Both federal and state law - the Americans With Disabilities Act (ADA) being the federal law and the Kentucky Civil Rights Act being the state law -- prohibit employment discrimination on account of an employee's disability. Both require an employer to consider and provide, if reasonable, accommodation for an employee's disability. The employer's refusal to do so -- that is, where there is both a covered disability and an available reasonable accommodation -- is a violation of both; put another way, such a refusal is disability discrimination.

The recent case, EEOC v. Dollar General, is a good example. The employee, Linda Atkins, was diabetic and needed to keep orange juice close to her work station at the cash register "in case of an emergency." She asked her manager if she could keep orange juice in a cooler near to her work station for such an emergency and was told no. Atkins had two emergencies that she addressed by taking a bottle of orange juice from a nearby store cooler, drinking it and paying for it. Both times she told her manager what she had done.

But this wasn't good enough for two of Dollar General's higher-up management people, Scott Strange, a district manager, and Matt Irwin, a regional loss prevention manager. They were investigating "shrinkage" in the store and interviewed Atkins, who told them of the two times she had consumed the orange juice on account of her diabetes and paid for it. Strange and Irwin decided that Atkins had "violated Dollar General's 'grazing policy' which forbids employees from consuming merchandise in the store before paying for it." Strange and Irwin fired Atkins.

Atkins sued Dollar General and claimed that her firing was disability discrimination caused by Dollar General's refusal to allow a reasonable accommodation, allowing her to have orange juice nearby for emergencies. A jury awarded her $27,565 in back pay and $250,000 in compensatory damages.

Dollar General argued on appeal that the jury was wrong because it had fired Atkins because she had violated its "grazing policy," not because of her disability. The Court - the Sixth Circuit Court of Appeals that covers Kentucky -- rejected this argument and explained as follows:

  • Once Atkins requested this reasonable accommodation, the employer had a duty to explore the nature of the employee's limitations, if and how those limitations affected her work, and what types of accommodation could be made.
  • A company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing her.
  • Failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.

So: the employer could not invoke or hide behind a policy it claimed Atkins had violated when it refused to even consider any type of reasonable accommodation that would have avoided or precluded any need for Atkins to violate the policy. Dollar General lost and should have.

We've done a number of previous posts and FAQs on these issues: 

Should an Employee Request a Specific Accommodation for His or Her Disability? 

When Is a Disability Covered by the ADA?

What is an employer required to consider for a reasonable accomodation under the ADA?

Lexington, Kentucky disability discrimination lawyer Robert Abell represents employees and individuals in disability discrimination and ADA cases in state and federal courts throughout Kentucky; contact him at 859-254-7076. 


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