In the Trenches: Acme shirks its obligation to disabled employee

In this installment, Acme learns the value of having two good hands. Remember, only the names are changed to protect the innocent.

Acme’s corporate culture revered its well-entrenched policy of filling a vacant position with only the most qualified applicant. The thinking was that, by doing so, the company gets the absolute best help money can buy.

Joe Hannusberg worked for Acme in its distribution center, essentially a warehouse, where he walked the aisles filling orders by picking items from bins to load something akin to a shopping cart. Most of the items detailed on Joe’s pick list were relatively small, which could be grabbed one-handed while walking past the bin. Others, however, are definitely “two-handers” because they weighed as much as 25 pounds.

Last Memorial Day, at a city-wide picnic, Joe was sitting just behind the baseline at a pickup baseball game. The crack of a bat resulted in a cracked and broken bat, the loose, raw, broken end of which arced into the stands and impaled his left arm. The resultant nerve damage rendered his arm permanently disabled and, for all practical purposes, functionally useless.

After spending time in rehab, Joe returned to work and found that the injury made performing the duties expected of warehouse order fillers impossible. It wasn’t much of a problem to pick smaller parts with one good hand. But, Joe dropped a few of the larger items, one of which could be heard to break upon impact with the floor, even though it was inside a cardboard carton. Embarrassed, he faced the fact that continuing in this job was out of the question. From that point forward, Joe took extra care, which slowed his pick rate quite a bit.

After coming to terms with the disability, Joe requested a transfer to an equivalent vacant position at Acme. At the time, there was an open slot for a router, an office job, the main tools of which were a computer and mouse. The router position had already been vacant for a few months. Ellie Fantiere, Joe’s supervisor, urged him to apply because she felt that Joe was perfectly qualified for that job and she knew that Acme realized that it needed to fill the vacancy soon. Ellie convinced Joe that it was a position in which a person of limited dexterity could excel. The job paid only slightly less than what order fillers were being paid.

Joe applied for the job, but Acme didn’t immediately assign him to fill the slot. The explanation was that the company hadn’t yet gone through the vetting process to select the best candidate. As a result, Joe was obliged to put his name in the hat along with others, both current employees and outside candidates, who had already applied for the position.

Acme interviewed a series of candidates for the router position during the next two weeks. Later, Joe received a letter from Acme’s HR department that said although Acme felt he was qualified for the router position, the company selected an able-bodied, non-disabled person to fill it. The letter also reassigned Joe to a position as an associate in the janitorial department, which paid about half of what he earned as an order filler. Joe had no other viable option and accepted the transfer.

He struggled with his new duties as best he could, but also filed a lawsuit, arguing that giving him the router job would have been the ideal, reasonable accommodation that is now expected of every employer in the country. By doing otherwise, Acme has proven that it discriminates against the handicapped. Acme argued that there’s not a trace of discriminatory practice in the long-lived corporate practice of filling an open position with the best-qualified person. As a consequence, Acme said it had no obligation to assign Joe to the router position.

How could this situation have been avoided? Can “best qualified” trump accommodation? Is it discriminatory to select only the best candidates? Is it sufficient accommodation merely to allow a handicapped employee to compete for a job? Is it discriminatory to give a person a job based only on membership in a protected group? Is the janitorial position at half the pay a “reasonable accommodation?” Is there another way that Acme could have worked with Joe to find him a position within the company with pay comparable to his previous order-picker position? What do Acme’s actions say about a company’s loyalty to its employees?

An attorney says:

Acme might have had an obligation to assign Joe to the router position if he could perform the essential functions of the position using only one hand. Under federal law, the Americans with Disabilities Act (ADA), an employer has a duty to reasonably accommodate a disabled employee unless to do so would pose an undue hardship.

One way to reasonably accommodate a disabled employee is to transfer him to an open position for which he is qualified. “Qualified,” in this sense, means that the employee possesses the skills, experience and education necessary to perform the job and that the employee can perform the essential functions of the position with or without reasonable accommodation. The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, takes the position that the employee doesn’t need to be the best-qualified candidate for the position.

Whether Joe can perform the router job will determine who prevails in his lawsuit against Acme. This, in turn, depends on whether two hands are required to use a computer and a mouse. Everyone would admit that a person can operate a keyboard with one hand, but it’s not an efficient way to work, and using only one hand takes twice as long as using two. Is it an essential function of the router job that the employee type at a certain speed? Can Joe type at that speed using only one hand? Can Joe type at all?

Another interesting question is whether Acme could have accommodated Joe in the order picker’s job by using other employees to pick the occasional heavier item, while allowing Joe to continue to pull those lightweight items that he could lift conveniently with his one good arm. Whether this would be a reasonable accommodation depends on how frequently heavier items need to be moved and how disruptive it would be for other employees to assist Joe.

Regardless of the type of accommodation, Acme violated the ADA by failing to engage in an interactive dialogue with Joe about the ways in which he could be accommodated.

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

A corporate consultant says:

The humanitarian in me says that Acme handled the situation poorly. There’s no indication that Joe had been anything but a solid employee. Joe didn’t cause the accident by engaging in risky behavior. Acme could have left him in the distribution center and worked with him either to provide some accommodation for his disability or to provide him with skills training for a different position.

Perhaps the long history of selecting only the best-qualified person should have given us a preview of how accommodating Acme would be. I’m a firm believer in consistency of policy — 98% of the time. Consistent policies allow the staff and workforce to count on policies and procedures. This increases efficiency and effectiveness.

Beyond what the law says, sometimes a person or organization must do the right thing. Actions that might appear to be the best current decision (hiring the most qualified candidates) can have negative implications in a broader sense. What message does Acme send to its staff and workforce by not working in Joe’s best interest? I’ve written in previous months about the role of trust in an organization. Trust is the key element that reduces conflict and increases teamwork; it’s what fosters the best work environments. Everything a supervisor or manager does either builds trust or reduces trust. Acme acted in a manner that reduced trust.

It’s not necessarily discriminatory to select the best candidate. It’s discriminatory to craft a job description that eliminates qualified people because of physical or other challenges. In this case, I believe Joe will have a basis for his lawsuit. We didn’t learn what the job description required of Joe, but his distribution center supervisor clearly believed Joe was qualified. It appears that the response Joe received indicated that Acme felt his physical limitation was a factor in his not being selected; HR stated that he was qualified for the router position, but the company selected an able-bodied, non-disabled person to fill the position.

There are many ways that Joe could be accommodated. As suggested above, the company could provide a means for Joe to handle parts that weigh 25 pounds. This might be a cart with adjustable height where parts could be pulled onto the cart. Perhaps skills training would qualify him for a less physically demanding position.

The janitorial position, which would arguably require equal or higher levels of physical effort, isn’t a reasonable accommodation. It’s also not reasonable to move him to such a job with physical demands at a much lower wage rate.

Acme should put its attorney on speed dial for this one.

Tom Moriarty, PE, CMRP
Organizational Reliability Professional Services Consultant
(321) 773-3356
tjmpe@alidade-mer.com

An academician says:

Joe doesn’t seem to be contesting that he’s not able to perform his “picker” job. The issue seems to be more of pay — he thought he should have been given the router job at about the same pay, but instead was given a janitor job at half the picker’s pay.

The case illustrates the conflicts about the basis for deciding these issues. Certainly, one could argue Joe’s case from a moral position. After all, Joe is a loyal employee who, through no fault of his own, was permanently injured. Does not Acme have a moral obligation to take care of him by making sure he is kept at his current pay and benefits but with different responsibilities? Maybe even promote him to a picker supervisor, with an increase in pay but no lifting required?

Or they could have appointed him to the router position and ignored the standard merit selection process that Acme uses. That would have satisfied their moral obligation to Joe.

When I give similar cases to my students, a goodly number of them argue from this position and say that Acme had a moral obligation to loyal employee Joe. And, certainly, many companies followed this approach. “Taking care of each other,” and “Taking care of our workers,” was the slogan. However, this approach, together with the idea of guaranteed lifetime employment, has faded. Basic economics is one reason for the fade, but additionally, increasing legal restrictions produced problems because these policies were very loosely applied.

Moving to the legal approach, Acme has an obligation to provide Joe with reasonable accommodations. This doesn’t mean, however, that Joe must be promoted, put into a custom position developed specifically for him, be given the same pay or be given hiring priority over other applicants. Reasonable accommodation could mean that there would be a slight adjustment to Joe’s job (maybe use a mechanical device to help Joe with the heavy lifting?) or finding a vacant position that he is qualified to handle.

Although there’s little reference to any attempts to assist Joe on the picker job, in my mind, Acme seems to have acted in compliance with its legal obligations to Joe (and to the rest of Acme employees who were told that assignments are based on merit). Thus, here we have a clash between those who argue for a moral position and those who argue from the legal position. Certainly, other options would come to mind, for example, help Joe retrain to make him eligible for another job or another career. However, Acme isn’t obligated to do that, but it would be a nice way to show that they are taking care of their own.

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

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