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Odd ADA strategy means a jury will decide Xentel case

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Management Training

A decision by the U.S. District Court with jurisdiction in South Florida has spotlighted some sage ADA advice: Don’t be a jerk if you can avoid it.

Xentel, a charity fundraising firm, hired disabled veteran Mark Lerman to work in its call center. Lerman uses a wheelchair.

On his first day at work, Lerman found the firm’s restrooms weren’t fully wheelchair accessible. When he complained to management, he was told to use a neighboring company’s restrooms until a corporate representative got back to him.
When using the lavatory next door proved impossible, his only option was to return home to go to the bathroom.

The next day, the corporate rep called to say Xentel wouldn’t modify the restroom.

Lerman resigned and filed an ADA disability discrimination charge with the EEOC. When conciliation attempts failed, Lerman sued in the U.S. District Court for the Southern District of Florida.

Xentel tried a unique argument when it moved to have the case dismissed. It said going to the bathroom is not an essential job function. An incredulous court pointed out the obvious: That forcing Lerman to go home every time nature called interfered with every essential job function.

To review, Xentel hadn’t modified its restroom to conform to a law that has been on the books for 20 years. It limited the interactive accommodations process required by the ADA to a brief conversation saying it wouldn’t modify the restroom.

No wonder Lerman’s lawsuit got approval to move on to a trial.

The kicker: Guess what the real problem with the bathroom was. The sink, soap and towel dispenser were inaccessible. A bottle of hand sanitizer and a roll of paper towels probably could have solved the problem.

Final note: Who do you think will earn the jury’s sympathy: the disabled veteran or the obstinate employer?

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