By: Carol G. Schley, Clark Hill PLC
A recent decision from the federal Sixth Circuit Court of Appeals (which includes Michigan) is a reminder to employers that even small steps taken to reasonably accommodate an employee’s disability can avoid significant liability down the road.
In E.E.O.C. v. Dolgencorp., LLC, Linda Atkins was a sales associate for a Dollar General store. During her employment, she received pay raises and a promotion to lead sales associate. Ms. Atkins had type II diabetes which required her to quickly consume glucose when she experienced low blood sugar in order to avoid seizing or passing out. Because of her condition, Ms. Atkins asked her supervisor if she could keep orange juice at her cash register, but this request was denied. Subsequently, she experienced two diabetic attacks while at work. For each attack she consumed orange juice from the store’s cooler, and then reimbursed the store for the cost of the juice.
In 2012, two managers investigated employee theft and “shrinkage” issues at the store. When she was interviewed, Ms. Atkins informed the managers of the two circumstances where she suffered a diabetic attack and reimbursed the store for orange juice she consumed. The managers informed Ms. Atkins that her conduct violated Dollar General’s “grazing policy” (which said employees could not consume store food before paying for it) and they fired her on the spot.
Ms. Atkins filed a charge with the EEOC, which proceeded to file a lawsuit on her behalf asserting that Dollar General violated the Americans with Disabilities Act (“ADA”). The jury found in favor of Ms. Atkins, awarding her $27,565 in back pay, $250,000 in compensatory damages, and $445,322 in attorney’s fees. Dollar General appealed.
On appeal, Dollar General argued that the jury erred in finding that it failed to accommodate Ms. Atkins’ disability. On this issue, the court noted that Dollar General faced “a steep hill.” First, Dollar General asserted that there were other ways that Ms. Atkins could have addressed her diabetic episodes (e.g., by consuming glucose tablets or eating honey, candy or peanut butter crackers) and, therefore, Dollar General had no obligation to allow her to keep orange juice at her register. The court rejected this argument, finding that because Dollar General failed to fulfill its duty under the ADA to explore alternative reasonable accommodations with Ms. Atkins when she first asked to keep orange juice at her register, it could not now claim her disability could be accommodated in different ways. “The store manager categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior. That was Dollar General’s problem, not Atkins’ – or at least a reasonable jury could conclude.” Second, the court of appeals found that Ms. Atkins presented sufficient evidence at trial for the jury to conclude that the alternatives to orange juice proposed by Dollar General were not reasonable.
The Court of Appeals also upheld the jury’s determination that Dollar General terminated Ms. Atkins because of her disability. Dollar General claimed it had a non-discriminatory basis for terminating her, i.e., her violation of the “grazing policy.” However, the court held that, “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.” The court held that Dollar General’s failure to provide any accommodation to Ms. Atkins presented direct evidence of discrimination in violation of the ADA. “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.”
This case boils down to what appears to be no recognition by Dollar General’s managers that Ms. Atkins’ situation implicated the ADA. Both the manager who rejected her request to keep orange juice at her register, and the two managers who fired her after she revealed she consumed orange juice from the store cooler, made no attempts to engage in the interactive process with her as required under the ADA. Had Dollar General granted Ms. Atkins’ request to keep orange juice at her register, or granted her a reasonable exception to the “grazing policy,” it most likely would not have been found liable for over $700,000 in damages and attorney’s fees. The takeaway is that an employer must have a clear and comprehensive written disability accommodation policy, and managers must be knowledgeable of the policy and thoroughly trained so that they can competently recognize, report and handle ADA issues that arise in the workplace. Finally, it is important to engage legal counsel to assist with such issues to avoid potential mistakes and costly liability.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at email@example.com or (248)530-6338.
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