Don’t Deny a Reasonable Accommodation that Exists – Really!

By Fiona Ong - Shawe Rosental LLP

April 19, 2023

So many EEOC lawsuits – so many lessons… Some recent announcements from the Equal Employment Opportunity Commission (which is the federal agency that enforces federal anti-discrimination laws) provide some lessons for employers on possible reasonable accommodations under the Americans with Disabilities Act – specifically, when such accommodations already exist for the employee in question or their co-workers.

Now, as I’ve said previously, the EEOC’s press releases about lawsuits that they’ve filed against various employers are clearly one-sided. I’m sure the employer (in most instances) has a different take on the situation, and I’ve certainly defended my share of cases before the EEOC where I thought they were being unreasonable). But, taking the EEOC’s descriptions at face value, there are lessons to be learned.

As most employers (hopefully) know, the ADA requires employers to provide reasonable accommodations to employees with disabilities to enable them to perform their essential job functions or to enjoy the benefits and privileges of employment – unless the accommodation imposes an undue hardship on the employer. And that “undue hardship” standard is a high one.

In the first case, the EEOC announced that a restaurant agreed to pay $55,000 to settle a pregnancy discrimination lawsuit. According to the EEOC, a hostess had been provided with a stool that she could use in between serving customers to alleviate foot and back pain due to her pregnancy. (Ok, that sounds good). But then her managers took the stool away and “demanded” that she bring in a doctor’s note. And when she did so, she was then fired. (Hmmmm…).

(I note that this case was brought under the Pregnancy Discrimination Act, which is an amendment to Title VII. The PDA requires employers to treat pregnant employees the same as other employees who are unable to work for non-pregnancy-related reasons – which could include providing accommodations. I further note that, although the ADA was not invoked here, pregnancy-related limitations can rise to the level of a disability under the ADA, which would then require reasonable accommodation absent an undue hardship on the employer. And of course, there are many states that have pregnancy accommodations laws).

In the next case, the EEOC has sued a payment processing company under the ADA. A call center employee with a disability made repeated requests for remote work as a reasonable accommodation due to her increased health risks related to COVID-19. Her requests were denied and she took medical leave to avoid exposure. By the time her leave ended, most employees in her department were working remotely (the new workplace!), but her request to do so was still denied (???) and she was forced to resign.

Finally, in the last case, the EEOC has sued “a nonprofit providing programs for people with disabilities and others to build self-reliance through educational, therapeutic, and employment services” for violating the ADA (oh, the irony!). The employee had worked for the employer as a janitor for seven years with praise from high-level managers. She developed a degenerative hip disease, and could no longer use a backpack vacuum. She requested to use an upright vacuum instead. The employer denied her request, although it permitted employees at other customer sites to use upright vacuums. In addition, the employer refused to allow her to work without a “100% release” from her doctor, and the employee was fired.

This collection of recent lawsuits offers some important lessons for employers, including the following:

•  If an employee has already been provided with an accommodation (particularly one that is not that onerous), don’t take it away unless you have a really good reason (i.e. “legitimate business reason”) for doing so. Saying that it’s against policy (unless the policy exists for safety/health or significant operational reasons) or creates a poor impression for customers will likely not be considered a good reason (I don’t know if the employers here made those assertions, but those are reasons that frequently come up).

•  If, as an accommodation, an employee asks for something that is being provided to other (non-disabled!) employees in similar positions, the employer likely should provide it. If other employees have it, the employer is going to be hard pressed to establish that the accommodation is unreasonable or an undue hardship.

•  An additional note on the previous point – as I’ve previously discussed, an employee doesn’t get to choose the accommodation. If there are several possible accommodations, the employer may choose, as long as the accommodation is reasonable and effective. It doesn’t even need to be the most effective one. BUT, if other employees are allowed to do what is being requested as an accommodation, an employer who denies the accommodation request and selects a different accommodation will run the risk of liability for a discrimination claim – that they are treating the employee with a disability worse than those without.

•  Do not require a “100% release” to return to work. That is a violation of the ADA. An employee doesn’t have to be 100% able to do the job – they just need to be able to perform the essential functions (and not necessarily the marginal functions) of the job – with or without a reasonable accommodation.

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