Most employers know they have to make reasonable accommodations for an otherwise qualified employee with a disability under the Americans with Disabilities Act (ADA). But you may not know that the task of determining what qualifies as a reasonable accommodation doesn’t fall solely on you. A recent court decision reminds employers and employees that when it comes to reasonable accommodations, the recipe for success includes both parties’ input on what accommodations are appropriate.
Paper or plastic?
Sean Reeves was hired by Jewel Food Stores in 1997 to work as a checkout bagger. Reeves has Down syndrome, the genetic disorder that causes lifelong intellectual disability and developmental delays. To perform his work as a checkout bagger, Reeves received a variety of vocational tutoring and training.
A social service agency sent Jewel a job coach to help train Reeves. Additionally, Jewel provided individual training so Reeves could understand how to perform his daily tasks and could learn to control his emotions when he was frustrated. Going one step further, it instituted supervision policies that applied only to him. At the end of each day, Reeves’ supervisor would complete an evaluation form telling his parents whether he had performed that day’s tasks in a satisfactory way.
Sour grapes
Despite that training, Reeves struggled to perform his job without running afoul of Jewel’s policies. When he first started working at the store, one of his tasks was collecting the shopping carts from the parking lot. He had to be taken off that duty, however, after he started giving unsolicited parking advice to Jewel’s customers. On another occasion, he cursed at a manager when the manager used his usual lunch table for a wine tasting. He also was reprimanded for cursing about a customer—who was within earshot—after she complained that he ate her grapes as he was bagging them.
In March 2005, Reeves took an American flag pin from a Jewel shelf without paying for it. Under the store’s policies, employee theft of any merchandise is cause for immediate termination. Jewel wrote up Reeves after this incident but chose not to terminate him. Instead, it called his parents to tell them about the theft, and they asked if the store could bring in a job coach to help better train Reeves.
Reeves’ supervisor said the extra instruction wasn’t necessary, so he didn’t receive any additional training. His parents didn’t push back after Jewel said the extra training wasn’t necessary and instead dropped the issue of the job coach.
This Bud’s not for you
A month later, Reeves’ mouth got him in trouble once again after a cashier who was under 21 asked a manager to ring up alcohol for a customer. Reeves offered to ring up the purchase, but the cashier told him he didn’t have the training or experience needed. This offended Reeves, and unfortunately, his earlier training on controlling his emotions failed him. Reeves told the cashier, “Fuck you, you stupid blond.” He made the comment within earshot of a customer and two other employees. On April 12, 2005, Reeves was fired after an investigation showed he had violated Jewel’s antiharassment and disciplinary policies.
Reeves then filed a claim with the Equal Employment Opportunity Commission (EEOC) stating that Jewel had discriminated against him because of his disability and that Jewel engaged in a pattern and practice of denying reasonable accommodations to a class of disabled employees. The EEOC issued a right to sue notice, and Reeves’s parents filed a lawsuit on Reeves’s behalf stating that Jewel had violated the ADA by failing to accommodate Reeves’s disability.
You say potato, I say potahto
To establish a claim for failure to accommodate under the ADA, Reeves needed to show that:
- He was a qualified individual with a disability;
- Jewel was aware of his disability; and
- Jewel failed to reasonably accommodate that disability.
Jewel and Reeves both agreed that the first two parts of the test—qualified individual and employer awareness—had been met. The only issue before the district court was whether Reeves could show that Jewel had failed to reasonably accommodate his Down syndrome.
A reasonable accommodation is defined as a “modification or adjustment to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enables [a qualified] individual with a disability . . . to perform the essential functions of that position.”
Once an employee requests a reasonable accommodation, the employer must engage in a flexible, interactive process to identify the necessary accommodations. Ultimately, both the employee and the employer are responsible for determining what (if any) accommodations are needed. If the employee doesn’t give the employer enough information to determine the necessary accommodations, the employer can’t be held liable for failing to accommodate. On the other hand, if the employer fails to respond to the employee’s reasonable requests for accommodation or refuses to consider or implement reasonable accommodations, it will expose itself to ADA liability.
Bag it
The district court found that Reeves couldn’t show Jewel failed to reasonably accommodate him and ruled in the store’s favor. Reeves then appealed the lower court’s decision to the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana, and Wisconsin employers).
According to the appellate court, Reeves hadn’t done enough to help Jewel decide what accommodations were necessary to stop the type of profane outbursts that led to his termination. Although his mother suggested that Jewel bring in a job coach after he was caught stealing the flag pin, she didn’t press the issue after it said the coach was unnecessary, didn’t suggest alternative accommodations, and didn’t tell the store she had any fears that Reeves would have additional behavior problems, such as the use of foul language.
Because Reeves’ request for a job coach addressed only his sticky fingers and not his profane outbursts, he hadn’t provided Jewel enough information to help it determine what accommodations were necessary. Case dismissed. Reeves v. Jewel Food Stores, Inc., No. 13-3782 (7th Cir., July 17, 2014).
Checkout
Although employers have a duty to provide a reasonable accommodation for a qualified employee with a disability, you normally need not discern what is needed on your own. Once you know about a need for accommodation, you should communicate with the employee to discuss what accommodations may be appropriate and reasonable under the circumstances. During this interactive process, the employee has a duty to help you determine what accommodations are necessary by providing you with enough information. If the employee fails to cooperate, you’re not required to go it alone.
Kelly Smith-Haley is an attorney with Fox, Swibel, Levin & Carroll, LLP. She may be contacted at ksmithhaley@fslc.com.