What exactly Is The Interactive Process For Disabled Employees.
Employment Discrimination Attorney Answer: Can my employer take away my disability
accommodation? Is my manager allowed to ask me to resubmit my accommodation
sheet relating to my disability? Can I be fired because of my disability?
The Americans with Disabilities Act (“ADA”) makes it illegal for your employer to discriminate against an employee because of that worker’s disability or perceived disability. The ADA requires an employer to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … unless [the employer] can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. 12112(b)(5)(A). The ADA defines “disability” as:
- a physical or mental impairment that substantially limits one
or more of the major life activities of such individual;
- a record of such impairment; or
- being regarded as having such an impairment.
42 U.S.C. § 12102(2). This means that even if a person does not consider themselves disabled, if their boss perceives them as disabled, there may still be a claim under the ADA. What does this look like? Sometimes bosses show their prejudice against disabled people by making comments about their disability. Other times, the boss or supervisor lets co-workers harass an employee because of his or her disability or work accommodation. One way to get Spitz, The Employee’s Law Firm’s employment discrimination lawyers fired up is to not even give an employee a chance because of their disability. Far too often, people are terminated before they are given a real chance to prove themselves at work because of a supervisor’s prejudice and preconceived notions about what disabled workers can and cannot do. (See Do I Have A Disability Discrimination Case?; Does My Boss Have To Give Me An Interpreter?; Best Disability Discrimination Lawyer Answer: What Is My Job Required To Do Once I Notify Them Of My Disability?).
When an employee makes a request for a reasonable accommodation, an employer must engage in the interactive process. This basically means that an employer must work with the employee to try to come up with a solution that works for the company and also empowers an employee to do their job successfully. Obviously, this involves a dialogue. In Keith v. Cty. of Oakland, 703 F.3d 918, 929 (6th Cir.2013), the Sixth Circuit Court of Appeal, which covers Ohio, held on this point:
Finally, we turn to the ADA’s requirement that an employer engage in the interactive process. The duty to engage in the interactive process with a disabled employee is mandatory and “requires communication and good-faith exploration of possible accommodations.” Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 871 (6th Cir.2007); see also 29 C.F.R. § 1630.2(o)(3). “The purpose of this process is to ‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.’” Kleiber, 485
F.3d at 871 (quoting 29 C.F.R. § 1630.2(o)(3)).
Now, this does not mean that an employer absolutely has to give each and every employee the accommodation that is asked for. Instead, the employer and employee have to work together to figure out a reasonable accommodation. An employer does not have to give an accommodation if that accommodation would create an undue hardship, meaning that it would disrupt the business or cost too much for that particular employer. Thus, what might an undue hardship for a mom and pop store might not be a hardship for, say, Wal-mart, speaking of which…
Paul Reina is an example of someone who was discriminated against because of his disability. Paul has a severe developmental delay, visual impairment, anxiety and is deaf. In other words, he was disabled. Paul is non-verbal, but his family and job coaches communicate with him using various forms of sign language. Paul’s first job during high school was working in a laundromat, he later worked at a delicatessen. But, his most successful role was at Wal-Mart.
He worked at Wal-Mart as a cart pusher. Paul started working for Wal-Mart in Wisconsin in January 1999. He had reasonable accommodations to help him perform his job successfully. Wal Mart agreed that he could work with a job aide, he would not have to handle fragile merchandise, and he would not be assigned to do tasks that he was incapable of handling. Paul’s family arranged for the job coaches to go to work with Paul. The job coaches were paid through the Medicaid waiver program. He worked as a cart pusher with no issues for 16 years. In fact, Paul received multiple pay raises and satisfactory performance reviews. In his 16th year at work, in 2015, Wal-Mart hired a new store manager, Jeff Scheurell. Scheurell started on June 10, 2015. Keep this date in mind as it will be important.
Paul’s job coaches stated that they helped him stay safe while in the parking lot. Since Paul could not hear, the coaches would look out for cars while he was collecting the carts. They also helped him stay focused on the tasks at hand. Most of Paul’s job was collecting carts, wiping them down if they were dirty or wet, picking up trash in the parking lot and breaking down boxes. According to the trial testimony, about once a week Paul would carry a customer’s groceries to his or her car and would load and unload the cart for the customer.
In one of Paul’s performance evaluations from 2003, one of his managers noted that “Paul is very dependable and hardworking. Constantly maintaining carts in corrals” and “loved to keep busy.” Paul’s last evaluation stated, “Paul is a pleasure to work with. Paul knows his expectations and does his job. Paul gets along with his fellow associates and is friendly to customers. Paul’s attendance is decent, not having missed any of his shifts.” Paul sounds like a great employee that anyone would be lucky to have.
On June 12, 2015, Scheurell called a meeting with Roseann Slaght, Paul’s legal guardian. If you remember the date above, this is a mere two days after Scheurell became store manager. How much time could Scheurell, as the boss, had time to actually observe and evaluate each individual employee by this point? Not much, right?
At this meeting Scheurell told Roseann that in order for Scheurell to continue working, Paul needed to fill out a new request for accommodations that included Scheurell’s personal medical information. Scheurell also told Roseann that Paul was going to go on a paid suspension until the documentation was completed and returned to the store.
However, this was an odd request since none of Paul’s medical conditions had changed. Paul also did not need any more reasonable accommodations at that time, aside from the
accommodations that he successfully utilized for 16 years. However odd the request, Roseann filled out the paperwork and submitted a new packet of requests for reasonable accommodations on July 9, 2015. Paul’s doctor signed a statement that Paul’s impairments, his limitations, and his need for the accommodation of a job coach to aid his seeing and hearing.
Roseann emailed Wal-Mart twice to check the status of the renewed accommodation request. Paul was eager to return to work. Roseann never received a response from Wal-Mart. Instead, when she tried to log onto the employee portal on August 1, 2015, she was denied access.
To make matters worse, Wal-Mart only paid Paul for the first two weeks of his “paid suspension.” For our employment lawyer’s perspective this appears to be a termination by the employer – he is no longer permitted to work, is not being paid, and was kicked out of the system. Hello, wrongful termination! And, what kind of a horrible human being is Scheurell? Not only did he get rid of a loyal 16-year employee because of his disability, but he did not even have the courage to tell Paul and his family directly.
Basically, at this point, Wal-Mart refused to engage in the interactive process. It’s suspicious that Paul’s accommodations are suddenly a problem after successfully working for 16 years. Indeed, the employer cannot successfully argue that accommodations that it provided for 16 years were not reasonable or that such disability work accommodations all of a sudden became an undue hardship.
Another the giant red flag is the fact that they stopped all communications after receiving the renewed request for accommodations. Refusing to even discuss the potential accommodations is not engaging in the interactive process. This violates the ADA.
Roseann went to the Equal Employment Opportunity Commission (“EEOC”), to file a claim of discrimination. (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney). The EEOC conducted an investigation and attempted to start the mediation process with Wal-Mart. The attempts at mediation were futile.
On March 16, 2017, the EEOC gave Paul the Right to Sue Letter finding reasonable cause to believe that the ADA was violated. On September 26, 2017, the Paul initiated a lawsuit against Wal-Mart for violating the ADA and failing to provide a reasonable accommodation for Paul which would allow him to perform his job.
In order for Paul to be successful in his ADA claim Paul must establish that, first, he is a qualified individual with a disability. This means that Paul must demonstrate that he can perform the essential functions of the employment position with or without reasonable accommodation. Paul’s attorney claimed that Paul could push carts from the corral to the store entrance without assistance, although he did use a job coach. Second, Paul must assert that Wal-Mart was aware of his disability. Clearly, in this case Wal-Mart was aware. Third, Paul mustdemonstrate that Wal-Mart failed to reasonably accommodate his disability. This means that the employer and the employee must participate in an interactive process about appropriate and reasonable accommodations.
In cases in which a disabled employee did not receive a reasonable accommodation, the employer will be liable only if it bears responsibility for the breakdown of the interactive process. Again, Wal-Mart really blew it on this one. Wal-Mart pretty much ghosted Paul’s family after they submitted their updated reasonable request form. The real kicker is that Paul did not ask for anything new, he just wanted to keep the accommodations that were already approved.
Somehow, Paul’s case made it all the way to trial. If Wal-Mart were smart, they would have tried to settle this case with Paul. The facts are just not in their favor at all, and a jury agreed. On October 10, 2019 after a nearly four-day trial, a federal jury in Madison, Wisconsin found in against Wal-Mart, and awarded Paul five million dollars. That’s an incredible amount of money. There’s no question that money will go a long way to ensure that Paul gets the care thathe needs.
The fact of the matter is that employers have a legal obligation to work with employees who need accommodations for disabilities. The silver lining of Paul’s story is that even after losing his job for Wal-Mart he went out and got a new job. He now delivers newspapers twice a week. After the case, a reporter asked Paul’s guardian, Roseann what she thought about the verdict. She said that “we are happy about the ruling, but the money is not what matters. We hope that Paul’s case can inspire others with disabilities. Everybody deserves a chance to have a job. Just because somebody might need an accommodation or even a person to be an accommodation, doesn’t mean they can’t do the job.”
I couldn’t have said it better myself. Money will not erase all of the pain of losing a job, but it sure does help. Thankfully, Paul’s guardian stood up for Paul, and asserted his rights on his behalf.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that youmight need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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