Case in Point: Pearlie Talley worked as a store cashier for eight years. She suffered from arthritis, plus had a history of torn knee ligaments and heart surgery. Talley slipped on a waxed floor one day and injured her leg. She couldn’t stand for more than 15 minutes without extreme pain, so she started using a stool at her cashier post. Her manager took the stool away because co-workers were crying “unfair treatment.”

Eventually she brought in a doctor’s note verifying that she needed the stool as an accommodation to do her job. Her manager ignored the note. Instead, he insisted on having a meeting with her and the district manager to resolve the situation. But she was never contacted about any meeting. Soon after, Talley was removed from the work schedule and ultimately terminated.

Talley sued, claiming the company violated the Americans with Disabilities Act (ADA) by failing to provide a reasonable accommodation for her disability. (The ADA protects qualified individuals who can do the essential functions of the job with or without a reasonable accommodation. President Bush recently signed legislation that expands ADA protections to millions more Americans.)

In court, Talley argued that the store had provided stools in the past to other employees in need. Plus, she said, it failed to engage in an “interactive process” to discuss possible accommodations, as required by the ADA. Co-workers testified that she appeared to be in severe pain when at the register without a stool. (Talley v. Family Dollar Stores of Ohio Inc., 6th Cir., 9/11/08)

Do some of your employees work in hot conditions? If those workers have heart conditions, they may be entitled to air conditioning as a “reasonable accommodation” under the Americans with Disabilities Act (ADA) …

Case In Point: Charles Gribben worked as a UPS driver in Phoenix where he transferred trucks to various locations. He had a heart condition and his cardiologist requested that he only drive in trucks with air conditioning because of the local heat and his medical condition.

Most of the trucks he worked in were air conditioned, but UPS couldn’t guarantee him that accommodation. So it terminated Gribben.

Gribben sued UPS under the ADA for disability discrimination and retaliation. The ADA requires employers to offer reasonable accommodations to qualified disabled employees. An employee meets that test if he or she is “substantially limited in a major life activity” but can still do the essential functions of the job, with or without a reasonable accommodation.

UPS argued that although Gribben had a physical impairment that limited a major life activity, he failed to prove that he was “substantially” limited compared with the “average person in the general population.” UPS pointed to the fact that Gribben could walk and lift some weights. (Gribben v. United Parcel Serv. Inc., 9th Cir., 6/16/08)

How did the case end … and what lessons can be learned?

Do you ever fear that employees’ physical problems could create a danger to themselves or others around them? Think it would be best to change their duties to keep everyone safe? A new court ruling shows why such a well-intentioned deed could backfire into a “regarded as disabled” lawsuit under the Americans with Disabilities Act...

Case in Point: David Justice worked as an electrician at a beverage canning plant for 10 years. His job included working with large machines, walking on high catwalks and using ladders and hydraulic lifts. But after he suffered a stroke, he had difficulty with balance and vertigo.

His doctors eventually let him return but restricted him from working at heights. The company properly acknowledged the restriction and used other electricians to perform the height tasks.

But a few years later, Justice was transferred to the night shift. He was placed under a new supervisor who didn’t know about Justice’s work restrictions. The new boss observed Justice’s balance problems and feared he might pose a safety threat. Eventually the new boss transferred Justice to a janitor job, which was the factory’s lowest-ranking position and paid significantly less than an electrician.

Justice shot off an ADA lawsuit, saying the company unlawfully “regarded” him as disabled, even if he wasn’t. Thus, he claimed, he should be eligible for ADA job protection and reasonable accommodations for his condition. The company argued that he wasn’t disabled, so he shouldn’t get any special rights.

To prove a “regarded as disabled” discrimination claim, employees must show that the employer believed that the employee was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes” when in fact that is not the case.

How did this case end … and what three lessons can be learned?

Chances are, you’ve got at least one diabetic employee in your workplace. What would you say if that person asked for an altered work schedule so she could eat regular meals, check her blood or exercise? Are you required by law to grant such requests?

Diabetes is not automatically a disability under the Americans with Disabilities Act (ADA). But as a new court ruling shows, if employees can prove their diabetes “substantially limits one of their major life activities,” such as eating, then the employee is legally disabled and protected by the ADA. As a result, supervisors would be required to engage in an interactive discussion to arrive at a reasonable accommodation.

Case in Point: Lisa Robbins, a television station manager, was diagnosed with Type II Diabetes. She regularly worked 45 to 50 hours a week.

She repeatedly asked her supervisor and even his boss to reduce her hours and give her a “more manageable” work schedule so she could better control her diabetes with regular meal times, routine blood checks and the opportunity to exercise. Those requests were ignored. In fact, Robbins saw her workload increased after making the requests.

Robbins eventually resigned and filed an ADA lawsuit, claiming the station failed to accommodate her disability.

The TV station argued that Robbins couldn’t legally pursue an ADA case because she wasn’t “disabled” under the law. (The ADA protects people who are “substantially limited in a major life activity” yet can still perform the essential functions of the job, with or without a reasonable accommodation.)

The station claimed that her doctor’s recommendations to eat limited portions, have regular meal times and eat healthy was no different than recommendations made to nondisabled people who were trying to control their weight. (Robbins v. WXIX Raycom Media, S.D. Ohio, No. 1:06cv278, 3/5/08)

How did this case end … and what three lessons can be learned?

Do some of your employees’ spouses or children have serious (and expensive) health troubles? It may be tempting to offer suggestions about less-costly treatments—or even to send that employee packing. But don’t do it. As this new ruling shows, it’s illegal to discriminate against employees based on their relationship with a disabled person …

Case in Point: Phillis Dewitt was a nurse manager at Proctor Hospital in Peoria, Illinois. She was a rising star and received excellent evaluations. Her husband, Anthony, suffered from prostate cancer for several years.

The hospital, which was struggling financially, had a partially self-insured health care plan. Over a three-year period, the hospital was regularly notified of Anthony’s escalating medical costs.

At one point, a supervisor confronted Phillis about those high costs and suggested she consider “less expensive” hospice care over the current treatments of chemotherapy and radiation. On a separate occasion, with Phillis present, the supervisor held a meeting to discuss the hospital’s financial crisis and said the hospital would require “creative” cost cuts.

A few months later, Phillis was fired and marked as “ineligible to be rehired.” Her husband died the following year. She sued, alleging the firing was caused by “association discrimination,” which is unlawful under the federal Americans with Disabilities Act (ADA). The hospital argued Phillis was fired for insubordination. (Dewitt v. Proctor Hospital, 7th. Cir., 2/27/08)

How did this case end ... and what three lessons can be learned?

Sometimes, the simplest mistakes are the most expensive. When faced with the decision of firing an assembly-line worker or giving her a chair to ease her arthritis, this company took the litigious route—and paid the price …

Case in Point: Delores Vaughn worked on the assembly line for Sharp Manufacturing. When the arthritis in her legs got bad, her doctor said she needed to sit during the workday. He suggested she be given a stool to sit on as an accommodation.

But the company refused, saying it was an “essential function” of her job to stand all day. Vaughn filed a complaint with the EEOC, arguing that the company failed to provide her with a “reasonable accommodation” for her disability, a violation of the Americans with Disabilities Act (ADA). The company eventually fired her, claiming that she couldn’t do the essential function of her job, so she wasn’t protected by the ADA.

Ten days after she was fired, Vaughn filed for Social Security Disability Insurance, claiming she was disabled. The company argued that this filing proved that she was totally disabled, unable to work and, therefore, not protected by the ADA. Vaughn countered that a simple four-legged stool accommodation was all she needed to be able to perform the job’s essential function. (EEOC vs. Sharp Mfg. Co. of Am., W.B. Tenn., 2/1/08).

How Did This Case End … And What Lessons Can Be Learned?

Sometimes employees get frustrated. Sometimes they even act rudely. But a new ruling highlights a legal risk you may not have thought about: Employee’s rude treatment can quickly turn into an ADA lawsuit if the customer is disabled. A New York court last week called the problem a “failure to train” case:

Case in Point: Alice Camarillo is legally blind. She can only read large type that’s close to her face. She frequents fast food restaurants near her home, including a Taco Bell, Burger King, McDonalds and Wendy’s. She has informed employees at the restaurants that she is legally blind and unable to read the menus.

When she’s asked employees to read the menus to her, Camarillo claimed she was “made fun of, stared at and forced to wait until other customers behind her in line were served.” Even then, she said, employees responded with annoyance and only read parts of the menu.

Camarillo filed an ADA lawsuit, claiming that the failure to provide large print menus violated the ADA. A lower court dismissed her case on the grounds that employees always read the menus to her and she was never turned away from the restaurants.

But Camarillo filed an appeal taking a different approach: that the restaurants failed to train their employees in the proper handling of disabled employees. Thus, they didn’t take necessary steps to make sure customers aren’t treated different due to their disabilities. (Camarillo v. Carrols Corporation, 2nd Cir., 2/8/08)

You’ve probably got an ADA policy that extends reasonable accommodations to any disabled workers. That’s good. But are your managers following through? If your paper policy is the only thing granting accommodations, a court could make you pay the price … big time. As in punitive damages.

The Americans with Disabilities Act (ADA) offers job protection to people with qualified disabilities who can perform the essential functions of the job (with or without a reasonable accommodation). The kicker: As FedEx learned last week, your company can get hit with punitive damages in ADA lawsuits if it shows “reckless indifference” for the law and rights of the employees.

Case in Point: Ronald Lockhart, who was deaf, worked as a FedEx package handler in Maryland for three years. He never requested accommodations to perform his regular work, but he repeatedly asked for a sign language interpreter or written materials to understand what was said in meetings and training sessions. FedEx ignored his requests. Lockhart couldn’t even tell what was being discussed during the meetings.

In one instance, he became very upset during the national anthrax emergency because FedEx delayed giving him a security badge for several months due to lack of an interpreter.

Eventually, Lockhart filed an EEOC charge. FedEx fired him. The EEOC won him a jury award of $8,000 in compensatory damages and $100,000 in punitive damages (which the court agreed was “nothing” compared to what FedEx could afford.)

Still, FedEx appealed, arguing that it made “good faith efforts” to comply because it had an ADA policy in its employee handbook.

Do you know the “magic words” you need to say when an employee requests an accommodation under the Americans with Disabilities Act (ADA)? Do you even know when they’re asking for such accommodations?

You can’t expect employees to walk into HR and ask, “May I have a reasonable accommodation under the Americans with Disabilities Act of 1990? Oh, and don’t forget to engage me in the required interactive process!”

It’s true that employers must start an “interactive process” after an employee request an accommodation that may fall under the ADA. But that request may come in the form of someone saying, “My doctor says my back injury means I can’t lift heavy stuff anymore.”

As the following case shows, blowing off that interactive process could be seen by the courts as “bad faith,” which gives the employee a direct admission ticket to a jury trial.

Case in Point: David Vaughan, a part-time UPS supervisor, was responsible for stacking packages, making sure packages were properly loaded onto trucks and training new workers. His job’s essential functions included the ability to stand and walk 5 hours a day, plus lifting up to 70 pounds.

After Vaughan hurt his neck at work, he missed several months and returned to light-duty work that prohibited him from lifting or moving heavy packages. Eventually, his doctor placed him on permanent medical restrictions that prohibited him from walking more than four hours or lifting more than 20 pounds.

UPS told Vaughan that because he could no longer do the job’s essential functions, he no longer had a job. Vaughn asked his UPS workers’ comp case worker if he could be considered for another position that didn’t require heavy lifting. She responded that there were no such available jobs and that “they won’t even discuss it.”

Vaughn fired off an ADA lawsuit, alleging that UPS failed to reasonably accommodate his disability. (Vaughan v. United Parcel Service, 10/4/07)

Before firing or disciplining an employee for tardiness, ask yourself these two questions: Could he be covered under the Americans with Disabilities Act (ADA)? And, if so, how essential is his punctuality to the job?

While the ADA requires companies to make job accommodations for disabled workers, you don’t have to employ anyone who can’t perform the “essential functions” of the job. And on-time attendance is an “essential function,” right? Not necessarily, as the following case shows.

Case in Point: Tommy Holly, a paraplegic who uses a wheelchair, was an excellent employee at a Florida plastics manufacturing company for 17 years. He was sometimes late to clock in by a few seconds or minutes, typically because tables blocked his path to the time clock or he’d wait out rainstorms in the parking lot to prevent getting drenched.

The company informally accommodated his disability-related tardiness. But that all stopped when a new sheriff rode into town. The new HR manager introduced a no-excuses attendance policy that made absolute on-time arrival an “essential function” of every job. The new policy made no allowances for absences without a doctor’s note. Plus, the policy stated, “Employees with American Disability Act situations are not exempt from this policy.”

Holly was fired when his tardiness reached the policy’s cutoff number. Sometimes he was late one second, other times a minute or so. Under the policy, it made no difference. Nor was the HR manager swayed by Holly’s supervisors’ pleas to allow them to retain a hard-working team member.

Terminations are a legal minefield, but you’d think it would be easy to fire a 911 emergency dispatcher who was found sleeping on the job. Not in today’s lawsuit-happy environment.

A new court ruling from Salem, Ore., highlights the legal risks under the Americans with Disabilities Act (ADA) of terminating employees for performance problems when those problems could potentially be caused by the person’s disability.

In this case, the city fired a long-time dispatcher with sleep apnea for falling asleep at work and other performance issues. While the court admitted that the sleeping on the job is “unacceptable and dangerous behavior” for a 911 dispatcher, the court allowed the employee’s ADA lawsuit to continue. Why? The city may have “classified a symptom of [his] disability as misconduct” when terminating him.

Bottom line: This employee may soon be counting his employers’ money, as well as counting sheep. (Brown v. Salem, D. Ore., 2/27/07)

What does this new ruling mean to you?

Since when is a manager’s mere “concern” over a disabled employee’s ability to do the job enough justification to terminate? Try never. In the dictionary, “concern” is synonymous with “worry” and “fear.” So, a manager who is wringing his hands with potential concerns about an ADA-protected employee’s performance may soon have bigger things to be concerned with ... like a federal lawsuit.

A new court decision involving a RadioShack employee broadcast this lesson loud and clear. The court sent the case to a jury trial because the fired employee could show that his termination resulted from “bias concerning his disability” rather than the performance reasons cited by RadioShack. (Walerstein v. RadioShack Corp., E.D.N.Y., No. 04 CV 1096 (SJ) (SMG), 3/30/07).

What does this new ruling mean to you?