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Wednesday, July 16, 2008

Duty to reasonably accommodate obvious disabilities

Brady v. Wal-Mart Stores (2nd Cir. 7/2/08) asks whether an employer can ignore an employee's obvious disability when making employment decisions about that employee.

Patrick Brady has cerebral palsy, which very obviously manifested itself in his mannerisms. One trial witness testified: "Just by looking at him, you could tell he had a disability."

He applied for a part-time job at his local Walmart in its pharmacy department. He very quickly observed that his boss, Yem Hung Chin, was unhappy with his performance. He testified that "she was kind of short with me. At trial, Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers' names with their prescriptions. She thought Brady's performance was "absolutely awful,"and she "wanted [him] away from [her] prescriptions." Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.

After his first week of work, Walmart transferred Brady to collect shopping carts in the parking lot. After learning that Brady was unhappy with his new position, the store manager transferred him again, this time to stock grocery shelves. Frustrated, Brady quit and sued Walmart for disability discrimination. The jury returned a substantial verdict in his favor.

One of the issues on appeal is whether an employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. The court held that "an employer has a duty reasonably to 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:

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.

Thus, if an employer knows of should know that an employee is disabled, the employer has a duty to engage in an interactive process with that employee to assess whether the disability can be reasonably accommodated.

For employers, the lesson is that one cannot turn a blind eye to an employee's obvious disability. Next week, we'll take a deeper look at the interactive process: what it means, how it is supposed to be carried out, and the risks inherent in ignoring it.

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