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Failure To Accommodate Can Result In Constructive Discharge

Published by on September 16, 2008

Workplace Prof Blog has a post today here on a decision by the U.S. Court of Appeals for the Sixth Circuit.  The case drew our attention because it relied on a decision by the Fourth Circuit in concluding that an employer’s failure to accommodate a disabled worker can be grounds for a constructive discharge claim.  […]

Workplace Prof Blog has a post today here on a decision by the U.S. Court of Appeals for the Sixth Circuit.  The case drew our attention because it relied on a decision by the Fourth Circuit in concluding that an employer’s failure to accommodate a disabled worker can be grounds for a constructive discharge claim.  The court’s opinion is here.

 

The plaintiff worked as a cashier for Family Dollar and had requested the use of a stool to accommodate her disability, arthritis.  She alleged that standing caused her pain.  The problem for Family Dollar in the case was that her supervisors had previously allowed her to use a stool, but had then changed their mind because of complaints by co-workers that allowing her a stool was “preferential treatment.”  The key portion of the Court’s opinion is as follows:

Viewing the facts in the light most favorable to the plaintiff, she proposed the use of a stool (an accommodation that her supervisors had let her use on prior occasions), but she was told that this was no longer acceptable, allegedly because other employees had complained about unfair treatment. The parties dispute whether Talley was offered the chance to take breaks in lieu of using a stool and whether those breaks would have been sufficient to allow her to work her shift without pain. The record suggests that the use of a stool may have been a reasonable accommodation, especially since her prior supervisors allegedly were not concerned about Talley’s productivity when she was allowed to use the stool. There is testimony that Talley was able to adequately perform her job at the register with the use of a stool and that she did not require unlimited breaks when she was allowed to use the stool. While it is true that the plaintiff cannot reject a reasonable accommodation, according to Talley, she was not offered an accommodation that would have allowed her to work her shift without pain. Therefore, we conclude that there is a genuine issue of material fact regarding whether the plaintiff proposed a reasonable accommodation that would have allowed her to be “otherwise qualified” for the cashier position despite her disability. Further, if a jury were to find that Talley’s requests, both written and oral, for a stool constituted a request for a reasonable accommodation, there is a remaining dispute of whether that accommodation would cause an undue hardship for the employer. The defendants have not set forth specific facts indisputably demonstrating that the use of a stool would have presented an undue hardship for the company.

While the defendants allege that other co-workers had complained about unfair treatment, given Talley’s and other workers’ testimony that she was able to perform her job adequately when using the stool, there is a genuine issue of material fact as to whether this accommodation would have imposed an “undue hardship” on Family Dollar and the other defendants. Assuming that Talley was denied a reasonable accommodation that forced her to work in excess of her medical restrictions, a reasonable jury could infer that the defendants knew that Talley’s working conditions would become intolerable to a reasonable person suffering from her particular disability.

The court did clarify that not every denied request for an accommodation would pave the way for a constructive discharge claim:

As our sister circuit recognized in Johnson v. Shalala, “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.” 991 F.2d 126, 132 (4th Cir. 1993). We emphasize that our holding today does not pave the way for an employee to assert a claim for constructive discharge every time an employer fails to accommodate her disability. But when an employee makes a repeated request for an accommodation and that request is both denied and no other reasonable alternative is offered, a jury may conclude that the employee’s resignation was both intended and foreseeable.

The court also concluded, on page 8 of the opinion, that there was a genuine issue of material fact as to who was responsible for the breakdown of the mandatory “interactive process” to determine what accommodations might be possible.  This is a very important point for employers — a failure to participate in good faith in the “interactive process” will very likely be found to be a discriminatory practice under the Americans with Disabilities Act by the EEOC and the courts.  Employers should make a good faith effort to engage in the required interactive process with an employee requesting a disability and to document that process.

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