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.
