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.