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2nd
Brady v. Wal-Mart Stores (2nd Cir 07/02/2008)
LINK

Brady sued the employer, asserting (among other things) disability discrimination (disparate treatment, hostile work environment, and failure to reasonably accommodate) claims under the Americans with Disabilities Act (ADA) and state law. Brady prevailed in substantial part after a jury trial, and accepted remittitur. The 2nd Circuit affirmed.

Brady suffered from cerebral palsy. Moreover, there was evidence on the record that it was readily apparent that he suffered from a disability. However, Brady never requested an accommodation and in fact testified that he didn't think he needed one. The 2nd Circuit has previously held that:

"[g]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed."

Prior to this case, the 2nd Circuit had not been presented with an opportunity to consider when that general rule might be inapplicable. Taking advantage of that opportunity here, the court held:

"an employer has a duty to reasonably accommodate an employee's disability if the disability is obvious - which is to say, if the employer knew or reasonably should have known that the employee was disabled." The court noted that its approach "is consistent with the statutory and regulatory language, which speaks of accommodating 'known' disabilities, not just disabilities for which an accommodation has been requested."

Blog Post of Meites, Mulder, Mollica & Glink
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Brady v. Wal-Mart Stores, Inc., No. 06-5486 (2d Cir. July 2, 2008)
Topic: Daily Developments in EEO Law

What happens when a disabled 19-year-old takes on the international retailing giant, and wins!

Wal-Mart once again finds itself in trouble for mistreating an employee with cerebral palsy (and you would think, by now, that the company would have a special chapter in its HR manual covering just this one disability -- see EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007)). At a jury trial, the testimony showed that Patrick Brady had two years' experience working at a local pharmacy receiving prescriptions and dispensing prescription drugs. The CP affected all of his motor skills and thinking, but he was able to navigate the job without incident.

When he went to work at the local Wal-Mart as a pharmacy assistant, his supervisor immediately perceived him as incapable (despite that he made no errors and never required assistance from other employees). The supervisor (named Chin) did not allow Brady to return for a second day at work at the pharmacy counter: "When he returned to the store the next day, Chin 'seemed visibly annoyed to see [him], as if she didn't want anything to do with [him].' Chin told him to go to the personnel department."

"The personnel manager told Brady that the only available job was collecting shopping carts and garbage in the parking lot. Brady felt that this job was 'degrading' because 'it really doesn't involve any skill or knowledge and . . . I felt that they put people out there that couldn't possibly do anything else.' The parking lot job had a different uniform, and Brady understood it to be a demotion. He also testified that, because of his disability, he was less suited to it than he was to working in the pharmacy.

"After Brady's transfer to the parking lot, his father came to the store and spoke with the assistant store manager, telling him that he hoped his son's disability had not played any role in the transfer. The assistant manager promised to investigate, and later James Bowen, the store manager, called Brady's father and, according to Brady's father, told him 'that he didn't think that [Brady] had a fair chance at this job; that [Chin] didn't give him a fair chance and she didn't handle it the right way . . . . And he told me what Ms. Chin had said, that [Brady] wasn't fit for the job. And then she said that, 'I'll put him back in the pharmacy, but if we get sued, it's on you.'"

Only after his parents intervened, the store assigned Brady to the grocery department, but never allowed him to return to the pharmacy. The grocery job came without training or a uniform, and with shifts that conflicted with Brady's school schedule. Brady quit. The jury found that Wal-Mart vioolated the ADA and New York state law (on discrimination, harassment and reasonable accommodation theories), and awarded $2.5 million in compensatory damages (remitted to $600,000), $9,114 in economic damages, $5 million in punitive damages (capped at $300,000), and $2 in nominal damages.

Affirming the verdict, the Second Circuit held that (1) the jury could find that the transfer out to the parking lot was an adverse employment action, even though it did not affect his (slave) wages or (paltry) benefits; (2) an employer might be obliged to enter into the interactive process to provide a reasonable accommodation, even if the employee does not perceive him/herself as disabled, if the "disability is obviously known to the employer"; (3) the district court did not err in allowing the employee to introduce evidence of a consent decree in EEOC v. Wal-Mart Stores, Inc., No. S99 CIV 0414, 2001 WL 1904140 (E.D. Cal. Dec. 17, 2001), which "required Wal-Mart, inter alia, not to engage in any employment practice that would violate the ADA, to train Wal-Mart employees in ADA compliance, and to formulate accurate job descriptions that are consistent with actual job requirements"; and (4) the damage awards could be sustained under federal and state law.

Court Places Accommodation Responsibility on Employer
By Yesenia Salcedo, 9/1/2008 Issue of Inside Counsel
LINK

After working two years at a local pharmacy receiving and dispensing prescription drugs, Patrick Brady, a 19-year-old who has cerebral palsy, took a job as a pharmacy assistant at a Centereach, N.Y., Wal-Mart.

During his first shift in the pharmacy department, the pharmacy manager became concerned with Brady's slow pace. The next week Brady was transferred to collecting shopping carts and garbage from the parking lot.
When he tried to get his pharmacy position back, his request was denied and he was moved to the food department instead. Discouraged, Brady quit.

He then sued Wal-Mart and his former boss Yem Hung Chin under the ADA, alleging Wal-Mart discriminated against him because of his disability and failed to accommodate his disability.

While he was employed by Wal-Mart, Brady never asked to be accommodated, and he later testified that he did not think he needed an accommodation. But the District Court for the Eastern District of New York found that Wal-Mart violated the ADA by discriminating against Brady on the basis of his disability and failing to reasonably accommodate him.

Wal-Mart appealed, alleging the District Court erred in not granting the company summary judgment on the failure-to-accommodate claim because Brady never asked to be accommodated. Brady, the company said, did not demonstrate he was disabled nor was he perceived by the company to be so.

A previous 2nd Circuit case, Graves v. Finch Pruyn & Co., found that "generally it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed."

But in Brady v. Wal-Mart Stores Inc., 2nd Circuit Judge Guido Calabresi ruled July 2 that if Wal-Mart knew or had reason to know that Brady had a disability, it had an obligation to offer a reasonable accommodation. Calabresi wrote that if the employer knew of an employee's disability, the company could not claim as a defense that the employee did not ask for an accommodation.

"This opinion says an employer has the responsibility to reasonably accommodate an employee with an obvious disability even if the employee does not request one," says Jeffrey Braff, a member of Cozen O'Connor.

Perceived Disability
The 2nd Circuit found there was sufficient evidence showing Brady was disabled based on the description of his cerebral palsy, which causes him to move and speak slowly, and also found that there was evidence showing Chin knew or perceived Brady to be disabled.

The court said that if an employer has an employee he thinks is disabled, has a record of disability or he perceives to be disabled, which are the three levels of analysis in the ADA, then the responsibility falls on the employer to ask the employee if an accommodation is needed.

Calabresi wrote that the ADA requires that employers engage in an interactive process and work together with employees they perceive to have a disability to determine whether an employee's disability can be reasonably accommodated.

"That's the step that was missing in this case," says Maria Danaher, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. "No one ever asked Brady if there was something that could be done to help him perform faster."

After working two years at a local pharmacy receiving and dispensing prescription drugs, Patrick Brady, a 19-year-old who has cerebral palsy, took a job as a pharmacy assistant at a Centereach, N.Y., Wal-Mart.

During his first shift in the pharmacy department, the pharmacy manager became concerned with Brady's slow pace. The next week Brady was transferred to collecting shopping carts and garbage from the parking lot.
When he tried to get his pharmacy position back, his request was denied and he was moved to the food department instead. Discouraged, Brady quit.

He then sued Wal-Mart and his former boss Yem Hung Chin under the ADA, alleging Wal-Mart discriminated against him because of his disability and failed to accommodate his disability.

While he was employed by Wal-Mart, Brady never asked to be accommodated, and he later testified that he did not think he needed an accommodation. But the District Court for the Eastern District of New York found that Wal-Mart violated the ADA by discriminating against Brady on the basis of his disability and failing to reasonably accommodate him.

Wal-Mart appealed, alleging the District Court erred in not granting the company summary judgment on the failure-to-accommodate claim because Brady never asked to be accommodated. Brady, the company said, did not demonstrate he was disabled nor was he perceived by the company to be so.

A previous 2nd Circuit case, Graves v. Finch Pruyn & Co., found that "generally it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed."

But in Brady v. Wal-Mart Stores Inc., 2nd Circuit Judge Guido Calabresi ruled July 2 that if Wal-Mart knew or had reason to know that Brady had a disability, it had an obligation to offer a reasonable accommodation. Calabresi wrote that if the employer knew of an employee's disability, the company could not claim as a defense that the employee did not ask for an accommodation.

"This opinion says an employer has the responsibility to reasonably accommodate an employee with an obvious disability even if the employee does not request one," says Jeffrey Braff, a member of Cozen O'Connor.

Perceived Disability
The 2nd Circuit found there was sufficient evidence showing Brady was disabled based on the description of his cerebral palsy, which causes him to move and speak slowly, and also found that there was evidence showing Chin knew or perceived Brady to be disabled.

The court said that if an employer has an employee he thinks is disabled, has a record of disability or he perceives to be disabled, which are the three levels of analysis in the ADA, then the responsibility falls on the employer to ask the employee if an accommodation is needed.

Calabresi wrote that the ADA requires that employers engage in an interactive process and work together with employees they perceive to have a disability to determine whether an employee's disability can be reasonably accommodated.

"That's the step that was missing in this case," says Maria Danaher, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. "No one ever asked Brady if there was something that could be done to help him perform faster."

And because Wal-Mart failed to do so, the 2nd Circuit affirmed the District Court's decision to decline granting summary judgment on the failure-to-accommodate claim. Danaher says the 2nd Circuit is placing more of the burden on employers to ask an employee if they need an accommodation. "Employers should be aware of this interpretation of the ADA's requirement for an interactive process," she says.

Interactive Process
Although employers are prohibited from asking about an employee's disability, using careful wording in making such an inquiry can lead to an employer getting an answer without directly asking about a disability.

Danaher suggests asking, "'Is there something we could be doing to help you do your job better?'" She says that when an employer has an employee with a performance problem, the employer should address the performance problem in a professional and empathetic way.

Braff says employers in the 2nd Circuit need to be more vigilant in finding out whether an employee has a disability and needs an accommodation. Although the ADA generally prohibits employers from making medical inquiries after someone has been hired, he says there's an exception for a business necessity.

"If the employee is clearly slow and not adequately performing their job, that affects your business," Braff says. "However, I am not advising that employers ask every single employee they perceive to be somewhat slow if they are disabled. That will get you into trouble the other way."

Braff stresses employers are only required to accommodate disabilities as defined under the ADA statute, so it's important to engage in that interactive process with an employee to find out if the reason for an employee's underperformance is actually a disability that requires accommodation.