Vindication
TXHRGuy
1,586 Posts
From time to time, we have had ADA issues come up in which I have advised the conservative route in terms of taking proactive steps to accomodate someone under ADA who has not specifically requested any accomodation but whose disability was apparent and linked to work performance. The conservative route would have helped Wal-Mart in the second circuit when they lost a case on just that point:
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Brady sued the employer, asserting (among other things) disability discrimination (disparate treatment, hostile work environment, and failure to reasonably accommodate) claims under the Americans with Disabilities Act (ADA) and state law. Brady prevailed in substantial part after a jury trial, and accepted remittitur. The 2nd Circuit affirmed.
Brady suffered from cerebral palsy. Moreover, there was evidence on the record that it was readily apparent that he suffered from a disability. However, Brady never requested an accommodation and in fact testified that he didn't think he needed one. The 2nd Circuit has previously held that "[g]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." Prior to this case, the 2nd Circuit had not been presented with an opportunity to consider when that general rule might be inapplicable. Taking advantage of that opportunity here, the court held "an employer has a duty to reasonably accommodate an employee's disability if the disability is obvious - which is to say, if the employer knew or reasonably should have known that the employee was disabled." The court noted that its approach "is consistent with the statutory and regulatory language, which speaks of accommodating 'known' disabilities, not just disabilities for which an accommodation has been requested."
Brady v. Wal-Mart Stores
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From the opinion:
[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir .2006) (emphasis added) (internal quotation marks omitted). Over the defense's objections, Judge Orenstein charged the jury that, if "Wal-Mart knew or had reason to know that Mr. Brady had a disability, or perceived that made it difficult [sic ] to perform his job as a sales associate in the pharmacy, or perceived that he had such a disability," then it had an obligation to offer a reasonable accommodation.
[...]
But what does accommodation mean, if the employee does not request specific accommodation? We have held that the ADA contemplates that employers will engage in "an ‘interactive process' [with their employees and in that way] work together to assess whether an employee's disability can be reasonably accommodated."Jackan v. N.Y. State Dep't of Labor, 205 F.3d 562, 566 (2d Cir.2000). In this case, it was reasonable for the jury to find that Brady was disabled and/or that Appellants perceived him to be disabled. Accordingly, Wal-Mart was obligated to engage in the aforementioned interactive process. Wal-Mart failed to engage in this process, and therefore the district court was correct in declining to grant judgment as a matter of law on the failure to accommodate claim.
Comments
I just read that brief yesterday interestingly enough. I do agree this might lead to forcing employers to be more proactive, especially when pulling the "we didn't know about the disability" card. But it is skewing the line on "perceived disabilities" vs true disabilities. Employers are afraid of assuming a disability that does not exist. But I do agree that common sense should prevail. If 12 jurors could see it, then Wal-Mart should have also.
My only other real concern is the fact that Brady himself didn't feel like he need an accommodation. How does an employer accommodate an employee who doesn't feel the need for accommodations?
If you read through the whole brief, it appalls me on what the Wal-Mart pharmicist actually said and how he was treated. Not a good portayal of Wal-Mart at all....regardless of whether they should have known he was disabled or not., they treated him abominably. Hope they have that pharmacist out in the parking lot collecting a few carts these days.
Do you have a link to the brief? I would be interested in reading the entire thing as well. If the person involved didn't feel like he needed an accommodation then why was this even an issue? I guess I need to read the whole thing to better understand.
I think, no matter what, ADA is tough. Anytime I have ever thought I was dealing with a potential ADA situation I got the attorneys involved. You don't want to preceive a disability but then again you want to make sure you are doing the right thing for an employee.
[quote user="HRforME"] My only other real concern is the fact that Brady himself didn't feel like he need an accommodation. How does an employer accommodate an employee who doesn't feel the need for accommodations?[/quote]
The suit is actually much larger than just the failure to accomodate. Part of the problem is that Wal-Mart was obligated under previous actions to make their job descriptions and so forth more ADA friendly. The Pharmacy assistant job that Brady was hired to do involved receiving prescriptions and distributing prescriptions and iirc filling prescriptions. However, Wal-Mart's job description for the pharmacy assistant role was the same as the general floor sales role, which included things like going up a ladder with a 50 Lbs. load and he may have actually struggled with that or other aspects of the jobs he was given when the pharmacy manager chucked him out of the job he was hired to do. She did treat him horribly and Wal-Mart's failure to identify her as a problem case early on and address her is why they landed in court. She insisted that Brady would get them sued by making mistakes on prescriptions despite the fact that Brady never did make a prescription mistake at Wal-Mart or at his prior employer where he did the same work for 2 years prior to taking a job with Wal-Mart.
[quote user="IT HR"] Do you have a link to the brief? I would be interested in reading the entire thing as well. If the person involved didn't feel like he needed an accommodation then why was this even an issue? I guess I need to read the whole thing to better understand.[/quote]
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTU0ODYtY3Zfb3BuLnBkZg==/06-5486-cv_opn.pdf