Wednesday, August 8, 2018

Juicing the reasonable accommodation low-hanging fruit



Would you rather spend seven figures to lose a lawsuit, or $1.69 to allow a diabetic employee to drink a bottle of orange juice?

The answer should be pretty clear.

Or maybe not?

Linda Atkins, a former cashier at Dollar General, is a type II diabetic. She occasionally suffers from low blood sugar, to which she must quickly respond by consuming glucose to avoid the risk of seizing or passing out. When she asked her manager if she could keep orange juice at her register in case of an emergency, he refused, citing the store's "Personal Appearance" policy (which prohibits employees from eating or drinking at registers).

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes. Because she worked alone and did not want to leave her register unattended, she took at bottle of orange juice from the store's cooler and paid for it after the fact.

Shortly thereafter, a Dollar General Loss Prevention Manager audited the store to address employee theft and other merchandise "shrinkage" issues. Atkins admitted to drinking orange juice twice before paying for it because of a medical emergency. She was then fired for violating the employer's "grazing" policy, which prohibits employees from consuming merchandise before paying for it.

The EEOC sued on behalf of Atkins, claiming that her ex-employer failed to reasonably accommodate her and discriminated against her because of her disability.

On appeal, the 6th Circuit had little difficulty concluding that the jury correctly found in favor of Atkins on her reasonable accommodation claim:

When she asked her store manager if she could keep orange juice at her register because of her diabetic condition, the manager told her "it's against company policy" and to "[b]e careful of the cameras." Once Atkins requested this reasonable accommodation, the employer had a duty to explore the nature of the employee's limitations, if and how those limitations affected her work, and what types of accommodations could be made.… But that's not what it did. The store manager categorically denied Atkins' request, failed to explore any alternatives, and never relayed the matter to a superior.

And on her discrimination claim:

A company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him. Imagine a school that lacked an elevator to accommodate a teacher with mobility problems. It could not refuse to assign him to classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would have had a reason to buy the store's orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution. Happily for us, doctrine lines up with common sense.

This legal and common-sense error cost the employer a judgment of nearly $725,000 (which includes almost $450,000 in the claimant's attorneys' fees, and does not include what it paid its own legal team to fight this absurd fight). The bottle of OJ at issue was worth $1.69 (plus tax). Which is the better economic decision?

* Photo by Piotr Chrobot on Unsplash
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