A recent case from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Tennessee employers) illustrates the pitfalls of failing to modify workplace policies to accommodate workplace requests and highlights the importance of supervisory training.
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Facts
Linda Atkins was a sales associate for Dollar General in East Tennessee. In 2011, she was promoted to the position of lead sales associate, which put her in charge of handling the cash in the store during the day, depositing the cash at night, and closing the store. In addition, she continued to work the register and check out customers.
Atkins is a type II diabetic who occasionally suffers from hypoglycemia (low blood sugar), so she needs to respond to episodes by quickly consuming glucose to avoid seizing or passing out. She prefers to use 100 calories of orange juice for this purpose because it acts quickly and is easy to measure and consume.
When Atkins experienced hypoglycemic episodes at work, she typically excused herself to the break room, where she kept her orange juice in a cooler. However, her new role as lead sales associate often required her to work alone (such as near closing time). When she was alone in the store with several customers who needed to be checked out, she could not retreat to the break room. Worried that she might have an episode while on duty and not be able to get to the break room, she asked her manager if she could keep orange juice at her register. Her manager denied the request, stating that store policy prohibited it.
After her promotion, Atkins suffered two hypoglycemic episodes, one in late 2011 and one in early 2012. Because she was working alone with eight to 10 customers in the store each time, she couldn’t retreat to the break room. Instead, she took a bottle of orange juice from the store cooler and drank it. After each episode ended, she paid the $1.69 she owed for each bottle of juice. Both times, she told the store manager what happened.
In March 2012, the district manager and loss prevention manager conducted an audit of the store to address employee theft and other merchandise “shrinkage” issues. They interviewed Atkins, who admitted she had twice taken orange juice from the store cooler during a medical emergency and paid for it each time. The two managers thought those events violated Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it. They fired her at the end of the meeting.
Atkins filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). After investigating the claim, the EEOC filed a lawsuit against Dollar General for violating the Americans with Disabilities Act (ADA). Atkins also intervened in the lawsuit, hiring her own counsel. The case was heard by a jury, which awarded Atkins $27,565 in back pay and $250,000 in compensatory damages. The court awarded her lawyers $445,322 in attorneys’ fees and $1,677 in expenses. Dollar General appealed the matter to the 6th Circuit.
Appeals Court’s Decision
Atkins claimed that Dollar General failed to offer a reasonable accommodation for her disability and fired her for discriminatory reasons based on her disability, and the jury agreed. On appeal, the company argued that it had no duty to accommodate her by letting her keep orange juice at her register because there was evidence that she could have treated her hypoglycemia in other ways. For instance, evidence was submitted that glucose tablets, honey, candy, and peanut butter crackers would have been equally effective to counter a hypoglycemic episode.
Atkins responded that these other methods of treating an episode weren’t as easy, effective, or quick-acting as consuming orange juice. She further pointed out that Dollar General’s policy stated that employees “should not chew gum or eat/drink, except during breaks,” so the company likely would have prohibited those supposed alternative methods of treating a hypoglycemic episode, just as it prohibited her from keeping orange juice at the register. The company responded by pointing out that its “no eating or drinking while on duty” policy did contain a disclaimer stating that exceptions may be permitted for disabilities depending on the circumstances.
The court wasn’t swayed, observing that Atkins actually did ask for an accommodation (when she asked her manager if she could keep orange juice at the register) and was denied, with no further attempt by Dollar General to explore alternative accommodations. The court held that the company had a duty to take further steps to address the situation and failed to do so, thus failing to provide a reasonable accommodation in violation of the ADA.
Dollar General also argued that the jury’s verdict that Atkins was wrongfully terminated should be reversed because it had a legitimate nondiscriminatory reason for terminating her—namely, her admitted violation of the “no grazing” policy.
The court wasn’t buying it, pointing out that an employer may use a “legitimate nondiscriminatory reason for termination” only as a defense against indirect or circumstantial evidence of termination. In this case, however, the court found that there was direct evidence of discrimination, consisting of the failure to provide a requested reasonable accommodation, which led directly to Atkins’ termination. In other words, an employer cannot illegitimately refuse to modify a policy to accommodate a disabled employee and then use her violation of the same policy as the basis for termination. As the court explained, that would be like refusing to allow a teacher with mobility problems to have classes only on the first floor and then firing her after she was late to class on the second floor because she had difficulty making it up the stairs.
When Dollar General tried to argue that Atkins couldn’t prove that similarly situated employees were treated differently, the court again dismissed the argument as irrelevant in a case based on direct (as opposed to circumstantial) evidence of discrimination. In the end, the court affirmed all aspects of the jury’s verdict, including the damages and attorneys’ fees awards. Equal Employment Opportunity Commission et al. v. Dolgencorp, LLC, Case No. 17-6278 (6th Cir.).
Practical Guidance
The case provides a great learning opportunity regarding the interactive process required by the ADA. The main point here is not so much whether this employee should have been allowed to have orange juice at the register (she probably should have, but again, that’s not the point). Perhaps her request was reasonable; perhaps it was not. Perhaps other options—such as glucose pills—would have worked as well; perhaps not. Perhaps another solution could have been reached that wasn’t even discussed in the case. Or perhaps no accommodation would have been workable.
The point is, the employer in this case failed to have that conversation with the employee. Rather, the store manager simply denied the request, with no further discussion. Yes, the employer’s written policy stated that disabilities would be accommodated, and yes, the employee could have taken the initiative to push the matter further, bringing other suggestions or going above her manager’s head to present her request. But employers must keep in mind that once an accommodation request is presented—regardless of whether it is reasonable and whatever your policy says—under the law it’s your responsibility, not the employee’s, to initiate the interactive process. If you fail to engage in the interactive process, you cannot later defend yourself by saying the employee’s initial request was unreasonable or not practical or created a hardship for the business. You must go through the process. Wherever the process leads—even if you end up denying the request—you will be on better legal footing.
And, of course, the process can be initiated only by management personnel who understand this issue and their responsibilities. In other words, supervisors need to be able to recognize an ADA accommodation request when they hear one and know where to direct the request. It’s very likely the manager who denied the orange juice request in this case was simply trying to do his or her best to enforce company policy and make sure the employee didn’t get in trouble for breaking a rule. But the manager should have presented this request to HR (or whomever the organization has tasked with ensuring ADA compliance) for further discussion.
Likewise, the two managers who fired Atkins for violating the “grazing policy” apparently failed to recognize a lurking ADA issue. So, everybody thought they were just following the rules, and probably nobody meant to do wrong, but the substantial verdict in this case shows how the best intentions can lead to a pretty awful result. In this case, the claim of an employee probably working for—or close to—minimum wage, whose economic losses from being fired were modest, ended up costing the employer close to three quarters of a million dollars.
It’s absolutely critical to regularly train all supervisory personnel on the basics of ADA compliance, including how to handle workplace requests from employees with known or suspected medical conditions. The more supervisory turnover you have, the more frequently you need to conduct such training.
Kara Shea is a partner in the Nashville office of Butler Snow, and editor of Tennessee Employment Law Letter. She may be reached at kara.shea@butlersnow.com.