Reprinted with permission from CPER No. 206 online (June 2012). Copyright by the Regents, University of California. The California Public Employee Relations Program (CPER) provides nonpartisan information to those involved in employer-employee relations in the public sector. To see a sample of the journal, subscribe, or get more information about CPER publications visit http://cper.berkeley.edu.
The Americans with Disabilities Act of 1990 prohibits private and public agency employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Although the ADA has been in existence for over 20 years, disability discrimination persists.
In 2010, approximately 25 percent of the accusations or complaints filed by the California Department of Fair Employment and Housing against employers were for disability discrimination. This category ranked a close second only to sexual harassment, which comprised approximately 29 percent of the accusations filed by the DFEH. Since last fall, the U.S. Equal Employment Opportunity Commission has filed over three dozen lawsuits against employers around the nation for disability discrimination. And, these statistics do not include the countless civil lawsuits against employers filed by individuals who claim they were discriminated, harassed, or retaliated against because of a disability.
The numbers make apparent that there is still much to be learned about complying with ADA obligations when working with an employee with a disability. Unfortunately, there are no easy answers, "quick fixes," or black and white guidelines because disability discrimination comes in many forms and is not always clearly recognizable. However, there are lessons to be learned from analyzing disability discrimination lawsuits filed by the EEOC in the last several months.
Don't Jump to Conclusions….Look for Solutions
A review of EEOC lawsuits shows how employers sometimes overreact or become fearful when confronted with a disabled employee. An employer's first thoughts may be on the welfare of the business as opposed the employee's well-being and legal rights. However, fear can cause an employer's judgment to become clouded which, in turn, may cause the employer to jump to conclusions or make snap decisions. Thus, employers should learn to remain calm and spend time exploring possible solutions for keeping the disabled worker employed instead of taking an adverse action against them. Efforts should be channeled into looking for ways to keep the worker employed…not for a way to terminate.
The following example of an EEOC lawsuit against a national healthcare company shows the danger of assuming an employee should be terminated after a single manifestation of her disability. Before being hired as a field nurse at a healthcare company, an employee informed her employer that she had had one seizure. After she got the job, the employee performed well and was even promoted. However, two months after her promotion, the employee had a seizure at work. Although her physician released her to return to work, the employer claimed that the seizures made her a "liability" to the company and terminated her employment. The EEOC criticized the company's actions and said this lawsuit should serve as a reminder to employers to not make employment decisions based on negative stereotypes or fears about individuals with disabilities.
Avoid Forming Personal Opinions
Employers should not act on personal judgments as to whether an employee is medically or physically able to perform the essential functions of the job. Several of the lawsuits filed by the EEOC involved this type of discriminatory behavior. For example, the EEOC filed a lawsuit against Buy-Rite Thrift Store for firing 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 [the employee] was a danger to himself and others." Instead, it should have requested the employee "take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position."
In another instance, the EEOC sued a global consulting company for failing to promote an employee it perceived as disabled. One day after the employee applied for a promotion, she had a stroke and was out of work for approximately three months. The employee returned with a medical clearance and told her employer that she would need physical therapy "at some point." Later that day, the employee was notified that, although she was qualified for the promotion, she was not selected because, despite her assurances to the contrary, her need for physical therapy could cause her to miss mandatory training.
Finally, the EEOC filed a lawsuit against Safeway, Inc., when one of its stores discouraged an employee from applying for a promotion. When the employee, who has cerebral palsy and physical limitations in both hands, expressed an interest in advancing within the company, his supervisor repeatedly told him he needed two hands to be promoted. The EEOC criticized all of the employers in the above cases because they preemptively rejected qualified employees based on myths, stereotypes, and inaccurate perceptions about the employees' disabilities.
The lesson learned from these lawsuits is that if there is a valid question as to the employee's abilities, the employer should request that the employee take a fitness-for duty-exam or provide medical documentation certifying fitness ― if the concern is job-related and consistent with business necessity. Courts have upheld a public employer's right to conduct fitness-for-duty examinations. When health problems have a "substantial and injurious impact on an employee's performance," the employer can require the employee to undergo a physical examination to determine the ability to work even if the examination might disclose a disability or the extent of the employee's disability. The rationale behind this is the government's interest in operating as effectively and efficiently as it can through a productive and stable workforce, which is expected from the citizens the agency serves.
An employee should not be required 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 his or her job. This conduct can include excessive absenteeism, declining job performance, or erratic behavior.
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, the EEOC filed a case against Walgreens Drug Store for failing to accommodate, and firing, a diabetic employee who was a cashier in the company's South San Francisco store. The employee, who had 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 bag cost less than two dollars and the employee paid for it. The company fired her after it learned of the incident although it knew she was diabetic. Walgreens could have avoided the lawsuit if it had accommodated the diabetic employee immediately by simply allowing her to eat the chips and take a break long enough to raise her blood sugar level.
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 her to take restroom breaks as necessary by having another employee cover her position. However, during one particular shift, the employee's new supervisor did not allow her to leave her post 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. Albertsons 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 successful accommodation. 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."
The Interactive Process Is an Ongoing Duty
Employers should recognize that working with a disabled employee can be a long-term process which might continue through the employee's tenure. This is because the interactive process imposes a continuing obligation on the employer to consider alternative accommodations if a presently implemented accommodation is ineffective. Therefore, an employer should not be complaisant simply because it has engaged in the interactive process and has provided a reasonable accommodation.
For example, the food company Dole was sued by the EEOC for failing to accommodate an employee's disability. An employee with epilepsy worked as a broccoli packer in Dole's Salinas, California, facility. For eight years, Dole accommodated the employee's condition by allowing him to take breaks when he had a seizure and to return to work when he recovered. However, following a seizure in 2010, the employee was sent home and not permitted to return to work for two weeks despite several notes from a physician clearing the return. The EEOC criticized Dole's conduct because it should have continued to accommodate the employee's disability based on its own past practice and the doctor's notes.
If the interactive process yields no reasonable accommodation, then the employer may separate the employee because of an inability to accommodate. However, before this decision is reached, all options must be considered and assessed. This may require the employer to consult with its legal counsel. If an employee has a property interest in continued employment, the employer cannot separate the employee without affording him or her pre-disciplinary due process. Further, if the employee works for a public agency, the employer cannot separate an employee who is vested in the agency's retirement system (e.g., CalPERS) without first applying for a disability retirement. Thus, no final notice of termination should issue until a decision has been made regarding the employee's eligibility for a disability retirement.
Reasonable Accommodations Can Come in Many Forms
"Reasonable accommodation" is defined as any change in the work environment or way things are customarily done that enables an employee with a disability to enjoy equal employment opportunities. In light of this definition and because the interactive process is designed to be flexible, reasonable accommodations can take many forms, and there are numerous ways for employers to accommodate employees with disabilities.
For example, the EEOC filed a disability discrimination case against Wal-Mart because a store failed to accommodate a disabled employee by allowing him to park his personal vehicle closer to the store. The EEOC also sued a billing and collections agency for terminating an employee rather than accommodating her request for a three-week extension of her medical leave. Finally, AT&T was sued by the EEOC for failing to accommodate an employee who was losing his vision due to diabetes by not purchasing software that allows visually impaired people to use computers.
These cases demonstrate the variety of ways an employer might be expected to accommodate an employee with a disability. Other examples of reasonable accommodation include, but are not limited to, modifying a workplace policy, job restructuring, providing a job coach, modifying work schedules, reassignment, and applying flexible leaves.
Determining whether a type of reasonable accommodation is appropriate is not a mechanical process because there is no such thing as "one size fits all" when it comes to accommodations. Rather, reasonable accommodations should be determined on a case-by-case basis depending on the nature of the employee's disability and his or her essential job duties.
Exercise Caution When Changing Working Conditions
The disability discrimination lawsuits filed by the EEOC show that employers should proceed with care when altering the work conditions of an employee with a disability.
The EEOC filed a lawsuit against Merritt Restaurant and Bakery, an Oakland, California, 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. According to the EEOC, the employee complained about the change and was fired.
In another case, the owner of a McDonald's was sued by the EEOC for demoting and causing the constructive discharge of an employee with cerebral palsy. The employee had worked for the prior owner since 2006 without incident. In fact, the employee had been promoted to a supervisory position. Within two months of new ownership in 2009, the employee was demoted to a janitorial position, with reduced hours and pay. The EEOC alleged that the employee was forced to quit his job as a result of the company's treatment.
The lesson is that, before initiating a change, employers should evaluate the reasons for changing the working conditions of a disabled employee to make sure it is for legitimate non-discriminatory business purpose. And, as discussed above, employers should refrain from making employment decisions based on personal opinions about whether the employee can perform the job.
Generalized Fears About Health and Safety Are Insufficient
The EEOC sued a beverage distribution company for disability discrimination in connection with the company's withdrawal of a job offer. An employee whose job was eliminated applied for another position within the company as a night warehouse loader. The company offered the employee the position subject to a pre-employment medical examination. Following the examination, the employer withdrew the offer because it believed the employee could not safely perform the job due to his poor eyesight. According to the EEOC, the job involved loading alcohol on the back of trucks, a task the employee could safely perform despite being legally blind.
In another lawsuit, the EEOC sued a restaurant for terminating an employee with a prosthetic leg. After successfully working as a kitchen helper without incident for one shift, the employee was told by his manager that he was being fired because his prosthetic leg posed a safety hazard for the company. The employer apparently concluded that the employee posed a danger based on sheer speculation.
These lawsuits show that generalized fears about threats to health and safety are not sufficient justification to alter employment conditions or fail to accommodate a qualified employee with a disability. Under the law, an employer is not obligated to hire, employ, or accommodate a disabled employee if he or she poses a direct threat to the health and safety of him/herself or other individuals in the workplace. A "direct threat" is a significant risk to the health and safety of the disabled individual or others that cannot be eliminated with a reasonable accommodation.
Determining whether an individual possesses a significant risk to others must be based on (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential problem. Employers should evaluate these factors objectively and with factual evidence, and not rely on fears, stereotypes or speculation.
Mere Inconvenience Does Not Constitute an Undue Burden
No accommodation is required if it will impose an undue hardship on the employer. However, inconvenience is not enough to support a claim of undue hardship. Instead, undue hardship is any action requiring significant difficulty or expense as measured by the following factors:
An analysis of these factors should be based on an individualized assessment of the employee's disability, job duties, and working conditions. Further, if one particular reasonable accommodation would cause undue hardship but a second type would be effective and workable, the employer is obligated to provide the second accommodation.
Eliminating disability discrimination in the workplace is one of the hallmarks of employment law. Employers do not have to be fearful when dealing with employees with disabilities. While lawsuits like those filed by the EEOC are not pleasant, employers can empower themselves by reviewing them and learning from the mistakes of others.
Elizabeth Tom Arce is an associate with Liebert Cassidy Whitmore in the firm's Los Angeles office, providing representation and legal counsel to clients in all matters pertaining to labor, employment, and education law. Ms. Arce is also a contributor to the firm's California Public Agency Labor & Employment Blog.
 See 42 USC Sec. 12112.
 EEOC v. LHC Group Inc. (S.D. Miss. 2011) U.S. Dist. Ct. Case No. 1:11-cv-00355.
 EEOC Press Release dated September 28, 2011, "EEOC Charges LHC Group/Gulf Cost Homecare with Disability Discrimination."
 EEOC v. BRT Management Company, Inc. dba Buy-Rite Thrift Store and W. & J. Capitol and Mgt. Co., Inc. d/b/a Buy Rite Thrift Store (N.D. Cal. 2011) U.S. Dist. Ct. Case No. CV 11-4536-HRL. The employer settled the case for $50,000.
 EEOC v. Maximus, Inc. (E.D. Va. 2011) U.S. Dist. Ct. Case No. 1:11-cv-1022.
 EEOC Press Release dated September 30, 2011, "Safeway Sued for Disability Discrimination."
 EEOC Press Release dated September 21, 2011, "Maximus, Inc., Sued by EEOC for Disability Discrimination;" EEOC Press Release dated September 30, 2011, "Safeway Sued for Disability Discrimination;" and EEOC Press Release dated February 7, 2012, "Modesto Retailer Settles Disability Discrimination Suit."
 42 USC Sec. 12112(d)(4)(A); 29 CFR Sec. 1630.14(c).
 Yin v. California (9th Cir. 1996) 95 F.3d 864, 868-873, 123 CPER 70.
 EEOC v. Walgreens Co. (N.D. Cal. 2011) U.S. Dist. Ct. Case No. 11-cv-4470.
 A.M. v. Albertsons, Inc. (2009) 178 Cal.App.4th 455, 197 CPER 57.
 Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001). 239 F.3d 1128, 1138, 147 CPER 52.
 EEOC v. Dole Fresh Vegetable, Inc. (N.D. Cal. 2011) U.S. Dist. Ct. Case No. 11-cv-4827.
 EEOC Press Release dated September 30, 2011, "Dole Sued by EEOC for Disability Discrimination."
 Gov. Code Secs. 21153 and 31721.
 29 CFR Sec. 1630.2(o).
 EEOC v. Wal-Mart Stores, Inc. (E.D. Cal. 2011) U.S. Dist. Ct. Case No. 11-AT-01806.
 EEOC v. GGNSC Administrative Service, Inc. (E.D. Wis. 2012) U.S. Dist. Ct. Case No. 12-cv-00238.
 EEOC v. AT&T, Inc. (Puerto Rico 2011) U.S. Dist. Ct. Case No. 11-cv-019.
 EEOC v. McKinney Griff, Inc. dba Merritt Restaurant and Bakery (N.D. Cal. 2011) U.S. Dist. Ct. Case No. 11-cv-4468.
 EEOC v. Alia Corp. d/b/a McDonald's (E.D. Cal. 2011) U.S. Dist. Ct. Case No. 11-cv-01549.
 EEOC v. Beverage Distributors Co. (Colo. 2011) U.S. Dist. Ct. Case No. 11-cv-02557.
 EEOC v. Lang's Marina Restaurant (S.D. Ga. 2011) U.S. Dist. Ct. Case No. 11-cv-00157.
 42 USC Sec. 12101(8).
 Hutton v. Elf Atochem North America, Inc. (9th Cir. 2001) 273 F.3d 884, 893.
 29 CFR Sec.1630.2(p).
 29 CFR Sec.1630.2(p).
 See EEOC Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.