Most employers know that state and federal anti-discrimination laws require you to offer reasonable accommodations to disabled workers to allow them to perform their jobs. But applying this seemingly straightforward rule to real-life situations is often trickier than it sounds. In several recent cases, employers have found themselves on the wrong end of expensive lawsuits after failing to take extra steps to accommodate their employees. We’ll take a look at some of the charges these employers faced and how you can avoid similar problems with accommodation issues.
Secretary Develops Speech Problem
The first case involved an executive secretary for Neiman Marcus. Carol Cooper had been with the retailer for about eight years when she began having trouble speaking. As the condition worsened, her speech became slurred, she was unable to enunciate clearly, and she sounded as though she was drunk or on drugs.
Improve Or Be Fired
Cooper was diagnosed with dysarthria, or slurred speech, but no underlying medical cause was found. Although Neiman Marcus accommodated Cooper by permitting her to leave work early to attend therapy, her speech did not improve.
Finally, after documenting complaints about her speech from customers and co-workers, Neiman Marcus offered Cooper a choice. She could resign effective in 90 days or be let go at the end of that period if she couldn’t perform at a “standard” level.
Cooper asked to be reassigned to a new position not requiring significant verbal communication, but was told no positions were available. She then elected the resignation option, but later turned around and sued Neiman Marcus for violating the Americans with Disabilities Act. She claimed the company terminated her because of her speech impediment and that it had made no attempt to accommodate her. Neiman Marcus took the position that Cooper had quit and therefore she could not sue for disability discrimination.
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Employer Loses First Round
The Ninth Circuit Court of Appeal, which covers California, ruled that the “choice” Neiman Marcus offered was an illusion. She was going to lose her job regardless of which option she picked because there was no realistic prospect her condition would improve within 90 days.5 The case now returns to the lower court to decide whether Neiman Marcus should have done more to accommodate Cooper’s speech disorder.
Mechanic Demands Special Hours
The second case involved Ronald Brown, a maintenance mechanic who worked for LNP Engineering Plastics Inc., in Santa Ana. While on a medical leave, Brown was diagnosed with a sleep disorder that caused fatigue and body pain. His doctor eventually released him to return as long as he didn’t work overtime or late shifts.
LNP refused to agree to the restrictions, contending the ability to work overtime and flexible shifts was an essential function of Brown’s job. Three weeks later, Brown was fired for poor attendance. He sued LNP for disability discrimination under California’s Fair Employment and Housing Act, which is similar to the ADA.
Jury Awards More Than $1 Million
At the trial, Brown argued LNP refused to accommodate him because it had a “fitness-for-duty” rule that didn’t permit employees to return to work unless they could perform 100% of their job duties. Brown charged LNP’s fitness-for-duty policy was too broad, violating the law requiring employers to reasonably accommodate disabled employees who cannot perform all their job duties.
The jury agreed with Brown and awarded him more than $1 million in economic and punitive damages. LNP denied Brown’s allegations and is appealing.
Limit Your Risks
These cases illustrate the dangers of failing to go far enough to accommodate workers’ disabilities. Here are some helpful strategies to avoid similar problems:
- Identify essential job functions. If an employee can do the essential functions of the job with or without an accommodation, you can’t refuse to accommodate them simply because they can’t perform every aspect of their position. Detailed job descriptions that focus on essential job functions can be a big help in determining what accommodations, if any, are possible.
- Consult with the employee. The ADA requires you to consult with the disabled worker to try to come up with a reasonable accommodation. Doing so can also help defuse potentially contentious situations. The employee can often suggest accommodations for addressing their needs at little or no cost. And if you can’t reach an agreement and the person sues, the fact that you took extra steps to try to accommodate the employee will strengthen your defense.
- Consider reassignment. You may have an obligation to reassign the worker to a vacant position if there isn’t an accommodation that will enable the person to perform their present job. Note that you’re not required to create a new job or bump another employee to reassign a disabled worker. However, larger employers could have trouble convincing a jury that they couldn’t find another spot for the person.