The West Virginia Supreme Court of Appeals recently offered employers some guidance—and perhaps some encouragement—in determining whether an employee is a “qualified individual with a disability” and, more important, what’s “reasonable” when you’re accommodating an employee during the initial training period.
Facts
“Jessica” applied and was hired for a customer service position with the West Virginia Division of Motor Vehicles (DMV). Jessica suffered a traumatic brain injury as a child, and as a result, her ability to learn new tasks, solve problems, and interact appropriately with others is limited. She didn’t mention her condition to the DMV during the interview process or at the time she was hired, nor did she request any accommodations at that point.
At the beginning of her training period, Jessica told the office manager that she learns by repetition and she “like[s] to take lots of notes.” The DMV gave her a notebook containing documents related to her job duties and encouraged to her to take notes in it during the training period.
Several weeks into her training, Jessica told the office manager that she suffered a childhood traumatic brain injury, which was the reason she was having trouble retaining the training information. The office manager asked her what she needed to help her learn, and Jessica replied that taking notes and repetition were beneficial. As part of her training, she was repeatedly encouraged to take notes, given “cheat sheets,” and assigned to work with another employee in an attempt to help her succeed at her job.
Jessica was given months to learn the tasks of her job even though most new employees were trained and could work independently after 2 to 4 weeks. The DMV reviewed her performance at 60 days and 90 days, and noted that she wasn’t learning the job or working independently. However, she was given more time and assistance to learn the job.
Four months after she began the customer service job, the DMV asked Jessica to provide proof of her disability and encouraged her to request a reasonable accommodation. She provided the medical information and requested that she be allowed “to learn through a step-by-step format and through repetition” as an accommodation. The DMV denied her request because it had already provided that accommodation throughout her training without success.
The DMV concluded that Jessica wasn’t qualified to perform the essential functions of the customer service job with her requested accommodation. As a result, her employment was terminated nearly 6 months after it began. She then filed a charge with the West Virginia Human Rights Commission (WVHRC) claiming the DMV failed to reasonably accommodate her disability.
The WVHRC determined that the DMV had failed to reasonably accommodate Jessica and reinstated her to the customer service position with back pay. The DMV appealed the commission’s decision to the West Virginia Supreme Court of Appeals.
Court’s Decision
The court reversed the WVHRC’s decision, finding Jessica wasn’t a qualified individual with a disability. In reaching that conclusion, the court lauded the DMV’s attempts to accommodate her by asking her what she needed to succeed, providing her additional training, and granting her the specific accommodations she requested.
The court correctly determined that despite all of that support, she was unable to demonstrate her ability and competency to perform the job with accommodations. As a result, she wasn’t a qualified individual with a disability.
The court emphasized that the DMV wasn’t required to alter Richardson-Powers’ job duties to provide her a slow-paced and essentially identical day-to-day work experience. The court acknowledged that while “the law requires that disabled individuals be given the same opportunities as nondisabled persons, [it] does not permanently tie the hands of an employer with regard to making personnel decisions.”
Moreover, the court noted, “an employer has the right not to hire or to fire employees who are unable to perform a job because they are generally unqualified or have a handicap that impedes job performance, subject to the ‘reasonable accommodation requirement.'” Richardson-Powers v. WV Division of Motor Vehicles.
Takeaways
The court relied heavily on the DMV’s written notes as proof that it had complied with the law and had made good-faith efforts to accommodate Richardson-Powers. The employer’s notes were sufficiently detailed to reflect that the feedback it provided her was clear and she was given every opportunity to succeed. Complying with the law and sufficiently detailing how you did so may not allow you to completely avoid litigation, but it will certainly give you a leg up in defending your legitimate decisions.
Here are some of the takeaways from this case:
- Follow the process. If an employee implicitly or explicitly raises the need for an accommodation, ask her what she needs to be successful, implement the accommodation (or a reasonable equivalent), and give her a chance to perform her job satisfactorily.
- Document the process. Document the fact that the employee asked for help, you asked her what she needed, and you provided help. Then document whether the accommodation allowed the employee to perform her job satisfactorily.
- Provide honest feedback. It’s incumbent upon the employer to provide candid feedback to employees about their performance and document those sometimes difficult discussions.
You may contact Allison Williams at 304-933-8144 or allison.williams@steptoe-johnson.com.