You’re Damned if You Turn a Blind Eye to a Disabled Employee’s Ability to Perform the Essential Functions of the Job.

Posted: January 9, 2013 in Disability Liability, Discrimination, Hiring and Firing, Lawsuits

The case of Kogut v. The Coca-Cola Company, Massachusetts Commission Against Discrimination, No. 08-SEM-01239 (2012) demonstrates that even the biggest of companies, with professional H.R. (and the best lawyers defending them at trial) can make costly mistakes with respect to disability discrimination in Massachusetts.  This is undoubtedly the most complex area of law and it is easy to make a mistake.  For one thing, you will be held to a reasonableness standard, which means that you can act completely in good faith, but someone else gets to determine if you acted reasonably.

In this case, the complainant worked in the Coca-Cola plant in Northampton, Massachusetts through a temp. agency.  The employee was blind in one eye, but that did not prevent him from performing his job duties.  When a permanent position came up, Coca-Cola gave the employee a conditional offer of employment, subject to a medical examination.

When Coca-Cola learned of his visual disability, it revoked the conditional offer of employment.  It’s reasoning was that driving a forklift was part of the permanent position, and it had a legitimate safety concern with a visually disabled person driving a forklift.

Not so fast, said the MCAD.  It noted that for the particular job at issue, a Level 3 Operator, there was no reference to forklift use or operation in the “Physical Demands Analysis” or Job Descriptions, although the Level 1 Operator position did list “operate lift trick” among the essential job functions.  There appeared to be some confusion from some Coca-Cola managers as to which job position the Complainant applied for, but the MCAD clearly found that he applied for a Level 3 position, which did not require forklift operation.

The MCAD further found that, “even if forklift driving would have been required of the Complainant on occasion, . . . Respondent could have determined that, given the number of other available and certified drivers on Complainant’s shift, he could be excused from driving a forklift altogether as a reasonable accommodation.”

It appears that Coca-Cola’s mistake was that, according to the MCAD ruling, “its HR and medical safety consultants never met with Complainant or his direct supervisors at the plant to identify and evaluate the actual position for which he was being hired or to discuss possible accommodations, if required.”  Coca-Cola probably could have saved itself with the “interactive process” that it was required to do.  Had it done so, it would surely have discovered its errors, or alternatively it would have a record that the complainant could not have performed the essential job duties.  But simply relying on job descriptions did not go far enough to either meet its obligations or to protect itself from liability.

If you have a job candidate with a disability, carefully consider your legal obligations.  If you need help figuring this out, call me at 617.338-7000

By Adam P. Whitney

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