Sixth Circuit upholds the jury verdict against a company who fired a worker for treating her diabetes.
Lots of folks work hard, but arguably, folks with disabilities have to work even harder. Consider individuals with diabetes. It is one thing to get through your shift, and it is a whole other thing to survive a hypoglycemic episode while you are doing it.
So it is not asking too much for employers to make slight modifications to workplace rules if it helps an employee do their job and stay alive at the same time. Indeed, that is what laws like the Americans with Disabilities Act require: reasonable accommodations to help qualified workers with a disability.
Alas, apparently that was too much to ask of the employer in the case of EEOC and Linda Atkins v. Dolgencorp (aka Dollar General).
Everyone Could Use a Break,
Some More than Others
Dollar General hired Ms. Atkins in 2009. The company was pleased with her work and described her as a “hardworker” and “trustworthy.”
Ms. Atkins truly was a hardworker.
She is an individual with Type II diabetes who occasionally experiences low blood sugar. But that condition did not stand in her way. She worked so hard that, even when she experienced a couple of low-blood-sugar incidents while at work, she never left her post.
She knew how to handle it. She grabbed some orange juice from a cooler near her register, drank the appropriate amount to get her sugar-level back on track, and kept on working. Immediately after each episode she paid for the juice. (What do you think it cost? It must have been less than $2.50 each.) All so she could keep serving her employer.
Ms. Atkins asked for permission to keep her own juice at her register, but was told that store policy prevented it. Dollar General made no effort to propose an alternative accommodation.
Ms. Atkins told her store manager about each incident, but nothing was said about it until months after the fact.
During a store audit in 2012, the auditors confronted Ms. Atkins about a false allegation that she ate Little Debbie snack cakes at her register. She denied it, but told the auditors about the two, low blood sugar incidents. The auditors fired Ms. Atkins on the spot, telling her she violated the company’s “grazing policy.”
Ms. Atkins filed a charge of discrimination against Dollar General for failure to accommodate and for terminating her because of her disability.
Thankfully, a jury brought justice to Dollar General. It awarded Ms. Atkins a modest amount in back pay, and an appropriately large amount in emotional distress damages. Still, Dollar General refused to concede defeat and appealed to the Sixth Circuit Court of Appeals.
The Sixth Circuit ruled in favor of Ms. Atkins. Six years (!) after Dollar General fired her for the crime of keeping herself alive to do more work, Ms. Atkins was vindicated once more.
“Accommodate-Thyself” Defense Fails
On appeal, Dollar General argued that Ms. Atkins should have treated her hypoglycemia differently. Instead of juice, she should have taken glucose tablets, honey, candy, or peanut-butter crackers. The Sixth Circuit called this an “accommodate-thyself defense.”
But what about that grazing policy? If you can’t graze on OJ you can’t graze on honey or crackers either. Also, why didn’t Dollar General propose these alternatives back when she asked for the accommodation in the first place? The ADA requires an “interactive process.” If the company does not like your accommodation request, it has to suggest acceptable alternatives.
Dollar General stood by its “grazing policy” defense on appeal, claiming that it is a non-discriminatory reason to fire someone. The Sixth Circuit revealed the absurdity of that defense. After all, Ms. Atkins’ request to keep juice at her register was, legally speaking, a request to be exempt from the grazing policy. You cannot deny someone an accommodation to a policy and then fire the person for violating that same policy.
The Sixth Circuit drew a useful analogy:
Imagine a school that lacked an elevator to accommodate a teacher with mobility problems. It could not refuse to assign him to classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would have had a reason to buy the store’s orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution.
Failure to Accommodate
= Disability Discrimination
What looks like a neutral policy does not carry the day because the failure to accommodate Ms. Atkins is direct evidence of disability discrimination. If a failure to accommodate an employee with a disability leads to alleged performance problems by that employee and then termination, it is pretty clear that disability discrimination is at work.