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Linking ADA Compliance to Corporate Culture

HR leaders may want to consider not just narrow legal issues when determining whether to reasonably accommodate a disabled individual, but how their ultimate decision will impact the company's culture. That was one of the lessons following the firing of a woman with dwarfism.

Tuesday, September 6, 2011
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The recent settlement by Starbucks Coffee Co. for unlawfully firing a Texas woman with dwarfism brings up the importance of not just failing to reasonably accommodate a disabled individual but to ensure that such decisions are appropriate within the company's culture.

Last month, the U.S. Equal Employment Opportunity Commission announced that Starbucks had agreed to pay $75,000 to Elsa Sallard, who was fired by a manager at an El Paso Starbucks location. The manager claimed she would pose a "danger" to customers and employees if she continued to work as a "barista" making and serving coffee.

According to the EEOC, Sallard had offered to use a stool or small stepladder to more easily perform the required tasks, but the manager refused.

After the EEOC filed a lawsuit charging Starbucks with violating the Americans with Disabilities Act by failing to reasonably accommodate Sallard's disability, the company settled the case and agreed to provide ADA training to all managers and supervisors at the company's El Paso locations.

"Starbucks swift action to work constructively with the EEOC in this case ... sends the right signal from the corporate office," Robert A. Canino, regional attorney for the EEOC's Dallas District Office, said, when announcing the settlement.

 "The Starbucks customer environment is one that is often considered comfortable and progressive," he said. "By fostering that same environment for people behind the counter, Starbucks reinforces a positive public image."

Starbucks officials did not return phone calls for comment.

While workplace issues involving people with dwarfism are not common -- mainly because the disability is relatively rare in the United States -- HR must ensure their companies are following the appropriate procedures so that they do not discriminate against employees or job applicants with the disability.

In addition to determining whether the medical condition is legally considered a disability, organizations must engage in an interactive process with the candidate or employee to determine what type of accommodation is required. Then, the company must determine if providing that accommodation is reasonable, and does not entail an undue hardship.

It's important for HR professionals to be involved in that analysis, says Stephen Paskoff, founder and president at ELI Inc., a legal and compliance training firm in Atlanta.

"Line managers should not fire someone in this kind of situation without getting help from human resource professionals," he says.

HR professionals typically are not only better trained on the relevant legal and policy issues, but they should also be more attuned to the way such decisions align with the company's particular culture, he says.

"It's not just about legal, it's also about culture -- is this the way the company wants to treat people?" Paskoff says. "You need someone who is able to link not to just a narrow legal concern, but the overall enterprise impact of an HR decision."

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Abi Kistler, a blogger at lawyersandsettlements.com, says companies are in a "sticky wicket" because of the risk of liability differs when dealing with job candidates versus employees.

"Typically, in my experience, it's harder to prove discrimination for not hiring" a job candidate than it is for a company that hires a candidate and then does not accommodate the employee's disability, Kistler says.

"Given that," she says, "it's not hard to see how managers could start being advised to look for other qualified candidates to hire instead -- without documenting their rationale.

"The sad thing is that discrimination then starts being pushed into the closet," she says. "And at that point, you have to ask whether ADA, which is there to protect disabled workers, may actually at times promote the very situations it aims to avoid."

Christine E. Howard, a partner in the Tampa office of Fisher & Phillips, says a company does not have to hire or retain someone with a disability, if the firm determines that it could not reasonably accommodate the person due to undue hardship or safety concerns.

If the disability is not known at the time of the interview, but is disclosed by the employee once hired -- and the employee requests assistance in performing the job, the employer must discuss with the employee what accommodations might permit the employee to perform the job, Howard says.

"Employers need to engage in a good-faith interactive process, but the responsibility is on both parties -- the employer and employee," Howard says.

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