Employee Does Not Always Have to Request Accommodation to Trigger Interactive Process

Employers must Offer Reasonable Accommodations
If it Is Obvious Disabled Employee Needs One

An employer is required to provide a reasonable accommodation for a disabled employee if it is obvious the employee needs a reasonable accommodation to perform the essential functions of his or her job, even if the employee never requested an accommodation or does not think he needs one. That was the ruling reached by the United States Court of Appeals for the Second Circuit on July 2, 2008.

In that case, Brady v. Wal-Mart Stores, Inc<, Patrick S. Brady sued Wal-Mart and two of his supervisors under the Americans with Disabilities Act (“ADA&”), 42 U.S.C. 12101 et seq., and the New York Human Rights Law, N.Y. Exec. Law 290, et seq.

Brady, a nineteen-year-old with cerebral palsy, worked for Wal-Mart in the pharmacy department of a store in New York State. According to the court’s opinion, it is obvious to someone who sees Brady that he is disabled. For example, he walks slowly and with a shuffle and limp, he speaks noticeably slower, he does not look directly at the person to whom he is talking, and he has poor vision and a poor sense of direction. His disability affects virtually every aspect of his life, including driving, working, eating, learning, and seeing.

After working for another pharmacy for two years, Brady accepted a job in Wal-Mart’s pharmacy. From his first day on the job, Brady’s boss, Yem Hung Chin, expressed her dissatisfaction with Brady. She was short with him, made it clear she was not happy that Wal-Mart hired him to work in its pharmacy, and told him to speed up his work. Chin testified that Brady was too slow, appeared to have difficulty matching customers’ names to their prescriptions, and that his job performance was “absolutely awful.” She also testified that she “knew there was something wrong” with Brady.

At the end of Brady’s second day of work, Chin sent him to the personnel department. A personnel manager then informed Brady that the only job available was collecting shopping carts and garbage in the parking lot. Not surprisingly, Brady found this new assignment degrading, and considered it a demotion.

After Brady’s father complained to the assistant store manager, Wal-Mart agreed to return Brady to the pharmacy. But instead, Wal-Mart assigned him to the food department, where he was responsible for stocking shelves and zone merchandise. At the end of Brady’s first day working in the food department, Wal-Mart assigned him a work schedule for the following work week that was incompatible with his college schedule, even though he indicated his class schedule on the availability form he submitted. Frustrated by Wal-Mart’s actions, Brady quit the next day. Brady then sued Wal-Mart.

The jury found, in relevant part, that Brady was disabled within the meaning of the ADA and/or Wal-Mart perceived him to be disabled, Wal-Mart transferred him from the pharmacy to the parking lot because of his disability, Wal-Mart subjected him to a hostile working environment because of his disability, and Wal-Mart failed to provide him a reasonable accommodation for his disability.

Based on these violations of law, the jury awarded Brady $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. The trial court took away the economic damages award because the jury did not find that Brady lost his job as a result of the discrimination, and reduced the punitive damages to $300,000 in accordance with the ADA’s damages cap. After Wal-Mart asked Court to reduce the compensatory damages on a motion for remittitur, Brady accepted the Court’s reduction of the compensatory damages from $2.5 million to $600,000. Wal-Mart then appealed to the Second Circuit, which is the federal appellate court that covers the states of New York, Connecticut, and Vermont.

The Second Circuit first rejected Wal-Mart’s argument that Brady was not disabled, ruling that his cerebral palsy is a disability. It also found that the company perceived Brady to be disabled, relying on evidence including his supervisor’s admission that she “knew there was something wrong” with him.

The Appellate Court then found that it was permissible for the jury to conclude that Wal-Mart’s decision to transfer Brady to the parking lot was an adverse employment action because that position had a “less distinguished title” and “significantly diminished material responsibilities.” The Court did not find it critical that Brady only worked in the parking lot for a short period of time, especially since Wal-Mart never transferred him back to the pharmacy.

Perhaps most significantly from the standpoint of clarifying the ADA, the Second Circuit ruled that the jury properly found that Wal-Mart failed to accommodate Brady’s disability, even though he never requested an accommodation. The ADA makes it illegal for an employer to fail to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability, unless the company can prove the accommodation would impose an undue hardship on its business. Ordinarily, when an employee requests a reasonable accommodation the employer is required to engage in an “interactive process” with the employee to determine whether his or her disability can be reasonably accommodated. The Second Circuit ruled that employers also have an obligation to engage in the interactive process if it is obvious that an employee needs an accommodation for a disability, meaning when the company knew or should have known that the employee is disabled and needs an accommodation.

The Second Circuit’s ruling that an employee does not need to request a reasonable accommodation to trigger the interactive process if his or her disability is obvious, is important because many disabled employees do not know they need a reasonable accommodation, do not know they are legally entitled to reasonable accommodations, or are either too embarrassed or too afraid to request an accommodation. At the same time, the court’s decision recognizes that it would be impossible for an employer to provide an accommodation if it does not know the employee needs one. Thus, the court concluded that employers are required to provide a reasonable accommodation only if the employee requests an accommodation, or if the employee’s disability is obvious.

The employment lawyers of Rabner Baumgart Ben-Asher & Nirenberg, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

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