Diversity & Inclusion, HR Management & Compliance

Failure to Accommodate Autistic Worker Ends with Settlement of EEOC Disability Lawsuit

The Americans with Disabilities Act (ADA) and the ADA Amendments Act of 2008 (ADAAA) prohibit an employer from discriminating against an individual who is (1) disabled within the statutes’ meaning and (2) qualified to perform the essential job functions with or without a reasonable accommodation. Once an employee discloses the need for a reasonable accommodation, an employer must undergo an interactive process with the individual to assess the potential solution. The duty to accommodate and engage in the interactive process with the employee is ongoing and isn’t exhausted by one effort. While an employee can’t demand a particular accommodation when several are available, once a solution is decided upon, the employer must follow through. Read on to find out what happened when one Arizona company failed to do so.

Setting the Scene

An individual with autism and ADHD applied to be a sandwich artist for a franchise operation. According to a complaint filed with the U.S. District Court for the District of Arizona, after the application was submitted, his mom met with the manager to explain her son would need reasonable accommodations to be successful. Specifically, she said he would need to:

  • Receive specific instructions to complete the sandwich artist’s tasks;
  • Have the directions repeated and receive redirection; and
  • Get follow-up guidance to ensure he understood the steps to follow.

After the conversation, the franchise hired the applicant as a sandwich artist.

The complaint alleges that after the individual was hired, he received no formal training. In fact, the franchise allegedly never provided any of the requested accommodations that would have allowed the sandwich artist to perform the essential job functions. After working only four shifts, he was fired.

EEOC Sues

After the termination, the former sandwich artist filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). Following an investigation, the agency found reasonable cause to believe the franchise had violated the ADA and invited it to participate in informal methods of conciliation and “provide appropriate relief.”

The EEOC ultimately issued a notice of failure of conciliation and filed a lawsuit against the franchise on the former sandwich artist’s behalf. After a brief effort to litigate the case, the agency recently issued a press release announcing a $30,000 settlement agreement. The consent decree also requires the employer to:

  • Amend its EEO policy;
  • Conduct training on disability discrimination;
  • Provide periodic reports to the agency; and
  • Post an antidiscrimination notice at its sandwich shop.

Lessons Learned

The franchise appears to have set the sandwich artist up for failure. When it hired him, it was allegedly aware of the necessary accommodations and impliedly agreed to them. Yet, it seemingly failed to provide any of solutions necessary to help him perform the essential job functions.

When the franchise learned of the need for accommodations, it needed to take the necessary steps to provide the seemingly reasonable options. The solutions could have been as simple as:

  • Having the sandwich artist shadow a high-performing employee for a shift to learn the repeated processes necessary to make a custom sandwich for each patron; or
  • Arranging for a coworker to shadow the sandwich artist so he could ask questions as he was learning the process.

Neither accommodation likely would have been determined to be an undue burden. Plus, there were likely many other available options. Then, had the former sandwich artist been unable to perform his job after the training and receipt of the reasonable accommodation(s), the franchise would have been able to terminate his employment and not have the EEOC monitoring its practices.

Jodi R. Bohr, an attorney with Tiffany & Bosco, P.A., in Phoenix, practices employment and labor law with an emphasis on HR management counseling, litigation, class actions, and other HR matters. Jodi’s determination and responsive style consistently earn client trust and confidence as well as successful results. You can reach her at jrb@tblaw.com.