This Spring the EEOC Is Hot on Disability Discrimination

In January, the EEOC announced that Lowe’s Home Centers agreed to pay $55,000 to settle a disability discrimination lawsuit.  According to the EEOC, Lowe’s failed to reasonably accommodate a department manager with a disability that substantially limits the use of his right arm.  The employee was promoted to a department manager in 2008, and Lowe’s was aware of his disability at the time he was promoted.  During his employment, the employee was unable to use power equipment that required the use of two hands, but he was able to delegate such tasks to employees under his supervision.  In 2015, Lowe’s notified the employee that they could no longer provide him with a reasonable accommodation and demoted him to a non-supervisory associate position.

So where did Lowe’s go wrong?

The EEOC’s announcement is light on justifications put forth by Lowe’s, but based on similar questions that are posed to me on a regular basis, I can place some guesses.

The American’s with Disabilities Act requires employers to provide reasonable accommodation to qualified individuals with disabilities, except when such accommodation would impose an undue hardship.  A reasonable accommodation is a modification or an adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.  

By all accounts, the manager had been performing the essential functions of his position with accommodation for several years.  In a situation like this, where an employer is looking to change a longstanding accommodation, it is important for a few things to happen:

  1. Make sure the need for the change is well documented.  Circumstances can change over time, as can job duties and requirements.  While it is possible that an accommodation that was reasonable for several years could stop being so; the EEOC, courts, and your employees will look at such a change skeptically.  Documentation of a legitimate, nondiscriminatory business reason justifying why the accommodation is no longer reasonable is a must.
  2. Even if Lowe’s could show that the previous accommodation was no longer reasonable, the ADA still requires employers to engage in an interactive dialogue with the disabled employee to identify possible accommodations that would allow the employee to perform the essential job functions.  This conversation appears to be conspicuously missing in this case.
  3. In the case of a disability, demotion or termination should only occur if the employee cannot perform the essential job functions with or without accommodation, or if the employer can show that reasonable accommodations that would allow the employee to remain in the job would impose an undue hardship on the employer.  It is important to remember that undue hardship is not always easy to show; and in a large national company like Lowe’s, the employer would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer.  Again, there is no indication here that the employee could not perform the essential functions of his position, or that continuing to accommodate the employee would have imposed an undue hardship on Lowe’s.

Employers looking to remain outside of the EEOC’s cross-hairs should take note of Lowe’s missteps.  Remember to engage in the interactive dialogue with any employee requesting accommodation for a disability, and document, document, document.  These two steps, combined with pumping the brakes on premature employment actions will go a long way toward avoiding an unpleasant rendezvous with the EEOC.

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