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Employer held not liable for failure to accommodate


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lmallory

By Laura Mallory

An employer was sued by the Equal Employment Opportunity Commission for allegedly failing to accommodate an employee. The lower court found in favor of the employer, holding that the employee was not a qualified individual. The EEOC appealed.

Background
The employee injured her right shoulder while working for the employer. The injury required two years of physical therapy. During the two years of physical therapy, the employee had several lifting restrictions that the employer accommodated. The employee was then given a permanent restriction of lifting no more than fifteen pounds. The employee was subsequently discharged.

Failure to accommodate claim
In order to establish a claim for failure to accommodate under the Americans with Disability Act, the EEOC was required to prove (1) the employee was a qualified individual with a disability, (2) the employer was aware of the employee’s disability and (3) the employer failed to reasonably accommodate the employee’s disability. In order to be a qualified individual, the EEOC had to prove that the employee was able to perform the essential functions of the job, with or without a reasonable accommodation.

At trial, the employer presented evidence that the employee’s job required her to lift items and sometimes carry an item to a customer’s car, and many of the items in the store weigh substantially more than fifteen pounds. There was additional evidence that once a week employees have to unload items from delivery trucks to restock the supply room. Another employee testified that the unloading days were “nothing but lifting.” Moreover, the written job description required that an employee carry items up to 50 pounds, but usually 10 to 20 pounds. 

The EEOC attempted to argue that because another part-time employee with a paralyzed left arm was permitted to work, so, too, should the employee at issue. The employer explained that that part-time employee was in a different position and would never be in the store alone. Additionally, the EEOC argued that the trial court erred in refusing to instruct the jury on its proposed “team concept” jury instruction. The “team concept” theory is based on an older case where the court found the “normal course for individual members of the [team of workers was] to substitute and reassign tasks among themselves according to individual abilities, preferences, and limitations.” The EEOC was seeking for the jury to be instructed that the heavy lifting was not an essential function of the employee’s job because the employer’s promotion of a team atmosphere allowed for other workers to do the heavy lifting for the employee, while the employee returned the favor by doing other tasks—such as paperwork for example—that the other workers did not know how to do. 

Based on the evidence presented, the Appellate Court affirmed the jury’s decision and explained that a rational jury could conclude that heavy lifting was an essential duty of the employee’s position. Therefore, the employee was not a qualified individual, as she could not perform the essential heavy lifting, with or without a reasonable accommodation. The Court also distinguished the case the EEOC relied on for its “team concept” jury instruction argument on the ground that the employee failed to show “a distribution of labor system in which the ‘normal course’ was for [the employee] to substitute and reassign discrete tasks involving lifting certain heavy items” in exchange for performing discrete tasks for other workers that they were unable to do. As a result, the EEOC’s claim for failure to accommodate was denied.

 

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