When an employer grants a reasonable accommodation to a disabled employee, what happens if an uninformed supervisor later fails to provide that accommodation?
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Disability Law
Update
Grocer Liable After
Uninformed Supervisor Fails
To Observe Disability Accommodation
By Christopher W. Olmsted
When an employer grants a reasonable accommodation to a disabled employee, what happens if an uninformed supervisor later fails to provide that accommodation? In a recent California case titled A.M. v. Albertsons LLC, that very thing happened, and the employer was held liable for failing to provide an accommodation. The case offers important lessons for employers who offer accommodations to disabled employees.
Grocery Store Offers Accommodation
In the Albertson’s case, the affected employee, referred to as “A.M.” to protect her identity, took a medical leave because she had been diagnosed with cancer of the tonsils and larynx. She underwent chemotherapy and radiation treatment. The treatment affected her salivary glands, which left her mouth very dry. To counter this, A.M. had to constantly drink water. As a result of the large volumes of water she consumes, she has to go to the bathroom to urinate frequently.
A.M. returned to Albertsons after her cancer treatment. She needed to have water with her at all times when she was working and had to be able to go to the bathroom when necessary—sometimes as often as every 45 minutes. Normally, Albertsons did not allow its employees to have beverages at the checkstand, but when she returned to work, she told the managers what she needed. A.M. was told that this was not a problem, that she was to let the managers know when she needed to go to the bathroom and they would cover for her. For about a year, this arrangement worked with no problems.
An Uninformed Manager Blows It
Then one day in February 2005, things went wrong. A new assistant manager had been working in the store for a couple of weeks. The manager was never informed of A.M.’s accommodation. The manager was in charge of the store one day, when A.M. asked to take a bathroom break. The manager told her to wait because a delivery truck was arriving. A.M. later asked again, but the manager was too busy to respond. A.M. ended up wetting herself. She was very traumatized and left work.
After another leave of absence lasting about four months, A.M. eventually returned to work, but not before a struggle with management to receive a shift that accommodated her medical needs and a new need for therapy sessions. Eventually she was given the needed accommodations.
The Lawsuit
About 1 ½ years after the incident, A.M. filed a lawsuit. She alleged a cause of action for failure to provide her with reasonable accommodations for her disability. She also alleged a failure to accommodate her disability when she became available to return from the leave following the incident.
The jury found for A.M. on the cause of action for failure to accommodate her in February 2005. It found that Albertsons knew that A.M. had a physical condition that limited a major life activity; it failed to provide reasonable accommodation for that condition when the manager failed to allow her to take a break; and that failure was a substantial factor in causing harm to A.M. The jury awarded A.M. $200,000 in damages—$12,000 for past lost wages, $40,000 in future medical expenses, and $148,000 for past emotional distress.
Albertson’s Failure To Advise The Supervisor
Albersons appealed the case. The appellate court upheld the trial court result.
Albertsons had a rational argument, but the appellate court rejected it. Albersons asserted that the bathroom break incident must be viewed in the context of many months during which Albertsons did accommodate A.M.’s disability. The accommodation was provided for over one year without incident. According to Albertsons, the incident was A.M.’s fault. If she had such an urge to urinate, she should have just left her workstation and gone to the bathroom. Or she should have told the new supervisor about the accommodation.
The appellate court concluded that the employee had no duty to remind the employer, through the supervisor, of the need for accommodation.
Under the FEHA, an employer that fails to make reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice. It is also an unlawful employment practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one.
The court rejected Albertsons’ argument that the employee had an ongoing obligation to engage in the interactive process by informing the manager of a need for accommodation.
“None of the legal authorities that Albertsons cites persuade us that the legislature intended that after a reasonable accommodation is granted, the interactive process continued to apply in a failure to accommodate context.” The court reasoned: “To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision.”
Albertsons also argued that its failure to accommodate was trivial, because it constituted a single incident in the context of a much longer period of successful accommodation beginning in January 2004 when A.M. returned to work after her cancer treatment. In essence, Albertsons reasoned that the FEHA allows for at least one failure to accommodate, if a pattern of successful accommodation also is shown.
The court flatly rejected this argument. “The employer’s interpretation would be inconsistent with the statutory purpose to require employers to make reasonable accommodation for their employees’ physical disabilities.” The court observed that “as is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated. When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity.”
The court noted that Albertsons had a chance to convince the jury, but it failed. “To the extent that a single failure to accommodate could be trivial within the context of a larger pattern of accommodation, we note that Albertsons argued this possibility to the jury. By its award to A.M. of $200,000 in damages, we infer that it found the failure to accommodate to be substantial, not trivial.”
Practical Implications
The court’s ruling seems a bit harsh. Albertson’s should be lauded for providing the employee with an accommodation. One inadvertent mistake should not lead to six figure liability. And yes, wetting one’s self in public is humiliating, but the employee ought to have taken some personal responsibility to avoid letting that happen.
Nevertheless, the court’s ruling is California law. Employers need to ensure that all managers of individuals with disability accommodations are aware of the accommodations. In the Albertson’s case, the company maintained an appropriate process for granting disability accommodations, but it lacked a uniform practice of notifying new store managers. On the day of the incident, had the new manager known about A.M.’s need for frequent bathroom breaks, the lawsuit could have been avoided.
When managers are frequently reassigned, as can be the case with store management, assuring that everyone is up to speed can be challenging. Careful attention should be given to implementing a failsafe system to notify all managers of the accommodation.
Related Article:
School Lawfully Rejects Instructor’s Request For Disability Accommodation.
Download entire November 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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