The Americans with Disabilities Act (ADA) requires that employers engage in an “interactive process” and to work together with disabled employees to determine whether an employee’s disability can be reasonably accommodated.  Recently, the 2d U.S. Circuit Court of Appeals held that Wal-Mart failed to engage in this process when it did not initiate the issue of accommodation with an employee whom it perceived to be disabled.  Brady v. Wal-Mart Stores, Inc, et al, 2d Circ., No. 06-5486-cv, July 2, 2008.

Patrick Brady, a 19-year old with cerebral palsy, had worked successfully for two years at a local pharmacy prior to applying for a job in the pharmacy department of a Wal-Mart store in Centereach, New York.  At the time of that application in 2002, Brady signed a document that stated that he could perform the tasks associated with the position of a Wal-Mart pharmacy assistant, “either with or without a reasonable accommodation.”  Brady was hired for the job, and was instructed to stock pharmacy merchandise and hand out prescriptions.  However, Brady’s supervisor immediately appeared to be unhappy with his performance, and told him to “speed it up.”  While his work was done slowly, Brady did not hand out the wrong prescriptions, nor did he require assistance from anyone to perform the job at that time.  At the end of his first shift, Brady requested a schedule for the upcoming week.  Although Brady’s supervisor told him that she would call him with a schedule, she did not.  Brady worked two more days in the pharmacy without incident and, at the end of the second day, asked again about a schedule.  Again, the supervisor said she would call him; and again, she failed to do so.  When Brady returned to the store to talk to her directly, the supervisor sent him to the personnel department.  The personnel manager told Brady that he was being transferred out of the pharmacy, and that the only available position was collecting shopping carts and garbage in the parking lot.  Brady understood the re-assignment to be a demotion, and felt that he was even less suited to it than to the position of pharmacy assistant.

After Brady’s transfer, his father approached the assistant store manager to discuss the situation.  During that discussion, the manager mentioned that new employees typically were given a training period and that Brady had not been provided enough time to learn the pharmacy job.  However, he then transferred Brady to the food department, where Brady was not provided with instructions or training and was not given the option of returning to the pharmacy.  Brady also was given a work schedule that conflicted with his community college schedule, even though he had notified Wal-Mart of that limitation on his availability at the time of his employment application.  Frustrated, Brady quit his job on the following day.

Brady then sued Wal-Mart, alleging violation of both the ADA and the New York Human Rights Act.  He brought a number of claims, including a claim that Wal-Mart had filed to reasonably accommodate his disability.  The case proceeded to trial, and the jury found in Brady’s favor on number of claims, including his failure-to-accommodate claim.  Based on its findings, the jury awarded damages to Brady that ultimately amounted to $600,000 in compensatory damages, and $300,000 in punitive damages. 

On appeal, the Second Circuit addressed a number of issues, including whether the district court erred in not granting Wal-Mart’s motion regarding judgment on Brady’s failure-to-accommodate claim.  Wal-Mart argued that because Brady had never requested an accommodation and had testified that he did not think he needed one, the district court should have granted judgment as a matter of law on that claim.  The Second Circuit disagreed, holding that while it is generally the responsibility of the disabled individual to inform the employer that an accommodation is needed, an employer who is aware of or perceives a disability is obligated to provide a reasonable accommodation for that known or perceived impairment.

This holding has the potential to complicate an already unsettled issue for employers, when it applies – as in Brady’s circumstance – to a situation in which an employer views an employee as disabled, but the employee does not perceive himself to need an accommodation.  Employers should be aware of this interpretation of the ADA’s requirement for an “interactive process” and should request assistance from both human resource managers and legal counsel when faced with an impaired employee who might require reasonable accommodation in order to do his or her job.     


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