“Stupid is as stupid does.”
The Americans with Disabilities Act (ADA) became law in 1990. Despite being the law of the land for 29 years, the ADA continues to confound businesses. Last week, a jury found Walmart liable for violating the ADA when it refused to accommodate the disabilities of a longtime employee; it awarded the employee $5.2 million in damages.
Walmart could “afford” the large verdict, but your company cannot. This article will help you make good employment decisions so you can focus on doing the business of your company.
Walmart employed a deaf and visually impaired cart pusher for 16 years in its Beloit, Wisconsin store. The employee performed his job with the accommodation of assistance from a job coach provided by public funding.
Shortly after a new store manager arrived, however, the manager suspended the employee and forced him to resubmit medical paperwork in order to keep his job. When the employee submitted new medical paperwork, requesting the continued accommodation of assistance from the job coach, the store cut off communication and effectively terminated him.
After a 3½-day trial, the jury found in favor of the EEOC and awarded the employee $200,000 in compensatory damages and an additional $5 million in punitive damages.
“Employers have a legal obligation under federal law to work with employees who need accommodations for disabilities,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District. “When companies shirk that obligation, the EEOC will fight to uphold the rights of disability discrimination victims. In this case the jury sent a strong message to Walmart and to other employers that if they fail to live up to their obligations under the law, they will be penalized.”
ADA REASONABLE ACCOMODATION REQUIREMENT
We do not need to know every detail of the Walmart case to know this: cases that end up in court often share a common thread of employer mistakes. To help you avoid making such mistakes, let’s address what the ADA requires; then we will look at how to avoid common employer mistakes.
The ADA prohibits employers from discriminating against employees with physical or mental disabilities. It requires that employers provide reasonable accommodations for such employees to be able to perform their jobs.
“Reasonable accommodation” means any change to a job or work environment that permits an employee with a disability to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:
- providing or modifying equipment or devices,
- job restructuring,
- part-time or modified work schedules,
- reassignment to a vacant position,
- adjusting or modifying examinations, training materials, or policies,
- providing readers and interpreters, and
- making the workplace readily accessible to and usable by people with disabilities.
An employer is required to provide a reasonable accommodation to an applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship — that is, that it would require significant difficulty or expense.
HOW TO STAY ADA COMPLIANT AND OUT OF COURT
Here are six core issues to consider when disciplining or terminating employees with mental or physical challenges:
1. Terminating or disciplining an employee with a long tenure at the company.
The Walmart employee had been with the company for 16 years, when all of a sudden it appeared that Walmart changed the rules of the game. Any time you have an employee with a lengthy work record you should think twice about whether terminating the employee will be perceived to be for an unlawful reason.
Have you ever been to a grocery store and been helped by someone who had a disability? I had a visceral reaction when I learned that Walmart had fired such a worker. Most of us have a place in our hearts for people who are faced with challenges but who nevertheless work thru those challenges; so did the Walmart jury. When terminating a disabled employee, think optics: how will this look to the public, or to a jury?
3. Ensure you have explored a reasonable accommodation for the employee.
Do not terminate a mentally or physically disabled employee without first (1) exploring in good faith whether you can provide the employee with a reasonable accommodation and (2) documenting your efforts, because to the EEOC if an issue is not documented it never happened (i.e. the EEOC will conclude that you did not comply with the reasonable accommodation requirement).
4. Terminating or disciplining an employee with no disciplinary history.
As with a long term employee, terminating a disabled employee with a good work history, history of good reviews, or no disciplinary history is risky.
5. Decide the basis for your “undue hardship” defense before you terminate a disabled employee.
“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of factors such as the nature and cost of the accommodation, the overall financial resources of the employer, and the type of operation or operations of the employer.
Before you terminate a disabled employee on the basis that an accommodation will cause an undue hardship to your company, ensure that you can support your conclusion with evidence and a reasoned analysis. Consider the relatively small cost of paying legal counsel for an hour or two of consultation on your prospective termination decision, versus possibly paying for hundreds of hours if you make a poor decision and require litigation counsel.
6. Eliminate conflict and risk via a severance agreement.
In many instances both the employer and employee are looking for a reasonable, amicable way out of a difficult situation. Instead of inflaming a situation by terminating an employee, consider the possibility of a negotiated resolution via a severance agreement; under such an agreement your company would pay the employee a sum of money and, in exchange, the employee would provide your company with a release of any claims the employee could assert.
You control your company’s destiny. If you understand the ADA and, equally important, human nature, your chance of ending up on the wrong end of a Walmart-like jury verdict will decrease to near zero.
Forrest: What’s my destiny, Mama?
Mrs. Gump: You’re gonna have to figure that out for yourself.
Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 28 years. Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator. Art can be found at www.bourquelaw.com, firstname.lastname@example.org, 602.559.9550, linkedin, or trail running with his dog, Eli.