Recent EEOC Disability Discrimination Lawsuits Are A Reminder To Employers To Comply With The ADA

Law360, New York (December 9, 2011) -- In recent months, the U.S. Equal Employment Opportunity Commission ("EEOC") has filed over a dozen lawsuits against employers for disability discrimination. Several of these lawsuits were filed against companies who do business in California and address various facets of disability discrimination.

One of the cases was filed against Walgreens drug store for failing to accommodate and for firing a diabetic employee who was cashier in the company's South San Francisco store. The employee, who worked for Walgreens for nearly 18 years without a blemish in her work history, opened a bag of chips while on duty because she was suffering from an attack of low blood sugar. The chips cost less than two dollars and the employee paid for it. The EEOC alleges that the company fired her after it learned of the incident although it knew the employee was diabetic.

The EEOC also filed a lawsuit against Merritt Restaurant and Bakery, an Oakland eatery, for firing an employee who suffered from seizures. The employee, a cook and kitchen manager, had a seizure during the night shift. Although the employee's physician cleared him to return to work, the employer delayed his reinstatement and transferred him to the day shift which resulted in fewer work hours and less pay. The employee complained about the change in his work conditions and was fired.

Modesto retailer Buy-Rite Thrift Store fired an epileptic employee after he had small seizures at work. The EEOC alleges that the company improperly "relied on its own judgment – which is not consistent with the law – to determine that [the employee] was a danger to himself and others" instead of asking the employee to "take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position."

The owner of a McDonald's in Oakhurst was sued by the EEOC for demoting and causing the constructive discharge of an employee with cerebral palsy. The employee had worked for a prior owner since 2006 without incident. In fact, the employee had been promoted to a supervisory position. Within two months of new ownership taking over the McDonald's operations in 2009, the employee was demoted to a janitorial position. They also cut his hours and reduced his pay. The EEOC alleges that the employee was forced to quit his job as a result of the company's treatment of him.

Finally, the EEOC filed lawsuits against grocery retailer Safeway for failing to promote an employee because of his disability and All Star Marketing, a vacuum distributor, for firing a new hire for the same reason. Safeway's store in Carmel employed a clerk with cerebral palsy which limited his use of one hand. When the employee told his supervisor he wanted to promote, the employee was repeatedly told he needed both hands to perform the jobs he wanted and was passed over for promotion by less qualified employees. In the lawsuit against Fresno company All Star Marketing, an employee successfully interviewed in person for a sales position and was told by the recruiting manager that he could start training and orientation the following Monday. On his first day of work, the same manager noticed a deformity with the employee's left hand and questioned whether he could demonstrate the vacuums he was required to sell. Ultimately, the manager asked the employee to leave and apologized for asking him to report to work.

While it is too early to know whether these employers will vigorously defend their actions, these lawsuits demonstrate that disability discrimination can come in many forms. Important lessons can also be learned from these cases.

First, employers should refrain from forming their own opinions on whether an employee is medically or physically able to perform the essential functions of the job. If there is a valid question as to the employee's abilities, the employer should ask the employee to take a fitness for duty exam or provide medical documentation certifying fitness if it is job related and consistent with business necessity. Thus, a good practice is not to require an employee to undergo a fitness for duty exam unless the employer has specific evidence that the employee is having difficulty performing one or more essential job duties or exhibits behavior that could cause a reasonable person to question the employee's ability to perform their job. This conduct can include excessive absenteeism, declining job performance or erratic behavior.

Second, employers must be flexible in accommodating disabled employees. This may mean providing accommodations if the employee experiences symptoms related to his or her disability in the workplace. For example, Walgreens could have accommodated the diabetic employee immediately by simply allowing her to eat the chips and take a break long enough to allow her to raise her blood sugar.

Flexibility can also include making facilities such as break rooms, lunch rooms, training rooms and restrooms immediately available to employees. Two years ago, the California Court of Appeal upheld a $200,000 judgment against grocery retailer Albertsons for not allowing an employee to use the restroom. The employee told Albertsons she needed access to the bathroom at all times because of the large amounts of water she was drinking as a result of cancer treatments. For the next year, Albertsons allowed the employee to take restroom breaks when necessary by having another employee cover her position. However, during one particular shift, the employee's new supervisor did not allow her to take a break despite repeated requests. As a result, the employee soiled herself while standing at the check stand. The supervisor was unaware of the employee's medical condition. Albertson's argued that it should not be liable for failing to accommodate the employee because the event was only a single incident in a long history of successfully accommodating the employee. However, the appellate court rejected this argument because "a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated."

Finally, if an employer wants to change the working conditions of a disabled employee, the employer should evaluate the reasons for the change to make sure it is for legitimate non-discriminatory business reasons.

--By Elizabeth T. Arce, Liebert Cassidy Whitmore

Elizabeth T. Arce is an Associate in the Los Angeles office of Liebert Cassidy Whitmore. The firm represents public entities in labor and employment law matters and educational institutions as general and special counsel.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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