You’re Damned if You Don’t … Treat Your Disabled Employees Differently

Posted: March 15, 2011 in Disability Liability, Lawsuits

The usual advice to avoid discrimination claims is to treat everyone the same. If only life were so easy. For disabled employees, you may in fact have an obligation to treat them differently.

The American with Disabilities Act (the “ADA”) and its state counterpart are a source of continual confusion and consternation for Massachusetts employers. The rules are confusing, even for lawyers. A recent case from the Eighth Circuit Court of Appeals, EEOC v. Convergys Customer Management Group, is illustrative of how an employer can make a mistake. Though not binding on any Massachusetts state or Federal Court, the ruling could be followed by courts here.

In that case, the employer, Convergys, was ruled to be in violation of the ADA when it failed to accommodate and later fired a disabled employee. The employee, who was wheelchair-bound, was often late because all of the handicapped parking was filled. He was also late returning from lunch because the layout of the office made it more time consuming for him to find an open work station (he worked as a call center representative). He explained his difficulties to his supervisors and even suggested some accommodations. The employer refused to grant any accommodations and later fired him. A jury awarded $100,000 in emotional distress damages and over $14,000 in lost wages. The Appeals Court upheld the verdict and faulted the employer for not engaging in the “interactive process” required under the ADA (the ADA is applicable to employers of 15 or more everywhere in the country; Massachusetts has a similar law applicable to employers of 6 or more employees).

The employer’s damages – and surely a great amount of legal fees and costs – could have been avoided with a five minute call to a good employment lawyer. Any good employment lawyer would have explained to the employer its duty to engage in an interactive process and to provide reasonable accommodations. Massachusetts law is particularly strict on the interactive process, so the same type of ruling could be expected here. The employer may have taken comfort in treating the employee like everyone else. But, he was not like everyone else and what makes him different is what is called a protective class.

A similar case came out of the Eleventh Circuit Court of Appeals, Holly v. Clairson Industries, L.L.C. Holly was also a wheelchair-bound employee whose employer had a strict punctuality rule. The employer tried to enforce a strict company policy which stated that disabled employees were “not exempt” from the punctuality rule. The employee was sometimes a few minutes late due to the obstructions in the break room, such as lunch tables being in his way. He was a 17-year exemplary employee and made up any missed time by working through breaks or working late. The trial court sided with the employer, but the Appeals Court reversed. It ruled that the employer could not exempt itself from the ADA by treating everyone the same. In fact, the employee’s job was not time sensitive and precise punctuality did not matter. The case was remanded to the trial court for trial.

The Holly case raises an important point: disabled employees sometimes have to be treated differently than other employees. Employers have to engage in an interactive process whenever an employee needs an accommodation to do his job. The accommodation must be provided if it is a reasonable accommodation. Reasonable accommodations can include many things, such as, as we have seen above, allowing an employee to be late. The more important lesson is to call your employment lawyer when you have any question about these issues and especially before disciplining or terminating a disabled person that may need accommodations.

These are just two of thousands of examples where disabled employees need to be treated differently. This can also apply to emotional-type disabilities, like bipolar disorder. You’ll be damned with expensive legal fees and perhaps a large verdict if you do not carefully consider these issues.

By Adam P. Whitney, 617.338.7000.

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