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:
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
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.