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In a relatively quick resolution, the EEOC and Lowe’s Home Improvement entered into a three-year consent decree involving its store in Cleburne, Texas. This $55,000 settlement reminds every reasonable accommodation program manager of the need to sign-off on pending adverse employment decisions initiated by line supervisors.

5 Potential Reasonable Accommodation Red Flags

When reviewing a pending adverse employment decision under ADA Title I, listen for these alarm bells:

  • Suggested withdrawal of an in-place accommodation
  • Modification of an accommodation due to a perceived change in the solution’s reasonableness
  • Removal of an accommodation based on a reported difference in the incumbent’s physical or cognitive ability
  • Questioning the need to continue an accommodation when job tasks or production methods change
  • Ignoring the ’employer should have known’ concept

2 Indicators of Your Diligence

  • Acknowledgement and documentation (a note in the file?) of the incumbent’s demonstrated ability to execute the essential functions of the position with or without accommodation (He’s doing his job!)
  • Observation that the delegation of tasks to others may change the task from ‘essential’ to ‘marginal’ and thus a less defendable trigger for demotion or termination
  • Your insistence that all parties engage in a high-level interactive conversation about the accommodated individual’s employment situation (avoid unnecessary adverse employment actions) (demonstrate your fidelity to the spirit of the law)

Learning from the Lowe’s Settlement

According to a news release about the case, the employee in question was hired by Lowe’s as a customer service associate in 2006 and promoted to a department manager in 2008.The company was aware of his disability which triggered the “employer should have known” concept (emphasis added) when he became a department manager. He successfully worked as a department manager for six years providing evidence of ability to execute the essential functions of his position with or without accommodation (emphasis added). The employee’s disability prevented him from using power equipment that requires the use of two hands, but he delegated that task to associates under his supervision indicating the reasonableness of the in-place accommodation and potentially reclassifying the duty as a marginal function (emphasis added). The EEOC’s lawsuit claimed that in June 2015, Lowe’s notified the employee that he could no longer be provided with a reasonable accommodation and demoted him to a non-supervisory associate position. Hense the adverse employment decision referred to as ‘withdrawal of an in-place reasonable accommodation’ (emphasis added). As a result of the demotion, his hourly rate of pay was cut by more than $4 an hour.”

The EEOC alleged in its suit that the company’s refusal to accommodate the department manager, a qualified individual with a disability, and subsequent decision to demote him to a lower-paying position violated the Americans with Disabilities Act (ADA). The EEOC sued in U.S. District Court for the Northern District of Texas, Dallas Division (Civil Action No. 4:17-CV-02589-M) after first attempting to reach a pre-litigation settlement through its conciliation process.

Conclusion

The frequency of this type of action and the apparent ease with which a $55,000 settlement arrived at begs for our attention. Manageable settlements are expensive! Reasonable accommodation program managers, risk managers, and human resource professionals must protect their companies by recognizing this case as an ADA Title I best practice lesson.

Resources

U.S. District Court for the Northern District of Texas, (Equal Employment Opportunity Commission v. Lowe’s Companies, Inc., Civil Action No. 4:17CV02589M)

U.S. District Court for the Western District of Pennsylvania, (Albert Gucker v. U.S. Steel Corp., Civil Action No. 13-583)

 

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