Making accommodations without a request

Wal-Mart's pharmacies are in the news again for all the wrong reasons.

Last year, a jury decided, according to the Boston Globe, it discriminated against a female pharmacist in Massachusetts, awarding her $2 million in total damages.

Last month, the Wal-Mart agreed to settle a disability discrimination lawsuit brought by the EEOC for a pharmacy technician who claimed Wal-Mart did not accommodate his disability caused by a gunshot wound. The settlement included a $250,000 payment and agreement to conduct ADA training. The quote from the employee (in the EEOC press release) said it all: "After beating all the odds -- surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases -- I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could ‘no longer accommodate my handicap needs.'"

Last week, the federal court of appeals that decides cases from New York upheld a $900,000 judgment (the jury verdict actually awarded $7.5 million) in a disability discrimination action against Wal-Mart by a 19 year-old pharmacy employee who had cerebral palsy.

Last week's decision provided an interesting lesson for two other reasons. First, the pharmacy supervisor handled the situation poorly (in the jury's view) by her attitude toward the obviously disabled employee, by her refusal to deal with the employee after she concluded he would not "work out," and by her comments about the situation to the store manager who then relayed them to the employee's father (saying to the store manager, I'll reinstate him but "if we get sued, it’s on you" was not the smartest thing in the world comment to make.)

More interesting, however, was the court's holding that Wal-Mart discriminated against the employee by not making a reasonable accommodation to his known disability even though the employee never requested any accommodation. The decision held that where the disability is "known" to the employee, the employer must take the initiative to invoke the "interactive process" of determining whether a reasonable accommodation will permit the employee to perform the essential functions of the job.

The court didn't go into what further the employer must do but the message is clear. When the employee is not able to do some essential (or non-essential function) and the employer knows the employee has a disability (because it is obvious), the employer must act without waiting for the employee to request an accommodation.

Whether other courts will agree remains to be seen. The general rule is that employees must first request an accommodation but, this court held, where the disability is obvious, the employer cannot safely wait for the employee to make the first move.

(I'm not here to bash Wal-Mart. It is a huge corporation with a number of employees. It is going to be sued a good bit and it is going to lose (or settle) a good bit of those lawsuits. And, the settlement and court awards are "news," while the dismissals are buried in the final pages of the business section if reported at all.