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Walmart Ordered To Pay $5.2 Million For Failing To Provide A Job Coach To Its Deaf, Visually Impaired Cart Pusher With a Developmental Disability.

posted Oct 16, 2019, 9:01 AM by Christopher Vrountas

Just last week, a jury in Wisconsin ordered Walmart to pay $5.2 Million to a former employee for disability discrimination based on the company’s decision to stop providing a job coach for one of its store employees.  It was a stunning decision that should give employers pause. 

The EEOC brought the action against Walmart on behalf of an employee with an alleged developmental disability and who is also deaf and visually impaired.  The employee had been a cart pusher for 16 years at the Walmart store in Beloit, Wisconsin. When a new manager started at the store, he suspended the employee and demanded new medical paperwork to continue with the accommodations that had been provided to the employee.  These accommodations included the assistance from a “job coach” which had been provided by public funding.  According to the EEOC, when the employee complied the store  essentially terminated his employment.  After a 3½-day trial, the jury found in favor of the EEOC and awarded the employee $200,000 in compensatory damages and an additional $5 million in punitive damages.

DON’T BE DISMISSIVE.

The employer paid a stiff price here.  What went wrong? Notably, the new manager insisted on making a change when there allegedly had been “no change in circumstances”.  Sudden changes without explanation, especially when they come upon the introduction of new management, can raise substantial suspicion and, as here, could result in massive liability. Presumably, the change did not result from any complaint or operational issue, or from a need to cut costs or streamline operations, or some other legitimate business concern.  Mere irritation over what may appear to be a cumbersome accommodation, without more, just does not constitute an “undue burden” sufficient to deny a reasonable accommodation. 

LOOK BEFORE YOU LEAP.

That said, just because the provision of a “job coach” in this case was found to be a reasonable accommodation does not mean it would be so in all circumstances.  The employer should be very careful before agreeing to this sort of accommodation ,as third party job coaches could present a substantial increased burden and risk that the employer should balance when considering whether an accommodation might be reasonable or whether it would constitute an undue burden.  

ENGAGE IN THE INTERACTIVE PROCESS.

Before making any agreement with respect to this type of accommodation, the employer must have a very concrete understanding of why the employee “needs” the job coach and whether such accommodation is “reasonable” given the employee’s job description.  This information must come from the “interactive process”.  The employer (i.e., human resources or senior management if no HR) may ask the employee for direct access to the employee’s treating physician or the employer may work directly with the employee, but the employer is entitled either way to a verifiable understanding of the employee’s limitations.  That does not mean “diagnosis” or “prognosis” or other medical details.  Just an understanding of what the employee can or cannot do and that such abilities and disabilities are verified by the medical professional as stemming from a “disability” as such is defined under the statute. 

As part of this process, the employer typically provides a job description to the doctor who reviews it and says what the employee can or cannot do and what accommodation would be necessary to enable to the employee to do each of the essential functions of the job.  With that response, the employer and employee can have a conversation about what would be “reasonable” and what might be an “undue burden”.  For example, a temporary accommodation to get someone on their own two feet may allow for a somewhat more onerous, short term, accommodation which would otherwise be unduly burdensome if it were to last a long time or indefinitely.  But you cannot make these assessments without a comprehensive interactive discussion process with the employee and/or his or her medical provider.  

BALANCE THE RISKS TO DETERMINE WHETHER THERE REALLY IS AN UNDUE BURDEN.

Remember, the employer risks turning that job coach into an employee if the employer “suffers any work” by the job coach.  In short, the job coach cannot do any work for the employer (including not doing any part of the employee’s job) without creating the risk that an employment relationship may arise between the job coach and the employer.  It is almost never a reasonable accommodation to have to hire a second person to do a one-person job.  The employer needs to know that it will not be responsible for paying the job coach or fulfilling any other wage and hour obligations for the job coach including, for example, minimum wage and overtime pay, tracking hours or providing insurance coverages.  This can be clarified in a writing agreed to between the employer and the job coach and/or the third-party entity that provides the job coach.    

Second, the presence of a job coach in the workplace presents third-party liability risk for the employer as well.  This could arise from alleged personal injury at the worksite, violations of Title VII, and other liability issues arising from the presence of a job coach.  These risks should be addressed in a written understanding between the employer and the job coach and/or the entity that provides the coach, including how these risks will be insured.  

For example, what happens if the coach is injured on the job?  Does he or she have workers compensation coverage? Who pays for it? Will the job coach sue you for on the job injuries or for other liability? Does the job coach have any insurance coverage for these other risks?  Will the job coach or the entity that provides the job coach indemnify the employer for these risks? 

Similarly, what if the job coach is sexually harassed or commits sexual harassment?  The employer would likely be responsible for the job coach’s misconduct because inviting that coach into the workplace affects the work environment for which the employer is responsible.  Has the job coach been vetted?  Will the job coach be insured for these risks and will the job coach and/or the entity that supplies the job coach indemnify the employer for these risks?  And, if the job coach is the target of sexual harassment, will the employer have liability under Title VII or other theory?  The areas of responsibility need to be clearly drawn in advance. 

IF DOING GOOD WORKS RATHER THAN BUSINESS, BE CLEAR

It is possible that the Walmart story began when a predecessor manager from 16 years ago provided a position and allowed the presence of a job coach as part of an effort to give a helping hand to the community and to “help out” and “do good” rather than to employ necessary labor.  Conceivably, in this context, when the next manager wants to end the charity works, the plaintiff can turn the story around and argue that the arrangement was an employment accommodation for a disability and that he was entitled for it to continue.  While the ADA does not require acts of charity, failure to clarify the nature and intent of certain relationships could allow a latter day plaintiff to spin charity into a legal obligation as the lack of documentation clarifying the parties’ intent could allow for many alternative versions of history.   

The answer is not to always reject job coaches but to consider them objectively and from a business perspective rather than from a charitable perspective.  The parties should always communicate clearly and comprehensive so that the need is clear, the essential job duties are clear, and the accommodation is specifically tailored to fill the need in order for the employee to meet the duties.  At the end of the day, the employee must be able to perform all the essential functions of the job either with or without a reasonable accommodation.  Having someone else do the employee’s job is typically not a reasonable accommodation and it would likely would constitute an undue burden.  The parties understanding of any accommodation, including if such were to include the provision of a job coach, should be clear from the beginning to avoid turning the job coach into a second employee and to protect the employer from further undue burden. 

PROCEED WITH CAUTION IN GOOD FAITH.

If the employee cannot do all the essential functions of the job with or without a reasonable accommodation, the employer ultimately is entitled to terminate employment.  But you not get to that point with a good faith interactive process.  Proceed with deliberate caution. 

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