Car salesperson did not request reasonable accommodation.
A salesman at an auto dealership took leave for a heart condition. He then
provided no information about his expected date of return. He made no
contact at all. After 15 weeks, his employment was terminated. He then sued
under the ADA. He claimed that sales positions are high turnover, and he
“didn’t think it would be of any concern” for the dealership if he was out for a
while. The court dismissed the case. A person with a disability has an obligation to keep the employer informed and to actively request an accommodation, such as leave of absence. An indefinite leave without information about
an expected return date is not reasonable. Jacoby v. Bethlehem Suburban
Motor Sales (E. D. Pennsylvania, 2011).
Bridge worker’s fear of heights is valid disability.
A bridge worker’s acrophobia resulted in a “no work over 25 feet high”
restriction. He was terminated because of failure to meet essential functions
of the job. However, a court found that his particular job
mostly involved ground work. Further, the employer
had a history of swapping duties depending on the
strength and weakness of the employee assigned
to a job. The employee’s accommodation request
was met with a supervisor’s statement, “I’ll tell
you right now we don’t grant requests!” The court
found evidence of failure to engage in the required
interactive process and insufficient foundation to
show an undue hardship to deny the accommodation
request. Miller v. Illinois Dept. of Transportation (7th
Cir., 2011).
Bob Gregg,
partner in Boardman
Law Firm,
shares his roundup of
diversity-related legal
issues. He can be
reached at rgregg@
boardmanlawfirm.
com
Firefighting is an essential function for fire-department job.
This would seem to be a logical conclusion. However, a fire investigator’s
primary work is usually after the fire is over and cold. Because of a heart
condition, the investigator could not engage in the high-intensity physical
and emotional stress of active fire suppression and requested the accommodation of not being required to do so. The department declined the request.
The employee took early retirement and then sued under the ADA. The court
ruled for the department. Because of budget cuts, the department had a lean
staff and all firefighting-qualified employees had to be able to fill in for short
staffing or for multiple fire situations. There was no operational latitude for a
firefighter-qualified person who could not engage in that duty when needed.
Cremeens v. City of Montgomery (11th Cir., 2011).
Regular, predictable attendance is an essential function.
A teleservice employee with serious food allergies that were triggered
without notice had frequent, unpredictable absences. He requested a flexible
schedule in which he would not be required to have consistent attendance.
The employer declined, informing him that his repeated absences were seriously harming the mission of his position. He sued under the Rehabilitation
Act. The court ruled for the employer, finding that for that position, regular
attendance was an essential function; “attending whenever able” and ongoing absence without prior notice was not reasonable. Lang v. Social Security
Administration (S. D. California, 2011). I
To read more legal articles from Bob Gregg, visit
www.DiversityInc.com/legal-issues
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