Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits

Pull up a chair ... or a lawsuit

By Mindy Chapman, Esq., Mindy Chapman & Associates
10/10/2008 - 10:30am
ADA

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

Do some of your employees have medical conditions that require them to sit while others have to stand? Co-workers may gripe about unfair treatment if you provide a stool or chair for that worker. But a new court ruling shows why “unfair” actions are better than illegal ones …

Case in Point: Pearlie Talley worked as a store cashier for eight years. She suffered from arthritis, plus had a history of torn knee ligaments and heart surgery. Talley slipped on a waxed floor one day and injured her leg. She couldn’t stand for more than 15 minutes without extreme pain, so she started using a stool at her cashier post. Her manager took the stool away because co-workers were crying “unfair treatment.”

Eventually she brought in a doctor’s note verifying that she needed the stool as an accommodation to do her job. Her manager ignored the note. Instead, he insisted on having a meeting with her and the district manager to resolve the situation. But she was never contacted about any meeting. Soon after, Talley was removed from the work schedule and ultimately terminated.

Talley sued, claiming the company violated the Americans with Disabilities Act (ADA) by failing to provide a reasonable accommodation for her disability. (The ADA protects qualified individuals who can do the essential functions of the job with or without a reasonable accommodation. President Bush recently signed legislation that expands ADA protections to millions more Americans.)

In court, Talley argued that the store had provided stools in the past to other employees in need. Plus, she said, it failed to engage in an “interactive process” to discuss possible accommodations, as required by the ADA. Co-workers testified that she appeared to be in severe pain when at the register without a stool. (Talley v. Family Dollar Stores of Ohio Inc., 6th Cir., 9/11/08)

What happened next … and what three lessons can be learned?

A lower court dismissed her case. But the appellate court told the employer to “Have a seat” ... in the courtroom that is. The case was sent to a jury to decide.

The court said that a jury may conclude that bias occurred, "when an employee makes a repeated request for an accommodation and that request is both denied and no other reasonable alternative is offered."

Arthritis is the nation’s most common cause of disability. The National Center for Disease Control (CDC) estimates 46 million U.S. adults (about 1 in 5) have arthritis. And as the U.S. population ages, these numbers are likely to increase sharply and a good proportion of adults will have limited activity as a result.

3 Lessons Learned … Without Going to Court

1. Don’t appear cold-hearted. The ADA is an employee-friendly law—and it just got friendlier. Courts are sympathetic to employees’ needs to stay productively employed, especially in this economy. If the cost of an accommodation is reasonable, employers who fail to provide assistance will look very unreasonable … and almost inhumane.

2. Be consistent by centralizing compliance. In this case, the organization had provided such an accommodation in the past and if the decision-makers knew that, the decision to provide a stool would’ve been a no-brainer.

3. Don’t blow off employees. The court noted that the employer blew off any further contact with the employee after she requested a reasonable accommodation. The ADA requires employers to engage in an interactive process. The court stated, “While it is true that the plaintiff cannot reject a reasonable accommodation, she was not offered an accommodation that would have allowed her to work her shift without pain.” Talk with your employees and discuss potential options and solutions.

Tags: ada, employees, hr, reasonable accommodation

Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits