By now, you know the law says employers must make “reasonable accommodations” for an employee’s qualifying disability. But, as a new case shows, don’t be so quick to simply transfer such employees to other positions. The Americans with Disabilities Act (ADA) and many state laws require you to first try to accommodate disabled workers in their current jobs …

CASE IN POINT: A Wal-Mart in Oregon hired Heidi Austin as a part-time fitting room associate. She was responsible for assisting customers trying on clothes, re-hanging clothes, answering phones and attaching price tags. Austin has cerebral palsy and uses a wheelchair.

One day, Austin asked to use an empty shopping cart to assist her with her duties. If a phone call came in, she could put the clothes she was handling in the cart and answer the phone. She received approval from several supervisors but, ultimately, a senior supervisor blocked her request. Austin also asked permission to pre-hang clothes while in the fitting room and return them to the floor as time permitted. The senior supervisor rejected this accommodation as well.

In the ensuing months, that senior supervisor wrote Austin up for poor performance. But Austin claims she also was targeted by other supervisors. Allegedly, a supervisor repeatedly yelled at Austin and “threw clothes back” at her. And Austin said that when her wheelchair once ran over a hanger and became stuck, a supervisor called her “stupid” for asking for help.

Although the senior supervisor rejected Austin’s accommodation requests, she did offer to transfer Austin to another position within the store. Austin declined the move. At her three-month review, Austin was criticized for her performance, but was rated as “meeting expectations.” She later received written warnings for having a messy dressing room and improperly processed returns. After two warnings for break-time violations, Wal-Mart fired her.

Austin sued for disability discrimination under the state disability law, claiming Wal-Mart failed to engage her, as required, in an “interactive process” to find a reasonable accommodation for her fitting room job. Wal-Mart argued that it had met the interactive-process requirement by offering Austin another position in the store.

Note: While the “interactive process” is not rigidly defined in the law, it does require back-and-forth communication between the employer and employee to show good-faith efforts of compliance. (Austin v. Wal-Mart Stores Inc., D. Or., Nov. 14, 2008)

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

The court told Wal-Mart to take those defenses out of the cart—they weren’t buying them.

Reason: Wal-Mart supervisors made “minimal efforts” to help Austin do her job in the fitting room, the court said. Although “reassignment to a vacant position is a form of reasonable accommodation … it is a last resort and should only be considered once the employer has attempted to reasonably accommodate an employee in his or her current position.” 

The court sent the case to the jury to check out and decide if the employer engaged in “good-faith efforts” to make reasonable accommodations.

3 Lessons Learned …Without Going to Court

1. Train supervisors to listen for accommodation requests. Once again, we see a case in which the employee is as direct as it gets when asking for a disability accommodation. Managers and supervisors must be trained to listen for obvious requests as well as for the more subtle ones.
2. Consider each request. The required interactive process requires a back-and-forth “let’s try to work this out together” communication process. Don’t miss the process—have a policy and procedure in place to be used.
3. Try. What’s the harm in trying the employee’s suggestion first to see if it works? If the accommodation is “reasonable,” it may be the best solution to resolve the situation. Certainly, it couldn’t be any worse than a non-refundable lawsuit.