An employee insists he got demoted because of his disability.  His boss says it was all about performance, not disability. Who won this real-life legal case?

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

Tags: Brady v. Wal-Mart Stores, disability