Disability: Do you have to accommodate before they ask?
July 10, 2008 by Fred HosierPosted in: Dubious decisions, Here comes the judge, Special Report, Worst manager of the week
Does an obviously disabled employee need to ask for accommodation before the employer’s duty to accommodate kicks in? A federal appeals court says no, the employee doesn’t need to ask for the accommodation.
Here’s what happened: 19-year-old Patrick Brady took a job as a pharmacy assistant at a Wal-Mart store in Centereach, NY. His job included stocking shelves and dispensing prescriptions. He had two years experience at a similar job at a local pharmacy.
Brady has cerebral palsy. He walked slowly with a shuffle and limp, spoke slowly and quietly, and had a poor sense of direction.
After working one day in the pharmacy, Brady perceived that his supervisor was unhappy with him. Brady says he had no trouble performing his duties, but his supervisor wanted him to work faster.
The supervisor thought Brady had trouble matching customers’ names to their prescriptions. But Brady said he didn’t have trouble at Wal-Mart or in his two previous years of experience.
At the end of his first shift, Brady asked about his schedule, and his supervisor said she’d call him. After not receiving a phone call for days, Brady went to visit the store to get his schedule. He worked two more days in the pharmacy without incident but thought his supervisor was frustrated with him.
Brady was transferred to a position collecting shopping carts in the parking lot. Then he was transferred to stocking in the food section.
At the end of his first day in the food section, Brady was given a schedule that conflicted with his community college classes which he’d noted on Wal-Mart’s availability for work forms. Frustrated, Brady called the store and quit the next day.
Employee files lawsuit
After quitting, Brady became depressed, lost self-confidence, withdrew from his family, became angry and lost interest in his community college studies.
Then he filed a lawsuit against Wal-Mart, alleging a number of counts of discrimination under the Americans with Disabilities Act (ADA).
A jury found Brady was disabled under ADA and that Wal-Mart discriminated against him on the basis of his disability by transferring him from the pharmacy to the parking lot. It also found Wal-Mart had failed to reasonably accommodate him. He was awarded a total of $900,000 in compensatory and punitive damages.
Wal-Mart appealed on various counts, but the Second Circuit Court upheld the lower court ruling.
The decision on one of Wal-Mart’s grounds for appeal is something other companies should take note of.
Wal-Mart argued it had no duty to accommodate Brady because he never asked to be accommodated.
The court said Brady didn’t have to ask. The court said the ADA “speaks of accommodating ‘known’ disabilities, not just disabilities for which accommodation has been requested.”
There was no doubt Brady had a disability from his physical appearance, according to the testimony of several people during the trial.
The court has ruled previously that employers have the duty to engage in an “interactive process” with employees to assess whether a worker’s disability can be reasonably accommodated. It said Wal-Mart failed to do that.
What do you think of this case? It can be a sticky situation for an employer to take the first step and approach an employee about accommodation for a real or perceived disability. How would you have handled the supervisor who thought Brady was working too slowly even though he made no mistakes in his job? Let us know.
Tags: accommodation, ADA, disability
July 11th, 2008 at 9:24 am
I know of employers who ask during the interview if they need accomodations and if they can perform the job. I do not think employees shoudl HAVE to ask but if they feel they are not getting what they need they NEED to ask and the employer has a repsonsibility to follow through.
July 11th, 2008 at 9:43 am
The supervisor was clearly insensitive to the needs of this employee. My question though would be, to what degree must the supervisor keep the employee if the work is not done quickly enough to meet the demand? Can the employee be held to a performance standard that is necessary for this position? I would think yes. I would have suggested talking with him about the speed in which he worked and looking at ways they could help him. then if the pace could not be increased, they could offer him another position but to just transfer him was not appropriate. I agree with Jack that if the employee senses a problem with the supervisor, he also has some responsibility to speak up.
The HR Dept. should have recognized a problem when a brand new employee was transferred. However the employee should have expressed his concern so it could be addressed. I don’t think an employee should be able to collect against a company that He did not file an internal complaint with so they could address the issue directly before he quit. If he filed a complaint and then they did not respond and he quit because of that, then he has a case in my mind.
July 11th, 2008 at 9:50 am
I find it interesting that employers are required to ask about accomodations. In a recent interview I had an applicant inform me that his last job ended due to his disability. When I began to ask him about his disability and what accomodations he would need in the job he was interviewing for, he stood up stating “I resent you asking me that question! My attorney said you can not ask me anything about my disability”. When I tried to explain to this gentleman that I was only asking him about accomodations he picked up his coat and walked out of the interview. HR professionals are “damned if we do, damned if we don’t”.
July 11th, 2008 at 9:55 am
The supervisor has no empathy for the employee with cerebral palsy. She perceived and thought Brady had a problem doing his job. But it appears she had no grounds for her perceptions because he did not mismatch names. Many people are slow walkers and they do not have cerebral palsy. What is the perception then, laziness. I think the supervisor is not tolerant of people with handicaps. There, but for the grace of God, is she.
July 11th, 2008 at 10:01 am
I believe what occurred here is an attitudinal barrier. The supervisor has a responsibility to work with new staff, with or without a disability, to learn how they can best perform their job and to assist them with being successful. It is evident from the story that this supervisor had no interest in doing this and instead just wanted to “not deal” with his differences. Unfortunately in this situation, based on the fact that he had been successful in a similar position prior to this one, it appears that the supervisors attitude about this young mans disability was truly the disabling condition in play.
July 11th, 2008 at 10:02 am
It was clear the employee had a disability. If the disability was a problem, why did they hire him? Your not obligated to hire someone. Did the employee make it clear that he was not able to do the job in the interview? I think both parties were in error. First, if the employee had cerebral palsey, it should have been obvious that he was physically unable to do the job. Both the employee and the employer should have realized that before any hiring was done. Since they did hire him for that particular job, then they should have accomidated the disability. I think the employee deserved the award in that they handled how they treated him once he was hired. I think his hiring for that particular job was the original problem.
July 11th, 2008 at 10:05 am
You cannot ask directly about thier disability but you can ask general questions about accomodations that are the same for any person interviewing, not just those you think has a disability.
Unless an organization has a greivance procedure that employees are given an employee can take whatever steps they need to. the state I live in is an at-will state, protects the right of the employees over the employers in most cases. Employers need to make sure they have their ducks in a row.
If speed of work is an issue and part of the job, it should be in the job description. If itt is not, then this guy is not at fault.
July 11th, 2008 at 10:07 am
As employers and supervisors, you need to do everything you can to protect yourselves…policies and procedures are critical.
July 11th, 2008 at 10:18 am
I thought under ADA, a company must provide accomodation to an employee as long as it does not create a hardship on the employer. If the employee was moving slower than what would be required of the job, wouldn’t that be a hardship and would the company have to keep the employee in that particular position?
July 11th, 2008 at 10:21 am
Note from the editor: Brady had experience in a similar position at another pharmacy for two years. That implies that he was able to do the new job. However, we don’t know whether his physical condition changed in between the two jobs or whether the volume of customers at the new job (it was a Wal-Mart) was a factor.
July 11th, 2008 at 10:33 am
The key words here are “the supervisor THOUGHT he couldn’t match names with prescriptions” and “the employee THOUGHT his supervisor was frustrated with him”. If the supervisor had expressed his concerns in a reasonable manner and asked the right questions, the employee would have understood the concern and they could have resolved the problem or come to a mutual decision that he was unable to perform.
July 11th, 2008 at 10:34 am
How much of a hardship is it when an employee moves a little slower?
But it was wrong, no matter what, that they changed his job, gave him a schedule that was conflicting on purpose. That behavior of an employer with no written notification or warning, is unacceptable.
July 11th, 2008 at 10:50 am
Employers have a responsibility as well as a moral obligation to ask whether or not a disabled employee requires special accommodations. Once these accommodations are set forth and accepted by both parties, a signature would be in order. This protects both employee and employer from possible lawsuits.
July 11th, 2008 at 10:52 am
I have a question on accommodating individuals with mental illness/disability such as ADHD or bipolar. An employee informed her supervisor that she is having problems meeting deadlines and maintaining focus on tasks because of ADHD. How should I approach the employee and do I recommend accommodations (if so, what?) or let the employee ask? Thanks in advance for advice. BTW, our ADA policy says we will make reasonable accommodations, etc.
July 11th, 2008 at 10:55 am
I have an employee who works at a rate slightly slower than his coworkers because of a disability. He has worked in my laundry department for the past 10 years and I wouldn’t trade him for anything. He always shows up on time for work, he never takes “extended” breaks or loses track of time, he rarely calls in sick, and he is never the one goofing off when I enter the laundry room. And he never complains! He has a work ethic over and above anyone else and I think that makes up for a few extra minutes here and there. If you add it up, he probably costs me less that the next guy overall. It’s like the tortoise and the hare and you know who won the race!!
July 11th, 2008 at 11:13 am
for Deborah-do offer accomodations, ask your employee if they need any and what they are in any situaiton. Not sure where Mental Health falls in the ADA though.
July 11th, 2008 at 11:17 am
Candidates with physical and other disabilities present a large problem for employers. But, after viewing his shuffling gait, etc, could you refuse to offer him and job? Could this employee proceed with a lawsuit claiming ADA discrimination?
A well written job discription for each position is your best defense.
And I agree with everyone regarding his supervisor’s insensitivity.
July 11th, 2008 at 11:24 am
It is difficult to determine in reading this story, where the disconnect occurred. I would like to see the job description posted, the application submitted and the supporting hiring recommendation. Who interviewed him, was HR involved in the process. Most job descriptions have a catch all phrase, able to perform all duties as described with or without accommodation. Both the applicant and the employer have a responsibity when conducting the interview to ask job related questions, specific to job expectations. Did anyone ask if the applicant had a copy of his most recent performance reveiw, or reason why he was no longer at his previous job. Was store volume, former and present taken into account during the interview.
Once hired, did the hiring manager conduct NEO and it appears that the immediate supervisor was not coaching, teaching or developing his new employee. It appears there was no communication between employee and supervisor. Again, a two way street.
Who made the decision to transfer the employee and why did the employee not challenge the transfer when it was suggested…, he was transfered a second time, same question and why did the receiving department not involve HR is the transfer. OR was HR the decision making authority making the transfer decisions.
I do not see HR involvement at all once the employee strated working. Both the employee and the department manager/supervisor should have discussed their concerns about the employee’s job performance as soon as a concern developed.
Too many common sense opportunities to address this matter, long before it became a complaint and ultimately a $900,000 lesson in basic human relations, “establishing and maintaining open lines of communications”, at all level of the organization, to include making sure that you communicate to new employees their need to ask questions, what to do if they cannot talk to their supervisor, establishing a 24/7 Confidential Hot line, where the employee can express their concerns, and as an aside, what has HR done to provide sensitivity training to this supervisor. The new employee may have had an excuse for why he did not access other venues to resolve his concerns, but what is that Supervisor’s excuse. Is he still representing Walmart in a management capacity? If so, the potential for future claims is still out there.
July 11th, 2008 at 11:52 am
Sus has the process right. ADA compliance requires a dialogue between employer and employee about what may be needed for the employee to perform the essential functions of the job. It cannot be based on the employers “guess”.
I strongly suggest that posters here with an interest in better understanding the subject go to the EEOC webpage below, which has can give you a basic grounding on Title 1 of the ADA.
http://www.eeoc.gov/facts/ada17.html
Note: I am an ADA consultant. My firm has worked on these issues for business and government since 1992.
July 11th, 2008 at 12:17 pm
There is a website that provides information and possible accommodations for many disabilities. It helps walk you through the process of accommodation. I have found it very useful in dealing with disabilities ranging from sensory (visual or hearing) problems to physical injuries/illnesses to psychological illnesses.
http://www.janweb.icdi.wvu.edu
July 11th, 2008 at 12:59 pm
There isn’t any doubt in my mind that the courts got this one 100% right! This employer was aware of the employee’s disability before they hired him for this job. They knew this job required matching customer names to prescriptions and moving about the store. The law clearly says the employer’s awareness of the disability required them to provide accommodations. To the best of my knowledge there are no devices or other accommodations to assist a disabled employee in moving about the store at a faster pace or matching labels accurately at a faster pace. Extra time to complete these tasks would have been a reasonable accommodation (perhaps THE only reasonable accommodation available). Additionally it also seems the employer failed to clearly convey to the employee what the problem was or that they expected him to work more quickly and more accurately when he worked more quickly. According to this article the employee had 2 years success doing the same type of work at another pharmacy. Perhaps this is because the other pharmacy accommodated his disability by letting him work slower (and be more accurate) and move about the store at a slower pace. As far as the court’s ruling, my feeling on this is that is is absolutely correct. Anyone, including individuals with disabilities would suffer emotionally when treated as if they can’t do what other people can. The bottom line is that the employer discriminated against the employee on the basis of his disability and discrimination isn’t allowed and there are penalities for those who do it.
July 11th, 2008 at 1:20 pm
It is illegal for employers to inquire about accomodations, before a position has been offered, hence, inquiring during an interview can result in a lawsuit. After a position has been offered to the candidate, then the employer should ask if; there’s an obvious disability, or if the candidate appears to have a disability (even if he doesn’t), those that are precieved to have a disability are also protected under the ADA, even if they do not actually have a disability.
July 11th, 2008 at 2:13 pm
Unfortunately, I beg to differ with Frank. It is not illegal to discuss accommodations, it is illegal to ask specifics about the disability. You can show any applicant the job description or discuss the job and physical requirements and ask the individual if they could perform the position with or without reasonable accommodations and/or ask them to demonstrate how they would perform certain tasks related to the job, or what type of accommodation might be necessary. It is ridiculous to think that an offer should be made before it is know whether the disability can to accommodated without creating an undue hardship (Obviously a deaf individual could not be a telephone operator, but a hearing impaired individual might be able to perform the duties with a phone with increased volume capabilities). This is such a difficult and complex issue, but some common sense will go a long way.
July 14th, 2008 at 10:44 am
I do feel sorry for the young man. And Wal-Mart was definitely in the wrong. And the supervisor should be canned. But $900,000 ………But I’m shocked that no one thinks that’s an excessive award!!!!!!!
July 14th, 2008 at 12:21 pm
One thing that hasn’t been addressed, I don’t think, in any of the comments. ADA very clearly addresses one aspect of this situation. A lower productivty level is NOT to considered a reasonable accommodation. Even though Walmart was aware that this person had a disability, if the employee was, in fact, not able to perform at an acceptable rate, they did not have to lower their criteria to accommodate him. That being said, arbitrarily transferring him without determining if this could be corrected, was not reasonable and certainly to put someone with a disability such as cerebral palsy out collecting carts is certainly questionable. However, Walmart does have an internal process for dealing with issues and it also doesn’t appear that the employee took advantage of that process. A $900,000 award to someone who worked such a short time does seem excessive, however. All that being said, however, why would HR not have been aware of the transferring from department to department of a new employee? And that being said, why would HR not have intervened at some point, or at least taken the initiative to try and find out what was going on?
July 16th, 2008 at 3:50 pm
I think the judgment was fair. It sends a message to large companies to think before they act. From the article, it seems evident that at no time did the Wall Mart Manager make any attempt to communicate with this individual, who obviously sensed that something was wrong. Making an employee’s job more difficult in the hopes that the employee will simply quit or go away, is not the way to go about resolving any employee issues, and I believe it was Wall Mart’s biggest mistake when they assumed Patrick Brady would simply go away. There’s obviously a major breakdown in communication. This speaks volumes about the Manager and the policies in place there. Addressing an ADA issue can be a sticky situation, but I think when approached with decorum and a genuine interest in assisting an employee to fully understand their duties and responsibilities, it can benefit all. Something tells me that the Manager in question is probably no longer with Wall Mart either.
August 21st, 2008 at 1:46 pm
Often times the HR department is privied to information that management would not have access to due to confidentiality/HIPPA. It does not sound like this supervisor consulted HR prior to making this move. I must agree that is does not seem right for management to approach an obviously disabled employee about commendations. Often times people with disabilities want to be treated like every else. However, by consulting with HR I think the supervisor should have been able to address the performance issue without bruising the ego of this professional employee by moving him to another department not related to his background. A simple discussion could have resulted in the company providing reasonable accommendations to help him be successful in the position he applied for.
August 26th, 2008 at 2:21 pm
The State of Indiana has no laws making it illegal to conduct applicant drug screening tests so long as employers have a comprehensive written policy outlining testing procedures and consequences of policy violations provided this policy is uniformly and consistently applied. Also, in Indiana, there is no restriction upon a private employer form engaging in any form of drug testing. Under the ADA, certain tests are not considered medical examinations, such as tests to determine the illegal use of drugs.