Once an employee with a disability covered by the Americans With Disabilities Act (ADA) requests a reasonable accommodation for that disability the employer has a duty to explore the nature of the employee's limitations, if and how those limitations affected his or her work, and determine what types of accommodations could be made. The employer and employee have a duty to in good faith discuss what sort of reasonable situation -- one that addresses fairly the problem(s) caused by the employee's disability -- can be worked out. An illustration of this process and the consequences for an employer that ignores this duty is found in the recent Sixth Circuit decision, EEOC v. Dolgencorp LLC.
Linda Atkins, the employee, was diabetic, and she'd had some hypoglycemic episodes that had twice caused her hospitalization. She was also a good employee for Dolgencorp LLC, which we know as Dollar General store. Atkins had found orange juice was an effective response to ward off a hypoglycemic event - it acted quickly and was easy to measure. She adopted the practice of keeping some orange juice in a personal cooler in the store's breakroom.
Atkins was sometimes obliged to work alone in the store. In these instances and where there were customers in the store, Atkins could not retreat to the breakroom and drink orange juice when he felt a hypoglycemic episode coming on. She asked her store manager if she could keep some orange juice at the register at the front of the store and was told that company policy forbade it.
So Atkins was stuck between a rock and a hard place: she couldn't go back to the breakroom and get to her orange juice, and the employer had said she couldn't keep the orange juice near her work station at the front of the store. Put in ADA terms, Atkins had requested a reasonable accommodation for her disability -- that she keep some orange juice accessible at the front of the store to ward off any hypoglycemic event and the employer had refused, citing policy.
Dollar General having refused a reasonable accommodation, Atkins was twice forced -- in instances where she sensed the onset of a hypoglycemic event -- to take and drink a bottle of orange juice from the store cooler, paying for it in full afterward. She reported these instances to her store manager.
A "shrinkage" investigation triggered Atkins' firing. Investigators interviewed Atkins, and she volunteered to them the two instances where she had taken, consumed and then paid for the orange juice in emergency situations. But these investigators could only see things in one way: they concluded Atkins had violated Dollar General's "grazing policy," which forbids employees from consuming merchandise in the store before paying for it, and so they fired Atkins.
A jury found for Atkins and awarded her $27,565 in back pay and $250,000 in compensatory damages. Dollar General appealed.
Dollar General's principal argument on appeal was that "it had a legitimate, nondiscriminatory reason for firing Atkins, namely the company anti-grazing policy." The argument amounts to this: we had a policy that applied to everyone and any employee that violated it would be fired, regardless of whether they had a disability or not; hence, it follows, Atkins' disability was not a factor in her firing. Nonsense, the Sixth Circuit concluded, and explained as follows:
But 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 him. Imagine a school that lacked an elevator to accommodate a teacher with mobility problems. It could not refuse to assign him classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would had had a reason to buy the store's orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution.
A defendant may use a legitimate, nondiscriminatory rationale as a shield against indirect or circumstantial evidence of discrimination. But a neutral policy if of no moment when an employee presents direct evidence of discrimination. And failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination. Hence "failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.
The bottom line: Denial of a Reasonable Accommodation of a Disability is Disability Discrimination.
Robert L. Abell
www.RobertAbellLaw.com
