Category Archives: Interactive Process

Recent EEOC Suits Highlight Importance of “Interactive Process” for Reasonable Accommodation under ADA Claims

by ,

As a follow up to my piece yesterday, concerning Hancock Fabrics’ failure to engage in the required “interactive process” after an employee requested accommodation, I came across this concerning two EEOC lawsuits recently filed and concerning the same issue.  These EEOC suits, one in Maryland against KMart, and another against a car dealership in Arkansas both detail ADA issues that arose after the employer failed to consider an employee’s requests for accommodation.

Where Did These Employers Falter under the ADA?

It’s important to remember that these are simply lawsuits, based on claims by the EEOC and the individuals whose claims the EEOC is trying to enforce.  That said, the EEOC initiated both suits as a result of its commitments to its Strategic Enforcement Plan, which includes one goal (among six) to “address emerging and developing issues in equal employment law,” including reasonable accommodation.

If the EEOC is focusing on these issues, employers should.

The Kmart lawsuit (EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation; Civil Action No. 13-cv-02576) involved a potential employee (“PE”) who had been offered a position but needed to complete a drug screening prior to hire.  The drug test required that the PE submit a urine sample, which the PE was unable to do because of the PE’s kidney problems that necessitated regular dialysis.  The PE conveyed this to KMart and ask if there was an alternative way to submit to the drug screening, such as a blood test or hair sample.  Two weeks later, KMart advised the PE that all new hires submit to the standard urine drug test and denied the PE employment.

The Randall Ford car dealership in Fort Smith, Ark., is alleged to have violated federal law when it did not accommodate a used car manager who was allegedly terminated because of his disability (Docket No. 13-2206).  The EEOC’s suit alleges that Randall Ford violated the ADA when it refused to accommodate the used car manager’s disability as a result of a spinal surgery.  The manager asked to use a golf cart and for help in test-driving vehicles to determine their trade in value.  The company had the golf carts, but did not discuss the suggested accommodations with the manager, instead terminating him for unrelated misconduct.

An ADA Request for Accommodation Requires Employer Action

Ignorance is not bliss in this area of the law.  A request for accommodation requires action by the employer.  The cases show that the process does not have to be formal.

Even if the request is outrageous, no response from the employer means the employer has failed to engage in the interactive process required under the law.

Hancock Fabrics Missed the Boat After Employee’s Request for Accommodation Under ADA

by ,
From juliejordanscott through flickr under CC 2.0 license

Viajuliejordanscott through flickr under CC 2.0 license

ADA claims are complicated.  Not only is there the rapidly changing law to contend with (and recent, very expansive, amendments), but there are nearly always substantive medical issues, and disputes about what they may or may not mean for the employee’s ability to work and the employer’s corollary obligation to provide accommodations.  Trials are complicated with medical experts, vocational experts, and so on.

Zimple v. Hancock Fabrics

In this recent case, Plaintiff Jolynn Zimple brought a lawsuit against Hancock Fabrics (“Hancock”) for claims of violation of the American with Disabilities Act (ADA) and the Iowa Civil Rights Act (ICRA).

The gist of her Complaint was that Zimple worked as the manager of the Waterloo, Iowa, Hancock store.  She claimed a prior right shoulder injury, and she was then injured during her employment, but was later released to work with restrictions not to lift over 20 pounds or lift anything above shoulder height.

Unfortunately, after she was released, Zimple had disagreements with her employer about whether she could do her job.  According to Zimple, she told her employer she was capable of working, possibly with an accommodation.  Hancock encouraged Zimple to either file workers’ compensation, take leave under the Family and Medical Leave Act (FMLA), or both.

Later, Zimple was placed on unpaid leave without having requested it (big no no).

The Claims

Zimple claimed that Hancock’s conduct in placing her on unpaid leave and not letting her return when the leave expired constituted a termination of her employment, was discrimination against her based on her disability, and was retaliation against her for seeking an accommodation.

Hancock sought to have the Court grant summary judgment in its favor, arguing that Zimple (1) could not perform the essential functions of her job, with or without reasonable accommodation (a good defense if you do it properly) and (2) that it had a legitimate non-discriminatory reason for her termination.

With respect to the first defense, the employer’s problem was that the record abound with disputes about just what were the essential functions of her position.  Three distinctly separate job descriptions were provided, and the employer didn’t really explore what Zimple could do (current, clearly defined job descriptions defining the essential functions are, for lack of a better word, essential).

Request for Accommodation Triggers the Employer’s Obligation to Engage in “Interactive Process”

Second, and more importantly, the employer failed to engage in the “interactive process” to develop a reasonable accommodation for the circumstances.  This was based on one email Zimple sent to her superior, wherein she requested the following:

With the cut in hours and with my permanent injury there are several times during my shift that there is only one person here with me. The problem is when we get busy I’m unable to help with the fabric and/or Deco I’m able to run the register but not necessarily the cutting. When I try to cut, I can cut for about 10 minutes then the pain in my shoulder starts and also my hand. We do have customers complain. What do you want me to do? Can you release some payroll to help with this problem if not what do you want me to do?

In the Court’s eyes, this was “a request to engage in an interactive process to develop a reasonable accommodation.”

The employer goofed because it never fully responded to this email request.  The employer instead denied her request to do payroll, but didn’t offer an alternative to it, didn’t show themselves as open to doing so, and did not offer to further discuss any other alternatives.

Instead, Hancock involuntarily placed Zimple on unpaid administrative leave and effectively terminated her when her leave ran out.  As a result, the Court determined that Zimple’s claims would proceed to a jury and denied Hancock’s request to have the lawsuit disposed of (via summary judgment) before trial.