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A Starbucks employee who was also unfortunate enough to be a dwarf was terminated after asking for a stool to perform her job.  Starbucks claimed the stool would present a danger to other employees or customers.  The EEOC has filed a federal lawsuit against Starbucks under the Americans with Disabilities Act for refusing to provide a reasonable accommodation to the employee and terminating her.

I try to give the benefit of the doubt to all parties--at least initially--but I'm not certain what Starbucks was thinking.  This may be a good case of "what not to do" when confronted with a request for a reasonable accommodation.

What should Starbucks have done?  At the very least, it should have had a discussion with the employee before apparently acting so rashly.  At the most, it should have provided the stool and let her complete her tasks and keep her job.

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The Americans with Disabilities Act protects individuals with disabilities from adverse employment action. The recent amendments to the ADA expanded the scope of disability, making it more likely that people can and will be considered disabled for the purposes of the Act. An employee considered to be disabled under the Act may be entitled to a reasonable accommodation. At times, the accommodation will be a direct conflict of your company's written policies. 

For instance, your attendance policy requires employees to call in at least 30 minutes prior to their start-time if they are sick. Violation of the policy may result in disciplinary action. However, a disabled employee may periodically need to be late due to the disability but not know 30 minutes in advance of their start-time. You accommodate their disability by allowing them to call in as soon as practicable without disciplinary action. That seems pretty simple and harmless.

What about the employee with Tourette's Syndrome or bipolar disorder which may cause the employee to lash out with obscenities, derogatory remarks or threats of violence during an episode? The conduct would be considered disability-caused conduct, but what is an employer's duty to accommodate such conduct?

While there is no clear line (did you actually expect one in employment law?) and each case must be handled on a case-by-case basis consistent with the facts and symptoms of the employee's disability (of course) a recent California case held that threats of violence made by an employee during a manic episode were not protected disability-caused conduct and the employer was justified in terminating the employee for her conduct despite being caused by her disability.  The court stated that "there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers".  Referencing the EEOC Enforcement Guidance manual, the court further stated that "nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability." The termination was based on a legitimate non-discriminatory reason despite being disability-caused conduct. 

As with all high-risk terminations it's important to contact your attorney to discuss all issues prior to terminating or disciplining.

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The Americans with Disabilities Act is a federal law which protects disabled employees from discrimination. Chapter 216 of the Iowa Code provides protection for disabled workers as well.

A covered employer under the federal law means any business with at least 15 employees. The Iowa law covers all businesses with employees.

Both the federal and state laws protect qualified individuals with a disability against employment discrimination. Disability includes a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Much has changed with respect to who qualifies as a having a physical or mental impairment. A good rule of thumb is to start with the assumption that the person meets the definition of disabled and work from there. If you have questions contact your attorney. The other two definitions of disabled—having a record of such an impairment or being regarded as having such an impairment—generally go unnoticed, but it is important to remember that even someone without a disability can be covered under these laws. 

A qualified individual is one who can perform the essential functions of the job with or without a reasonable accommodation. For this reason, identifying the essential job functions with job descriptions is important.

If a person is disabled under the ADA or Iowa law, the employer is required to reasonably accommodate the individual unless it would impose a great hardship on the employer. It is important for employers to discuss with the employee reasonable accommodations that will assist the employee in performing his or her job duties. Refer to my previous post, if you are having trouble identifying a reasonable accommodation. Remember you do not necessarily have to accept the employee’s suggestion if a different accommodation will allow that person to perform his or her job duties.

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 The ADA requires employers to make “reasonable accommodations” for qualified individuals with a disability.  (“Disability” is a broadly defined term which can encompass a number of impairments.  Determining whether some is disabled for the purposes of the ADA can be difficult. If you have questions whether an employee may be covered by the ADA you should contact your attorney). A reasonable accommodation can include the following:

·         Making existing facilities used by employees readily accessible to and usable by persons with disabilities;

·         Job restructuring, modifying work schedules, reassignment to a vacant position;

·         Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

But what else can you do? How do you know what equipment or devices exists? Where do you find the materials you need? The Job Accommodation Network (JAN) was created to help assist employers, employees and other interested people in answering these questions. The JAN staff can help businesses by suggesting reasonable accommodations and assisting with the implementation of reasonable accommodations.  Private businesses may access JAN services by telephone, email and on-line tools. It provides helpful and practical information and guidance for employing and retaining individuals with disabilities.

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