No Coach Necessary for Potty-Mouth Employee

by Foley & Lardner LLP
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As we have recently noted, and as many employers have probably bemoaned a time or two, sometimes it feels like the legal concept of “reasonable accommodation” has little to do with real-world notions of what is reasonable, particularly when courts are telling employees they might have to allow admitted employee theft as such an accommodation. However, a recent federal court decision suggests that a “reasonable” accommodation can still contain some practical balance, but it also serves to again underscore the importance of an employer’s obligation to engage in the interactive process.

The case involved a large supermarket chain and an employee with Down Syndrome (a genetic disorder causing intellectual disability) who worked as a bagger. In April 2005, the employee said “f*** you, you stupid blonde,” to another employee within earshot of customers and other employees. The supermarket then terminated him for using profanity in violation of the store’s disciplinary and anti-harassment policies. Prior to his termination and to help him perform his essential job duties, the supermarket provided an array of vocational tutoring early in his tenure with the store, which began in 1997. The market also provided individual training on daily tasks and instituted supervision policies that applied only to the employee. For example, his supervisor completed a daily performance evaluation form which either approved or disapproved of his performance and sent it to his parents per their request. A social service agency also sent a job coach to work with the employee. However, the employee sometimes had trouble complying with the store’s work rules. For example, he cursed at a manager on one occasion and another occasion cursed within earshot of a customer about a woman who complained that he ate her grapes as he was bagging them. He was also previously written up for theft of store merchandise, which was normally cause for discharge under store policy, but the store decided not to fire him and notified his parents instead. In response to the April 2005 cursing incident, the employee’s parents asked if the store could bring in a job coach, but the employee’s supervisor denied the request stating that a job coach was not necessary.

Following the employee’s termination, his parents filed a lawsuit on his behalf, claiming the store denied him a reasonable accommodation in violation of the Americans With Disabilities Act (“ADA”). However, the trial court dismissed the suit and the appellate court upheld that dismissal. Emphasizing the importance of both the employer and employee engaging in the interactive process under the ADA, the appellate court stated that,

[o]nce an employee requests a reasonable accommodation, the employer must meet the employee half way and engage in a “flexible, interactive process” to identify the necessary accommodations... Both parties are responsible for determining what accommodations are needed.

However, in stating that an employer cannot be held liable where the employee fails to provide information sufficient to determine the necessary accommodation, the appellate court also stated that “[a] tentative request for an accommodation to address minor theft does not imply a request for an accommodation for inappropriate verbal outbursts that violate the employer’s anti-harassment policies.” It also noted that the employee’s mother did not suggest that a job coach would prevent future outbursts of profanity and that the parents had not requested a job coach after the employee’s prior cursing infractions. The court also noted that the employee’s mother did not make reasonable efforts to help the store decide what reasonable accommodations were necessary. After being told by the supervisor that a job coach was not necessary, the mother did not suggest alternative accommodations or express fear that her son would have additional, more serious, behavior problems. Although the case represents a win for employers and their need to protect the integrity of the customer service focus they wish to project, it bears reminding that the decision also emphasizes the importance of both employers and employees meeting half way and determining what accommodations are needed. In this new era where the “reasonable” part of “reasonable accommodation” seems open to much interpretation, employers are well-advised to be even more proactive, and go further, when engaging in the interactive process in determining whether a reasonable accommodation is available.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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