Employers Must Take Initiative to Accommodate Obvious Disabilities

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            The Second Circuit Court of Appeals ruled that employers must provide reasonable accommodation to employees with obvious disabilities, even when the employee fails to request one. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008). Wal-Mart hired the plaintiff for a pharmacy assistant position. The employee held a similar job with a local pharmacy for two years prior to joining Wal-Mart. Within days of his hire his manager complained about his performance. Although plaintiff had cerebral palsy and was obviously disabled, his manager never approached him to discuss any reasonable accommodations he may have required to perform the essential functions of his job. Instead, he was transferred to a job collecting shopping carts and garbage in the parking lot. Shortly thereafter he quit and filed suit under the ADA.

            A jury found in his favor and awarded him $7.5 million. On appeal the Second Circuit, which covers Connecticut, affirmed the jury’s decision. In doing so it found the employee was actually disabled, and perceived to be disabled under the ADA. He was also qualified for the job of pharmacy assistant and suffered an adverse employment action when he was transferred to a less desirable job of collecting garbage in the parking lot, even though the pay and benefits remained the same.

            In addition to plaintiff’s discrimination claim, he also filed a failure to accommodate claim. Employers are separately liable when they fail to make reasonable accommodation for known physical or mental limitations of an otherwise qualified individual, unless the employer can show the accommodation would impose an undue hardship on the organization. While employees generally have an obligation to inform their employer of the need for an accommodation, the court held that where an employer knows or reasonably should have known that an employee has a disability that makes it difficult for him to perform his job, the employer must initiate an “interactive” accommodation discussion when the employee fails to do so on his own. When an employer fails to proactively investigate the need for accommodation under such circumstances it violates the ADA.

            Employers should become familiar with what constitutes a covered disability under the ADA, and how to comply with reasonable accommodation obligations under the law in order to avoid costly outcomes that even sophisticated employers like Wal-Mart have suffered.

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