Reasonable Accommodations

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“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.

Remember: Pregnant Employees Are Entitled to Reasonable Accommodations Too!It should come as no surprise that employers must treat pregnant employees just like everyone else when it comes to reasonable accommodations. We’ve blogged on this topic several times before, but a recent lawsuit by the EEOC in North Carolina merits a renewed focus on the issue.

The EEOC has sued Century Care of Laurinburg, Inc. d/b/a Scottish Pines Rehabilitation & Nursing Center over its treatment of two pregnant certified nursing assistants (CNA). According to the complaint, both CNAs requested accommodations to not lift more than a certain weight—an accommodation allegedly given to other employees who had been injured on the job. The EEOC says that the employer said such light duty was only available to employees with on-the-job injuries and denied the accommodations. When the CNAs’ doctors would not revoke the lifting restrictions and they had no more leave available, they were terminated. The complaint is seeking injunctive relief (including company policy changes), back pay, compensatory damages, and punitive damages on behalf of the terminated nurses.

Although the end result is yet to be seen, this case serves as a good reminder to employers to be careful when considering accommodations, especially when dealing with pregnancy-related accommodations. The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions and provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” This means that employers must treat pregnant employees the same as other employees. If a pregnant employee requests accommodation, the employer must consider a reasonable accommodation just like it would for a non-pregnant employee with a medical condition. That doesn’t mean that a pregnant employee must receive the requested accommodation. But the Scottish Pines lawsuit reminds employers to consider a pregnant employee’s request for reasonable accommodation just like any other request and that treating on-the-job injuries differently can land you in court.

“Sooo… We Need to Talk” – The Consequences of Failing to Engage in the Interactive ProcessThe ADA requires employers to engage in an interactive process with disabled employees, and courts often set a high bar for what that looks like. Expensive litigation continues to be the consequence when employers terminate an employee during or at the end of the interactive process. The need for managers and supervisors to understand how to communicate and clearly document that communication with employees is never more critical than when they are facing an employee who needs an accommodation to perform his job. McClain v. Tenax Corporation is a sobering reminder of how much emphasis federal courts place on employers engaging in the interactive process and working with employees with disabilities.

Background

Terry McClain, who worked for Tenax Corporation, was born with hand and foot deformities—two fingers on each hand, half a foot on each side, and no toes. As a result, McClain had difficulty grasping with his hands, walking, and climbing up or down steps. Nevertheless, he worked 40 hours per week supervising temporary janitorial employees. After a year or so, Tenax cut McClain’s hours in half because of a production slowdown. To make up for his loss of hours, Tenax offered McClain additional work wrapping pallets and moving them to a warehouse. McClain accepted the work and began working part time in his janitorial position and part time in his pallet-wrapping position.

Unlike his janitorial position, the pallet-wrapping work required McClain to constantly climb in and out of a forklift. Within two days, McClain was experiencing pain and receiving complaints from Tenax managers about his inability to complete his work efficiently. Because of the issues that he was having, McClain told the plant manager that he could not perform the pallet-wrapping work and requested that Tenax accommodate his disability by allowing him to return to his original position on a full-time basis. According to McClain, Tenax managers gave McClain an ultimatum—do both jobs or quit. Ultimately, McClain quit and sued Tenax for violating the ADA by failing to accommodate him and retaliating against him for requesting accommodations.

District Court Denies Employer’s Summary Judgment Motion

Tenax moved for summary judgment, asserting that it could not have failed to reasonably accommodate McClain because his requested accommodation—a full-time janitorial position—did not exist. The U.S. District Court for the Southern District of Alabama disagreed.

First, the court explained that an employer must make a reasonable accommodation for the known physical or mental limitations of an otherwise qualified employee unless the accommodation would impose undue hardship on the operation of the business. The court noted that McClain frequently informed his managers of his inability to perform the essential functions of his job because of his disability and requested a specific accommodation—a return to his previous full-time position. The court determined that Tenax had not proven that accommodation would have posed an undue hardship.

Returning to Tenax’s argument that it had no full-time janitorial positions, the court ruled that Tenax failed to present any evidence that this statement was true during the two-month period that McClain worked part time wrapping and moving pallets. However, the court’s most significant holding was that the facts presented by McClain gave rise to a reasonable inference that Tenax discriminated against McClain because of his disability and precluded summary judgment in Tenax’s favor on McClain’s failure-to-accommodate claim. The court stated that McClain presented sufficient evidence that Tenax had summarily rejected all of his requests by informing him that his only options were to keep doing both jobs or resign. If Tenax gave such an “all-or-nothing ultimatum,” it would have “slammed the door on any possibility of a reasonable accommodation, foreclosed the option of McClain working just as a part-time [janitor, and] obliterated any possibility that the ADA interactive process could ever take place.”

Have the Tough Conversation

So what should employers do to avoid (or be in the best position to defend) failure to accommodate claims?

  1. Have the tough conversations! It is true that these discussions may be awkward and seem personal and invasive, but they are necessary to protect your business. Engaging in an open dialogue with your employee about his disability and what he needs to successfully perform his job—even if you can’t provide the accommodation—places you in the best position to defeat potential claims of ADA discrimination in the future.
  2. Don’t look for magic words. Remember that while an employee must affirmatively request a reasonable accommodation, there is no specific language that must be used to prompt an employer to begin the interactive process. As soon as the employee expresses that he cannot perform the essential functions of his job because of a disability, whether formally or informally, it is time to begin asking questions. If you need information from his doctor, get it (keeping in mind that you are interested in his ability to do the job and not a lot more).
  3. Talk to your core decision makers. After you are fully aware of the employee’s limitations, communicate with HR and other necessary management personnel in the employee’s department to determine what options are available and how you will be impacted by implementing such options. Once you have decided on an accommodation—and especially if you have decided that you can’t provide an accommodation—talk with legal counsel to review what your obligations are under the ADA and ensure that you have considered all sides and have properly documented the interactive process.
  4. Accommodate if you can, and clearly document if you cannot. Make sure your employee fully understands that you want to work with him. If you cannot accommodate him in his job, look at vacancies and explain those options.

Employers can’t always reasonably accommodate an employee’s disability. Hopefully, by consistently using these strategies on a case-by-case basis, you can avoid this growing area of litigation.