In its Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act issued in 2002, which hasn’t yet been withdrawn or updated as a result of the passage of the Americans with Disabilities Act Amendment Act, the Equal Employment Opportunity Commission (EEOC) opines that an employer is generally not required to provide a reasonable accommodation to an employee who violates a conduct rule where the consequence of the violation is the termination of employment.
But what happens when an employer denies an employee the reasonable accommodation of a policy modification and then uses that same, underlying policy as a basis to terminate the employee’s employment?
Yesterday, the Sixth Circuit answered that question by affirming a jury verdict in favor of an employee who was terminated for violating Dollar General’s “anti-grazing” policy, a policy to which the employee sought (but was refused) a modification due to her diabetic condition. See EEOC v. Dolgencorp, LLC, No. 17-628 (6th Cir. Aug. 7, 2018).
The facts of the case are straightforward. The employee was a diabetic who asked her manager for permission to keep orange juice at her cash register. The manager refused the request citing the company’s anti-grazing policy, and apparently failed to engage in any further dialogue about the possibility of an alternative accommodation.
During a store audit to address employee theft and shrinkage issues, the employee admitted that on two separate occasions when she was working alone in the store, she’d suffered a hypoglycemic episode, taken a bottle of orange juice from the store cooler, consumed it, and then paid for it. In response, she was fired.
The employer appealed a jury award of over $700,000 and in a We are not amused decision, the Sixth Circuit affirmed the award.
First, the Court rejected the employer’s “accommodate thyself” defense because the employer failed to provide the employee with any reasonable alternative to keeping orange juice at her register. Second, the Court made clear that “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him.” Third, the Court found that “failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination.” (Emphasis added).
The decision underscores the need for employers to carefully evaluate accommodation requests to determine whether they can, among other things, make policy modifications absent an undue hardship.