Acme's in the doghouse after troublee with visually disabled employee

In this edition of In the Trenches, Acme struggles to rate the performance a worker with disabilities.

The snow lasted too late into the spring this year. But, finally, the dark, dirty slush has been washed away by the spring rains that are now keeping gardens moist and growing. It's as if Mother Nature is trying to make up for lost time.

The folks down at the Acme plant are also trying to make up for lost time. Business has been picking up steadily since the beginning of the year, but not enough to justify going back to a two-shift operation. Still uncertain about the upside prospects for the near-term economy, Acme's management doesn't want to hire permanent employees only to lay them off if business goes sour again.

Anne Drojiness, Acme's procurement director, has been doing her part to follow the party line in the steady ramp-up in plant activity. She has been making significant use of contract labor and outsourcing, including for the contract administration function itself.

Claire Voyant, the contract administrator, is a temporary worker who was brought in just before Anne assumed her present supervisory position. Claire and her Seeing Eye dog, Fovea, have been together five years now and are really working as a team. The German Shepherd dog has made it possible for Claire to go nearly anywhere she needs to go. That includes the ability to accept a job that pays reasonably well.

Claire has been working for nearly three months now and Anne is about to conduct a performance review meeting with her contract administrator in Acme's main conference room. Let's look in on them.

"Quite frankly, Claire, we are here in the conference room because I don't want dog fur all over my office like it is in yours. I think you've noticed I don't sit down when I go in there," said Anne.

Claire responded, "I'm sorry about that, but I brush Fovea nearly every day. But I thought we were here to talk about my job performance."

"We are," said Anne, "but I want to talk about your effect, or rather, your dog's effect, on other people's performance, as well. From what I can see, your office is a more popular gathering place than the water cooler. It seems there's always somebody bringing a treat for the dog and then hanging around when they should be working. The dog is a distraction, Claire."

"Fovea is a working dog, she's not my pet," replied Claire. "Like you, I don't want people messing with my dog. But, I'm new here. Locking my office would seem too antisocial. I can't yell at people to leave my dog alone or stop trying to play with her. But, I want to focus on my job performance. I've not missed a single deadline since I've been here. The contract files I'm responsible for are completely up-to-date. You've told me that yourself."

"That's true, I did say that," said Anne. "They were a mess at the beginning of the year. But, this is an office, not a kennel. Besides, there are too many people here that are allergic to dog dander."

Claire replied, "I've spent a lot of time with those files and contracts. I'm here early every morning and I leave late every evening. That's because it makes my commute easier. Acme benefits because I want to avoid the rush hour crunch."

"Yes, I appreciate the fact that you're doing what you can to make your life easier," said Anne, "but when the rest of us get here in the morning, there's always paw prints on the lobby floor where customers can see them. That makes the place look dirty and run-down."

"Anne, I really like this job," replied Claire. "I think I've proven I can do the work better than the way it was being done when I came here. Would it be better for me to telecommute? The computer I have at home is far superior to the Braille equipment I use here. Most of my interaction with staff, customers and outside contractors is through e-mail and telephone, anyway. The contract administrators here don't need to refer to paper files because everything we need is in digital format on the server. It would be easy for me to work from home. I could come in once a week for the weekly meeting."

"That's not the way we work at Acme, Claire," said Anne. "Telecommuting is out of the question. I really don't think this whole thing is going to work out unless you can do something about that dog. Why don't you think about it. Let's get together again next week to assess your progress."

Can Acme terminate an employee for the reasons implied? What measures could Claire take to resolve this problem?

An attorney's response:

Acme is treading on forbidden ground under the Americans with Disabilities Act. As someone whose vision is so poor that she needs a seeing eye dog, Claire is protected as a "disabled" person under the ADA. The ADA prohibits discrimination against a qualified individual with a disability. Claire is qualified to do her job, but Anne seems to be doing her best to discriminate against Claire because her disability requires her to have a seeing eye dog at work.

Anne has not one word of criticism about Claire's job performance, but she seems to find an endless array of reasons why Fovea poses a problem,dog hair, paw prints, an attractive nuisance in Claire's office. Anne ought to shut up about Fovea and thank her lucky stars that she has a performer as good as Claire.

The ADA also places an obligation on employers to reasonably accommodate disabled workers, unless to do so would pose an undue hardship. In this case, the reasonable accommodation is allowing Claire to bring Fovea to work. While Anne has a host of petty complaints about Fovea, none of them rise to the level of creating an undue hardship on Acme. Undue hardship is significant difficulty or expense or something that is unduly disruptive to the operation of the business.

Given the amount of office gossip that occurs around the coffee maker, it is hard to believe that employees stopping in Claire's office to bring Fovea a treat and chat is unduly disruptive. As for the dog fur and paw prints, employees create dirt and leave muddy footprints as well. In essence, Claire has requested a reasonable accommodation of being allowed to bring Fovea to work, and Acme cannot demonstrate that this accommodation poses an undue hardship for the company.

Claire, however, has gone one step further than she needs to go. She has offered Acme another type of reasonable accommodation, allowing her to telecommute. This seems eminently reasonable, given her job duties, but once again, Anne rejects it out of hand because "that's not the way we work at Acme." An employer is free to select among a number of methods of reasonable accommodation, but it is not free to reject every type of accommodation when it cannot demonstrate an undue hardship.

While Claire certainly has grounds to take legal action against Acme if she is terminated, as a preventive measure, she should contact someone in the company hierarchy above Anne, either human resources or a department head. Claire should explain that she is performing the job well but requires a reasonable accommodation, either bringing Fovea to work or being allowed to telecommute. Hopefully, someone above Anne at Acme has knowledge of an employer's obligations under the ADA.

Julie Badel, Partner, Epstein Becker & Green, P.C.
(312) 499-1418

A maintenance management consultant's response:

What can Claire do further to resolve this problem? Nothing! She has already proven that she is doing excellent work for Acme as the contract administrator. When faced with Acme's "problem," she provided a very workable solution: telecommute.

The bottom line is that Anne does not want Claire's dog or her working for Acme. Regardless of what Claire would propose, Anne will veto the idea.

Can Acme terminate Claire for the reasons that Anne stated? Sure, let them do it. It will provide Claire with an excellent case against Acme and years of worry-free financial security when she prevails in court.

Bob Steibly, C.P.E., Steibly & Associates
(802) 747-7220

A corporate consultant's response:

Seems to me that Claire has come up with a reasonable solution, telecommuting. Anne's immediate rejection of the idea, her refusal to even consider it, is unreasonable.

The quality of Claire's performance has apparently been stellar. Anne's concerns about the dog's impact on the work environment seem reasonable. Continued access to the quality of Claire's work without the dog-related problems is available through telecommuting.

At this point, Claire might be best served by completing a cost comparison for Anne. The analysis should include the costs involved in replacing Claire, such as the productivity loss incurred by dismissing Claire and contracting with someone else to do the work. It also should include the potential savings that telecommuting may generate.

In presenting this analysis, Claire would be wise to empathize with Anne regarding her disdain for dogs in the work environment. If Anne believes that Claire really sympathizes, and is working hard to eliminate the problem, Anne might be more receptive to telecommuting. Claire also would be wise to expand her research, providing Anne with details about how much money other companies have saved through appropriate use of telecommuting. In this way, Claire could equip Anne to be credited with saving Acme a considerable sum of money through telecommuting.

I'm not saying Anne isn't a jerk for the way she has dealt with the issue. But Anne is Claire's client. And clients get to be jerks,with virtual immunity. If Claire wants to retain Acme as a client, finding a way to make telecommuting a "Big Win" for Anne is the way to do it.

Francie Dalton, Dalton Alliances, Inc.
(410) 715-0484