[author: Edward N. Druck, Josh Meeuwse and Erin Fowler*]
Recently, the U.S. District Court for the Northern District of Georgia held that a successor employer lawfully refused to continue granting an accommodation made by its predecessor.
In EEOC v. Eckerd Corporation d/b/a Rite Aid, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Fern Strickland, a long-time Eckerd employee. In 2001, Strickland was diagnosed with osteoarthritis in both of her knees. Because of her condition, Strickland could not stand for long periods of time. With her store manager’s approval, she began to intermittently sit in a chair to relieve the pain in her knees.
In 2007, Rite Aid bought the Eckerd Corporation and acquired the store where Strickland worked. After purchasing Eckerd, Rite Aid streamlined its payroll by staffing each store with only one or two cashiers and one manager or supervisor. Rite Aid then began requiring its cashiers to work productively on the sales floor when there was no customer at the register, to assist with unloading trucks, regularly stock the shelves, clean the store, conduct inventory, and work in the photo lab. Despite these changes, Strickland’s store manager continued to allow her to sit intermittently.
Less than a year later, during a visit to the store Rite Aid District managers observed Strickland sitting on the job. After learning that the store manager had allowed the practice, Rite Aid reviewed Strickland’s file and discovered a doctor’s note from January of 2007 that vaguely said Strickland needed a stool or chair at work. Because the note was nonspecific and more than a year old, Rite Aid requested a new note from her doctor. Rite Aid also reviewed videotape and estimated that Strickland spent half of her time at work sitting down. Strickland’s doctor submitted a new note, indicating that Strickland had to spend 30 minutes out of every hour sitting down. Rite Aid felt this restriction was an undue hardship, so it asked the doctor to provide an alternate accommodation but he never responded to the request. Rite Aid eventually terminated Strickland, and the EEOC filed a lawsuit on her behalf, alleging that Rite Aid failed to provide a reasonable accommodation and terminated Strickland because of her disability.
Granting Rite Aid’s motion for summary judgment, the district court found that Strickland was not a “qualified individual” with a disability because she could not perform the essential functions of the job with or without a reasonable accommodation. Specifically, the court recognized that Strickland could not work productively on the sales floor if she spent half of her time sitting in a chair. Thus, the sitting accommodation would eliminate many of the essential functions of her job. The EEOC argued that because the store allowed her to sit down for eight years, the additional job duties could not be essential, and furthermore, the employer’s actions gave Strickland a right to the accommodation. The court rejected these arguments, holding that an employer who voluntarily accommodates an employee does not concede that a job function is unessential by temporarily removing the function from the disabled employee’s duties. The court also found that an employer’s willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required.
What is significant about this decision is a recognition that a reasonable accommodation is not set in stone. Employers have the flexibility to react to changing circumstances in the workplace and can and should re-evaluate accommodations made to employees to ensure they remain feasible and appropriate.
* Erin Fowler is currently a law student at the University of Illinois and is a Franczek Radelet LEADS Fellow.
