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BLOG / 07.02.18 /Jack Malley

Wal-Mart Prevails Against Sympathetic Reasonable Accommodation Plaintiff

Sophisticated employers are well-schooled in their obligations to engage in an interactive process to determine if a reasonable accommodation can be provided to an employee with a disability. And some employers will err on the side of providing an accommodation even if the employee cannot perform an essential function of the job.

While cautious practices for the purposes of avoiding risky litigation, or for more altruistic reasons, can be sound policy, a decision by the Tenth Circuit earlier this month demonstrates that some courts will side with an employer if it is clear that an employee cannot perform an essential job function.

In Mielnicki v. Wal-Mart Stores, Inc., 2018 WL 3046468 (10th Cir. Jun. 20, 2018), the employee was in her sixties, but had the mental capacity of a thirteen-year-old as a result of a developmental disability. She was employed by Wal-Mart for fourteen years, first as a shopping cart attendant, then as a maintenance worker.

An essential function of the maintenance position was cleaning restrooms. For the initial years the employee held the maintenance position, two other maintenance workers cleaned the restrooms, but the employee didn’t. After one of the maintenance workers left the job, a store manager directed the employee to clean the men’s room. The employee refused alleging that she was afraid a man would come in the bathroom and attack her. The employee sought an accommodation in the form of a different job supported by her doctor’s opinion that she could not handle certain social situations, including being in the men’s bathroom. Wal-Mart placed the employee on personal leave pending reassignment if a suitable position were to become available. The employee subsequently took a job with another employer, and Wal-Mart terminated her.

The employee sued Wal-Mart for discrimination under the Americans with Disabilities Act and the Colorado Anti-Discrimination Act. Wal-Mart moved for summary judgment arguing that cleaning the restrooms was an essential function of the employee’s job, which she could not perform with or without any reasonable accommodation. The District Court granted summary judgment for Wal-Mart and the Tenth Circuit affirmed. In reaching that decision, the Tenth Circuit held that it made no difference that Wal-Mart had not previously required the employee to clean the bathrooms holding that “[a]n employer that goes beyond what is required under the ADA to permit an employee to perform only some of the essential functions of the position is not then estopped from insisting that the employee perform all of the essential functions of her job.”