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You don’t have to create employee’s ‘perfect’ job when accommodating disability

by on
in Employment Law,Human Resources

Some disabled employees go to great lengths to hide their conditions—perhaps out of pride or fear that they’ll be discriminated against. They may look long and hard for a perfect job that allows them to work without any sort of accommodation.

But what happens if the disabled employee who has, in effect, managed to secretly “self-accommodate” is moved to another position? Can she request that she move back to her old, perfect position?

Recent case: Jeanne Gratzel worked as a court reporter specialist for the state court system in DuPage County. The job, which required no actual courtroom reporting, was ideal for her because she suffered from urinary incontinence as the result of a difficult pregnancy. Her condition made it imperative that she get to a restroom within five minutes of feeling the urge to urinate.

Gratzel never told her supervisors that she was incontinent because she was able to manage her condition as long as she was working outside courtrooms. For five years, no one knew that she was taking frequent breaks.

Then the court system concluded that, to better manage workflow, all court reporters would rotate through the courtrooms and the back office where Gratzel worked. Her position was eliminated and the court reporter job descriptions were rewritten to include rotation as an essential function.

That’s when Gratzel finally revealed that she was disabled. She then asked the state court system to re-create her old position as a reasonable accommodation. It refused. Instead, the courts offered several alternatives, including not assigning her to jury trials and allowing her to discreetly signal to presiding judges that she needed a lavatory break.

Gratzel turned down those offers and continued to insist on having her old position back. That’s when the court terminated her.

Gratzel sued, alleging failure to accommodate.

The 7th Circuit Court of Appeals said the state court system had done nothing wrong. It didn’t know about Gratzel’s disability, so it couldn’t have purposely eliminated her position because she was disabled. When it offered to accommodate Gratzel, she refused. The ADA doesn’t require an employer to create a special position as a reasonable accommodation, and it doesn’t require accepting the employee’s suggested accommodation. (Gratzel v. Office of the Chief Judges, No. 08-3134, 7th Cir., 2010)

Final notes: The ADA Amendments Act of 2008 specifies that the elimination of waste is a substantial life activity. That means employees with incontinence issues are entitled to reasonable accommodations, which can include frequent breaks. Until the amendments passed, courts were split on whether such problems were covered disabilities. Some courts held that going to the bathroom is a major life activity; others said it was not.

Still, the operative word is “reasonable.” What may be reasonable for an office position may not be reasonable for a position on a factory production line or in jobs that require responding to emergency situations.

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