How Much Does It Cost To FAIL To Accommodate a Disability?
Today is the 31st anniversary of the passage of the federal Americans with Disabilities Act. So it seems appropriate to celebrate by reviewing some key provisions of the ADA.
Under the ADA, employers are required not only to avoid discriminating against employees (and applicants with a disability, but also to provide reasonable accommodations for employees with disabilities. For the last 31 years employment lawyers have been trying to help employers understand what is meant by "reasonable" and "accommodation." Employers have a defense to the failure to accommodate, when a proposed accommodation is an "undue hardship" and employers have been testing the limits of that defense as well.
Often, an employer wants to consider the cost of an accommodation in determining whether it is "reasonable." While cost may be a factor in assessing undue hardship, it is fairly hard to establish the undue hardship defense based on cost. For a very large company, the cost of accommodation must be very significant to meet the test. But failing to accommodate may be even more costly.
Walmart recently learned that the failure to accommodate can be a very expensive proposition. Earlier in July, a federal jury in Wisconsin ordered Walmart to pay $125 MILLION dollars to an employee for whom Walmart refused an accommodation. The employee had Downs syndrome, had worked for Walmart for many years. Walmart changed her schedule and she requested an accommodation that would work for her, and Walmart terminated her. Even though the amount of the award will be reduced because of caps on the damages allowed for this type of claim, between the damage award, and costs and attorney fees to litigate, Walmart will pay a significant amount of money because of the refusal to accommodate the employee's disability.
Walmart is not the only employer who has made this expensive mistake. It seems like every week we read about an employer who is sued for disability discrimination for failure to accommodate, like UPS in this case. In another case, Union Pacific Railroad failed to accommodate a deaf train conductor, and after the Seventh Circuit ruled last year that there was sufficient evidence to go before a jury, the jury recently awarded $44 MILLION dollars to the employee.
So what is the best thing for an employer to do? When an employee reports that they need some assistance to do their job, listen to them. Use an interactive process to explore what the options are. Consult experts, like seeking additional medical advice on possible accommodations, or consult the Job Accommodation Network for ideas on possible accommodations. And do not let prejudices or biases about what the employee can and cannot do control the decision-making process, nor be deterred by the fact that the accommodation may cost a small amount of money.