A disgruntled, disabled former employee sues Acme: could this have been prevented?

Based on a true story, fictional plant Acme is hit with a lawsuit from a disabled employee. Did Acme do everything it could and should when dealing with this employee? Only the names have been changed to protect the innocent.

Bill Borred was doomed even before he was born. Dealt a bad hand by the genetics game, he developed a case of congenital glaucoma. The condition took its toll early in life. By age six, he was already blind in one eye and had severe tunnel vision in the other. Other than that minor detail, he was as mentally sound and physically fit as any child, and now, as an adult, he’s as fit as any of us can claim to be. Before he went off to make his way in the world, his parents had the good sense to send Bill to a vocational school. That’s where he learned techniques that would help him compensate for his poor vision. The training serves him well as it allows Bill to move about freely. Lacking a driver’s license, he relies on public transit, taxis and the help of friends.

The mobility gave him access to the job market, but he lacks a college degree. During his 10-year working career, Bill has held more than a dozen jobs, including hand excavation at a garden service, flipping burgers for a major chain and clerking behind the counter at the library. His demonstrated adaptability prompted him to pay a visit to Acme’s HR office, where he was hired as a general laborer on a trial basis, subject to the 90-day probation period. Acme assigns its new general laborers to crummy jobs, either the electroplating department or the environmental area.

Because Bill could show he attended a trade school, he was sent to the electroplating department to operate a manual barrel-plating line. The job there was to dump a suitcase-sized bin of small metal parts into a squat horizontal cylindrical plastic mesh basket -- the barrel -- and use a track-mounted overhead hoist to transport it sequentially through a series of as many as 10 processing stations, each with various solutions for cleaning, electroplating various metals, and rinsing the metal parts. The associated work ticket indicated the specific sequence of stations to be used for the batch, the length of time the parts were to be in each solution and the settings for the controls on the electroplating electrical panel. At the last station, a hot air dryer, Bill had to hoist the basket to dump the newly-plated parts into another suitcase-sized bin, put the work ticket into a slot on the front of the bin and push it down a conveyor to the next production station.

Bill appeared to have trouble selecting the correct vats, monitoring the immersion times and setting the controls properly. Although the job wasn’t that difficult, Bill worked somewhat slowly and generated a backlog that starved the next production area of work. Also, his work area was messy because he wasn’t particularly careful about transferring parts to and from the barrels and he sometimes mixed up the work tickets on bins leaving his area. Several times he shoved the bin of finished parts down the conveyor with such vigor that it slid off the end, dumping the contents on the floor.

Sam Eureye, the department manager, talked to Bill about these problems as well as having to scrap so many batches of assembled product when inspectors discovered too late that the parts Bill plated didn’t meet spec. Sam also cautioned Bill about spending so much time talking on his cell phone. Bill’s response was that he was doing the best he could, and that’s that. Take it or leave it.

Two weeks later when the situation didn’t improve, Sam had Bill transferred to the environmental department. The job there involved dumping old pallets, scrap lumber and other burnable materials into a heavy-duty shredder that chopped the waste into pieces small enough to feed the plant’s boilers. When the shredder’s discharge bin was full, Bill was to shut down the machine and push the wheeled bin to a staging area for transport to the boiler house.

Howie Tzerschel, the environmental area supervisor, was amazed to see Bill’s performance get worse as time went by and his attitude become increasingly negative. He regularly spotted Bill walking out of the department to the loading dock for a cigarette. Howie clearly got the impression Bill didn’t really care about what he was supposed to be doing.

During some lunchtime conversations, Sam and Howie agreed that by the second week on both jobs, Bill had started to lose interest in his assigned tasks. Both supervisors had noticed Bill taking an excessive number of breaks, which dragged down the departmental key performance indicators that upper management watched so closely.

Later that week, Howie caught Bill slamming material into the hopper with an angry vengeance. If Bill lost his balance while cramming material into the hopper, he’d grab the hopper rim to steady himself. Howie punched the emergency stop button and stood toe-to-toe with Bill to explain that working in this manner constitutes an intolerably dangerous practice. Howie then ordered Bill to stop getting his body so near the open hopper.

After Howie departed, Bill began tossing pieces of lumber into the hopper from about eight feet away, half the time missing his intended target. This caught the attention of other nearby workers, some of whom worked below. When the word got back to Howie, he returned to the shop floor immediately, tracked down Bill and ordered him to stop throwing things because of the risk to others. Bill merely shrugged.

Later that day, Bill somehow managed to push a bin of scrap with enough force to punch a hole in the wall at the point of impact. When he heard about this mishap, Howie exploded in rage. He’d had enough and terminated Bill exactly five weeks from the day Acme first hired him.

Bill, of course, filed suit, claiming that his termination violated the Americans with Disabilities Act because Acme made no attempt to provide accommodation for his handicap.

How could this situation have been avoided? What could his supervisors have done to short-circuit Bill’s behavior patterns? Would it make sense to limit the areas in which disabled people can work? Should a supervisor have to tolerate any lack of productivity from a probationary employee? Is there any effective way to idiot-proof every job and task? Is there any reason to do so? Is there any relevant documentation the supervisors should have been keeping?

A corporate consultant says:

In my opinion, Acme made several critical errors. First, Bill shouldn’t have been given an assignment that required reading —— as did his job in the electroplating department.

Second, Sam should have terminated Bill immediately upon hearing the "take it or leave it" comment. As a distant second option, Sam should have documented his discussions with Bill about his mistakes and his unacceptable behaviors and attitudes, making clear to Bill in verbal and written form that the next instance of any one of these constituted grounds for termination.

Third, Howie should have confronted Bill the first time he observed excessive breaks, inadequate work and poor attitude. Instead, he allowed these problems to get worse over time, talking about them only with Sam.

Fourth, Howie should have terminated Bill the moment he first observed deliberately dangerous work practices. Instead, he made Acme and its employees vulnerable in numerous ways by waiting until the third offense and then exploding in rage.

Finally, whether the job could be "idiot-proofed" or not is irrelevant. Why should any employer go to the expense of "idiot-proofing" a job only to retain a dangerous, insubordinate employee? Neither would limiting his work area be a solution —— it'd be a work-around to accommodate a jerk of an employee. The issue here is Bill's disrespect for authority and his disregard for the safety of others —— behavior that isn’t in the least mitigated by his disability.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:

I am somewhat sympathetic to Bill’s plight, but not at all to Acme assigning him to the jobs he performed (or didn’t perform). The work situation endangered Bill and also his fellow workers in addition to producing substandard performance. And that’s wrong.

Every job should have some minimal specifications regarding the skills (or KSAs) needed to perform it. And, the job applicant should be tested for ability to demonstrate those skills before being assigned to the job. No skills, no job, period.

I think Acme screwed up here, big time. However, it wasn’t that they didn’t make “reasonable accommodation,” but that they made an unreasonable assignment. Bill didn’t have the skills to perform the job.

Should Acme have found a job for Bill that would accommodate his disability? Yes, but only if there’s a job available that Bill has the skills to perform and only if some reasonable accommodation can be made (if necessary) to assist him to perform it effectively. Otherwise, Bill would be hired not because he has any skill, but out of charity, and I don’t think this is fair for the business or Bill.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

For once, it’s hard to find fault with Acme or its supervisors, Sam and Howie. All things considered, the two demonstrated amazing patience with Bill.

While glaucoma and serious vision problems may well constitute a disability under the Americans with Disabilities Act, nothing in that law requires an employer to tolerate an ill-tempered employee whose fury produces dangerous working conditions for his co-workers. More important, nothing in this scenario suggests that Bill’s vision played any role in his poor work performance. Had Bill’s visual problems hampered him in performing either job, Acme would have had an obligation to reasonably accommodate his disability, unless it represented an undue hardship. Conditions such as a bad temper aren’t protected under the ADA, and Acme had no obligation to accommodate Bill’s fury.

Bill apparently wasn’t enchanted with the menial tasks he was assigned to perform. Like a bored 5-year-old having a temper tantrum, he either worked too slowly or performed his assigned tasks in an unorthodox and dangerous fashion. Bill’s work history reflects that he doesn’t stick with anything for very long. But neither Acme nor the world at large owes Bill a living, and he has to pay his dues and work his way up like every able-bodied worker does.

Why should Acme idiot-proof every job?

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

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