The wheels of (bad) fortune

The bad hand you're dealt can get worse

By Acme's dealings with a disabled employee just don't cut it

 

 

In all truth, Bobby Ganouche thought of himself as a thrill junkie who always could use another fix. He was an active skydiver; he competed in stock car races on weekends; he loved bungee jumping. Bobby was on a constant lookout for any activity that required a suitable combination of testosterone and adrenaline, both of which he had in abundance.

He was on an absolute high when he learned his Army reserve unit was activated for duty in the Middle East. Bobby actually looked forward to what he thought would be a real adventure, something more exciting than his normal job as expediter at Acme Instant Comestibles and Compost.

A serious leg wound instantly abbreviated his tour of duty. The ace surgical team and Bobby's determination were insufficient to make him whole. In fact, it was highly probable that he would need to use a walker or wheelchair for the rest of his life. It meant he would be returning, not as a hero, but as a gimp who would need to abandon many of the activities that gave his life meaning.

Acme held his job for him while he was gone, but it was a different Bobby that cruised back to work in a brand-new wheelchair. Gus Patcheaux, Bobby's supervisor, already had made many plant layout changes to accommodate the new reality.

During the next several weeks, Bobby discovered it was sometimes difficult to navigate the passageways between departments and equipment. He sometimes collided with equipment, perhaps damaging something, bumping his head or placing himself in danger. He bumped into employees as he maneuvered his chair around obstacles. A hose flopped across an aisle stopped him cold. The back of the plant, with its gutter to a floor drain, was a particular obstacle. When Bobby passed through the area, that gutter seemed to jump over and grab one of his wheels and Bobby needed assistance to extricate himself.

Sometimes Bobby's mood was as depressed as his productivity, both of which then depressed his entire department. Gus and Coco Vaughn, Bobby's co-worker, did their best to elevate his spirits, telling him that sooner or later he would get better at navigating the plant. Coco stayed late to help him with his backlog.

While Bobby's department may have been offering support, Anne Dwee, Acme's HR person, definitely was getting rock-solid complaints. The problem, as Anne pieced it together, was that work slowed whenever Bobby rolled into a department. People felt they had to get him out of a jam. Everyone wanted to get Bobby to another department so they could get back to doing what they were getting paid to doand that was not to babysit.

Anne could see no good options. There weren't a lot of jobs to be filled. Production involved climbing ladders and stairs. She thought Bobby could drive a forklift, but she was told that forklift operators periodically need to get off to verify the identity of the loads. Besides, Bobby didn't have the government-mandated forklift training. In short, there was no job available that didn't require him to maneuver through the plant.

Anne came to the realization that the best option seemed to be to terminate Bobby. His performance had a negative effect on others, and that wouldn't change. When push came to shove, the actual discharge went more smoothly than she had a right to expect. Bobby wheeled himself into the sunset, and Acme settled back to normal.

Two weeks after Bobby got his "walking" papers, he sued Acme for violation of his rights under the Americans with Disabilities Act.

How could this situation have been avoided? Is Acme in trouble?

An attorney says:

It's difficult to decide who is in the least enviable position in this caseBobby or Acme. Bobby has just lost the source of his livelihood and his function in life. Acme now faces long, expensive and very likely bitter litigation. Acme's only alternative may have been significant disruption in the plant, loss of productivity and morale and perhaps increased risk of physical injury.

Apparently, Acme understood its obligation to reasonably accommodate disabled workers under the Americans with Disabilities Act. It found a job Bobby was able to do in his wheelchair and made as many plant changes as were practical to accommodate Bobby's wheelchair. It appears that both sides were at a stalemate. Despite the physical plant changes, Bobby's wheelchair was not able to move without impediment, causing other workers to stop their work and help him. There is also a suggestion that Bobby was behind in his work.

Acme missed one essential step, however. Many courts require an employer to engage in an interactive exchange with a disabled worker, asking the worker for suggestions on how to achieve a reasonable accommodation.

Acme failed to do this. While an employer is not required to accept suggested modifications to the job or the premises from an employee, it is required to ask and to listen. Bobby was in the best position to know what would resolve the problems, and he may have had suggestions that were workable. But Acme never asked.

Frankly, it sounds as though the Acme plant is more of an obstacle course than a manufacturing facility. One also wonders how OSHA would view a plant so cluttered with equipment and personnel that there is no clear passageway. Were there other ways in which the plant layout could have been changed to accommodate Bobby's ingress and egress? Apart from the plant, were there open office jobs that Bobby had the skill and experience to perform? Could he work as an order taker, for example?

Had Acme engaged in the required discourse with Bobby and explored the alternatives and still come to the conclusion that further modifications to the work premises or a job transfer for Bobby were not reasonable, Acme could have terminated Bobby without legal ramifications. The ADA does not require an employer to accommodate an employee if the accommodation is unduly disruptive to the business. It also does not require an employer to employ a disabled employee when the disability poses a risk to the health and safety of the employee or his coworkers.

Acme responded with a knee- jerk reaction, terminating Bobby without bothering to ask him for suggestions or exploring any additional alternatives on its own.

Julie Badel, Partner

Epstein Becker & Green, P.C.

Chicago, Ill.

312-499-1418

jbadel@ebglaw.com

An academician says:

My reading of the ADA is that the company must make "reasonable accommodation" for a disabled person. If a company did, and if the employee still can't perform the job, the company has no obligation to continue his employment. It certainly appears that Acme has gone out of its way to make a reasonable accommodation. And given that Bobby wasn't able to perform the job, even with this accommodation, I think that Acme was justified (under ADA rules) in terminating his employment.

What I am less certain about is whether Acme has an obligation (under ADA) to find another job for Bobby. I realize that Anne tried to fit him in someplace else in the plant, however, it's unclear if she also tried to find a job in the office area where Bobby might be a lesser risk to himself and others. If she did, I think Acme is in the clear.

Human Resources might have played a bigger role. They might have helped Bobby move to a new career that may or not involve Acme. Bobby is eligible for a wide range of veterans' benefits, including education and retraining. By helping Bobby make contact with the VA or some other agency, Human Resources might have assisted Bobby with the transition to a new job or a new career and in so doing avoided the ADA suit.

Homer H. Johnson, Ph.D.

Director - Graduate Programs in Human Resources, Industrial Relations and Organization Development

Loyola University Chicago

Chicago, Ill.

312-915-6682

hjohnso@luc.edu

A corporate consultant says:

Despite the heartbreaking nature of this case, corporations are not charities. If in fact there is no job at Acme that Bobby can perform, that's a sad fact of life and both he and Acme need to move on.

However, it seems that Acme didn't thoroughly explore a couple of possibilities.

Would something as simple as walkie-talkie headsets have overcome the problem of drivers getting off their vehicles to identify loads? And getting training for Bobby to drive a forklift doesn't seem an insurmountable problem.

Perhaps another possibility would have been to pull together a team of employees representing each functional area, with the objective of determining whether and how jobs or functions might be redesigned to accommodate a wheelchair-bound employee. If no existing job at Acme provided such a possibility, perhaps segments of multiple jobs could be extracted and combined to form one position.

Other possibilities may have included re-training Bobby for a desk job; helping him find appropriate employment elsewhere before letting him go; contacting the community and government agencies for advice and referrals.

These ideas may still have come to naught; but that's an unknown unless and until the ideas are tried. Indisputably, making such efforts would have demonstrated a more vigorous approach to retaining Bobby.

Francie Dalton

Dalton Alliances, Inc.

Columbia, Maryland

410-715-0484

fax: 410-715-8593

fmdalton@daltonalliances.com

http://www.daltonalliances.com

Our "in the Trenches" stories are created as a learning tool; the names of the companies and the people described within them are fictional. 

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