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Colorado and Tennessee Tie for Failure to Accommodate

Walmart Notches Largest Settlement

Failure to provide reasonable accommodation to a prospective, conditional, or current employee under Title 1 of the Americans with Disabilities Act emanates from a short list of possible missteps. Training line managers and executives to recognize a request for accommodation is the first step in avoiding significant settlements.

Here are a few examples of federal-level settlements and new suits filed this Fall:

Colorado – The Application Process

Potential employees of Colorado-based DISH Network claimed they were denied an opportunity for employment due to an alleged discriminatory online application process. As a result of a conciliation process between the company and the EEOC, DISH agreed to pay $1,250,000 to compensate the original complainant and other aggrieved applicants. In the tight labor market, engaging in the interactive reasonable accommodation process may have prevented the charge while enlarging the pool of qualified individuals available to DISH.

Colorado – Failure to Engage in the Interactive Process with a Qualified Individual

Carefree of Colorado, which manufactures and sells RV awnings violated federal law when it refused to hire a candidate because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed yesterday.

According to the EEOC’s suit, Broomfield-based Carefree refused to hire Anna Biryukova for two open positions, assembler and packer. Biryukova, who is deaf, had previous manufacturing experience and was qualified for both positions. Carefree refused to hire Biryukova after expressing concerns her disability could be a “challenge” and present “safety issues.” Carefree also told a job developer representing Biryukova she could not work for the company because she is deaf.

Carefree also retaliated against Biryukova by refusing to consider her for future open positions because she and the job developer complained about discrimination and requested an accommodation.

§12111. Definitions — (8) “The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”

Wisconsin – New Manager

A Wisconsin jury determined October 10, 2019 that Walmart violated a federal law by refusing to accommodate a longtime employee who had disabilities.

The lawsuit stated that a Walmart cart pusher who has a developmental disability, is deaf and visually impaired, had worked at a Beloit, Wis., Walmart for 16 years.

After a new manager started at the store, the employee was suspended and later forced to resubmit medical paperwork to keep his reasonable accommodations at his job.

Before the suspension, the employee performed his duties with the help of a job coach provided through public funding. The suit states the employee’s conditions had not changed.

The EEOC said when the employee and his legal guardian submitted the requested paperwork, the store cut off communication with him and effectively terminated him.

After a just over three-day trial, the jury found in favor of the EEOC and awarded the former Walmart worker $200,000 in compensatory damages and $5 million in punitive damages.

Tennessee – Failure to Reassign

An EEOC lawsuit claims that Clarksville Health System, G.P. d/b/a Tennova Healthcare – Clarksville (Tennova), operating a hospital in Clarksville, Tenn., violated federal civil rights laws when it denied a registered nurse a reasonable accommodation for her disability and fired her.

According to the EEOC’s lawsuit, the nurse suffered an on-the-job injury to her knee.  After surgery and recovery, her doctor placed her on permanent restrictions of intermittent sedentary activity for a third of the day. Tennova refused to allow the employee to continue working as a nurse.  Instead, Tennova gave her ten days to find another job at its hospital before it fired her.  Despite having vacant jobs in the workplace for which the nurse qualified, Tennova failed to reassign the nurse to the positions as a reasonable accommodation. Rather, Tennova required the nurse to apply and interview for the positions and declined to hire her. After Tennova fired the nurse, Tennova offered her a registrar job that paid one third of what the nursing position paid.

Tennessee – Failure to Engage in the Interactive Process; Destruction of Records

Fourteen Foods, LLC d/b/a Dairy Queen Brazier is being sued by EEOC for disability discrimination. The EEOC alleges that an applicant who had worked for a predecessor company at the same location for approximately two years applied for employment after a new owner took control of the operation. During the interview process, a company official told the applicant that he must wear a hat or a visor.  When the applicant said he could not do so because he wears a cochlear implant, the company required that he produce a medical statement from his doctor and a statement from the health department.  Although the applicant obtained the necessary medical information from his doctor and provided information from the local health department, the company official would not accept the information and refused to call the health department to confirm the applicant’s information. The company destroyed his application and refused to hire him.

Commentary

Looking at the Carefree case described above, the reasonable accommodation interactive process was designed with this type of individual in mind! We have an otherwise qualified individual potentially in need of an accommodation. Carefree may have on staff a trained ergonomic evaluator; they may have a relationship with a local occupational therapist trained in the accommodation solution process. And the taxpayer funded https://askjan.org is ready to respond with assistance and resources.

Further, concerns about safety are real! A standard approach to these concerns is to retain an ergonomic evaluator or to contact the local chapter of the National Safety Council.

Remember that an unrecognized need or clear request for a reasonable accommodation may lead to damages to a company in monetary terms and in not expanding its team by hiring a motivated qualified individual.

 

Contact Roy Matheson by phone or email10/17/2019

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