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Don’t wait for disabled to ask: Accommodation is two-way street

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in Discrimination and Harassment,Firing,Human Resources,Leaders & Managers,Performance Reviews

Ray Birton, a cart gatherer and stockman at a Missouri Wal-Mart, occasionally forgot instructions and didn't clock in and out correctly, resulting in paycheck errors.

Birton's mother gave his manager a letter from a pediatrician explaining that her son had memory problems from a previous head injury. His mom asked that the paychecks be fixed and that the manager remind him to clock in.

After that, co-workers helped Birton with the time clock and wrote down his schedule when necessary. But his poor performance continued on other duties, such as forgetting to gather carts, so he was fired. He sued, alleging discrimination under the Americans with Disabilities Act (ADA).

Wal-Mart argued that the firing was legal because even after it made the requested accommodation for his time-clock problems, Birton still wasn't able to do the essential functions of the job. He never requested any further accommodations, Wal-Mart said.

A state court rejected this argument and let the case go to trial. It said a reasonable jury could find that the disclosure of the worker's memory problems and the request for time card reminders were enough to put Wal-Mart on notice of his need for further accommodation. He didn't have to make a specific accommodation request. (Birton v. Wal-Mart Inc., No. 4:01CV118 RWS, E.D.Mo., 2002)

Advice: This ruling doesn't require you to read your employees' minds. It does, however, say you have an obligation to get involved in accommodations once you're aware of an employee's disability and know it may affect his ability to perform his job. That's true even if the worker doesn't ask for help.

Bottom line: While it's true that your obligation to accommodate a disability doesn't usually start until the employee speaks up, finding an accommodation is an interactive process between both parties.

Finally, if you plan to argue that an accommodation request is impossible because it would create an "undue hardship", too expensive, too difficult or too disruptive, realize that the burden of proof is on you to make the case. Here, Wal-Mart could have restructured his job. That would have been inconvenient, but inconvenience is not considered an undue hardship, even if it means other employees do more work than the disabled worker.

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