you should determine if there are vacant positions for which the employee is qualified in which you could provide the accommodation.
  • If you simply cannot grant a requested accommodation, consult with senior management, human resources, and your attorney to assess whether not providing the accommodation would be an undue hardship or whether you can otherwise defend this decision.
  • Finally, document your discussion with the employee, and be sure it is clear that you did all you could to make it work.

Courts and juries like employers who try to figure out ways for disabled employees to keep working. Make sure you fit that mold before you end up in court.