A recent decision from the U.S. Court of Appeals for the Sixth Circuit provides a strong lesson in the need for employers to fully explore an employee’s request for a reasonable accommodation and to when necessary be flexible in applying certain workplace policies.
In the matter of EEOC v. Dolgencorp, LLD dba Dollar General Corp., the EEOC brought a case against Dollar General on behalf of a former store manager with diabetes. The employee occasionally experienced hypoglycemic episodes at work. As a store sales associate, whenever she experienced an episode she went into the break room to get an orange juice from her cooler. Later, as a store manager, she often worked alone at the store and could not go to the break room. She asked her manager if she could keep orange juice at her register so she could drink it whenever she experienced an episode. Her manager said that was not allowed under store policy.
The employee had hypoglycemic episodes in late 2011 and early 2012. During both times, she drank a bottle of orange juice from the store cooler and then paid the $1.69 cost. She told her manager both times.
During a store audit for employee theft and merchandise loss issues, the employee admitted that she had drank orange juice two times before paying for it when she had an episode. Dollar General fired her, concluding that she violated its “anti-grazing policy” whereby employees could not consume merchandise from the store before paying for it.
The EEOC claimed that in firing her, Dollar General violated the Americans with Disabilities Act. A district court jury agreed and awarded the employee $277,565 in damages. The district court awarded $466,999 in attorney fees and expenses. The Sixth Circuit upheld the verdict and the fee award.
Dollar General argued that it had no duty to accommodate the employee’s diabetes because she could treat her episodes through eating certain foods or taking glucose tablets. Indeed, Dollar General had rejected the employee’s request for a reasonable accommodation (to keep orange juice at the register) and did not explore with the employee her limitations and possible accommodations. Dollar General also claimed that any form of glucose could work (for example, the employee could open and pull out honey from a packet). The employee presented evidence that such forms were not as effective.
The Sixth Circuit found that the jury reasonably concluded that Dollar General failed to provide reasonable alternatives to keeping orange juice at the register and did not effectively explore a reasonable accommodation. It also found the jury reasonable in concluding that Dollar Generals’ policy prohibiting employees from eating or drinking except during breaks prohibited them from consuming any food products (including honey packets) at the register. Lastly, it found that Dollar General could not use the anti-grazing policy as a legitimate non-discriminatory reason for termination when at the same time it was using it to deny her reasonable accommodation request.
The Dollar General opinion provides a good example for employers of the consequences when a reasonable accommodation is not fully explored and an employer is unwilling to make an exception to a policy when there may be an emergency need to do so. Whenever an accommodation is requested and there is no question that the employee has a covered disability under the ADA an employer should at a minimum:
- Determine how the accommodation request actually affects the employee’s ability to perform the job duties, including how and to what extent it may affect operations;
- Communicate with the employee about the requested accommodation and alternatives;
- If the decision is made to deny a requested accommodation, ensure that the reasons why the accommodation cannot be made were fully explored and can be explained in a common sense manner (in this case the employer had to explain why it was not permissible to have a drink at the register but permissible to have enough food within arm’s reach to stop a reaction); and
- Think very carefully before terminating an employee when they have deviated from a policy due to a health emergency.
This blog post is published by Dickinson Wright PLLC to inform our clients and friends of important developments in the field of employment law. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in here.
About the Author:
David R. Deromedi is a Member in Dickinson Wright’s Detroit office where he assists clients in all areas of labor and employment law. He has primary responsibility for all wage and hour and employee health and safety matters for firm clients and is primary counsel to Japanese employees doing business in the U.S. for employment law and employment relations issues. He can be reached at 313-223-3048 or firstname.lastname@example.org and you can visit his bio here.