If you have a disability that affects your ability to work and you need to eat or drink on the job, you should ask for this as a reasonable accommodation. Due to the side effects of your medications, or to help you digest them, you may need to eat or drink. Or you may need this accommodation because of a condition like diabetes, where your blood-sugar levels can be a problem.
Whether this will be too great a disruption to you and your workplace depends on your job and duties, but for most people, eating or drinking should not be a problem. In fact, in a recent case involving a retail store chain, a cashier was fired because she drank juice while on the job to manage her diabetes. That juice ended up costing the defendant $277,565.
Company Pays the Price for Its Untrained and Ignorant Store Managers
In September, a federal jury ruled for the U.S. Equal Employment Opportunity Commission (EEOC) in an Americans with Disabilities Act (ADA) lawsuit against retail giant Dollar General, which operates more than 11,000 stores nationwide. The agency charged Dollar General with firing a cashier at its Maryville, Tennessee, store in violation of the ADA, according to the EEOC.
The complaint explained that the cashier, Linda Atkins, was a diabetic. Atkins informed her supervisor that she was a diabetic and asked several times to have juice for her to drink near her register to prevent a hypoglycemic attack.
At trial, Atkins testified that her supervisor responded that Dollar General did not allow employees to keep food or drink near the register. The store also has an accommodation policy that would have allowed Atkins to keep juice near the register and drink it, but the store’s employees, including management, were not aware of the policy.
While alone in the store one day, Atkins drank orange juice before buying it, violating her employer’s “grazing” policy, because she was suffering symptoms of a hypoglycemic attack. (She had too little sugar in her bloodstream, which could cause her to pass out.) After the medical emergency passed, Atkins paid for the bottle of orange juice ($1.69 plus tax). Later, Dollar General’s district manager and loss prevention manager came to the store to address problems of missing inventory. They fired Atkins after she admitted drinking the orange juice before she bought it.
In 2014, the EEOC sued Dolgencorp, LLC, d/b/a Dollar General Corp, in the U.S. District Court for the Eastern District of Tennessee. The case went to trial this summer. In September, the jury returned a verdict for the EEOC and the victim, finding that her disability had not been accommodated and that she was fired due to her disability. It awarded the former cashier $27,565 in back pay and $250,000 in compensatory damages.
Employee Stuck in a No-Win Situation
Earlier, in July 2016, the judge in the case, Thomas Varlan, had issued a 50-page order stating why the case should not be dismissed and explaining that it needed to go to trial.
The defendant denied that Atkins requested a reasonable accommodation or that it failed to provide an accommodation. The store claimed that Atkins did not use the proper language when making her request and failed to make it clear why she needed the orange juice. She allegedly did not link it to her diabetes or use the company’s formal request process.
The court pointed out that the ADA does not require use of “magic words” like “accommodation” or even “disability” to make an accommodation request. There was evidence that Atkins told store management that she needed the juice due to her diabetes and to avoid a hypoglycemic attack. The store’s handbook (and the ADA) also stated that an accommodation request need not be formal. It was enough just to for an employee to talk to management.
The store claimed that it offered alternate accommodations to Atkins, including keeping juice in the break room or in her apron. One manager told her that she could drink the juice so long as she was not seen by security cameras. She just could not keep it by the register.
Judge Varlan wrote that since Atkins requested a reasonable accommodation, Dollar General was under an obligation to discuss the issue with her (called entering into an “interactive process”) so that both parties could reach an agreement on the issue that met their needs. He found that the store did not do that. At the inventory audit meeting, Atkins was told that she could talk to human resources about breaking the “grazing” policy. However, she never had the opportunity because she was fired before she could do so.
The judge found that Atkins sneaking orange juice out of camera range was not an appropriate accommodation because if she were caught, she would face discipline. To go to the break room to get the juice, Atkins would need to leave the store unsupervised, which also would have broken company rules. Atkins was never told she could keep the juice on her person. The judge wrote, “Atkins knew grazing was not allowed,” but the evidence “also establishes that she believed leaving the store unattended so she could take juice from the break room and storing juice in the front cooler were not allowed…. She further asserts that she did not believe keeping juice in her apron was feasible…. Defendant faults Atkins for choosing the wrong policy to violate.”
Judge Varlan pointed out that never during the litigation process had Dollar General claimed that keeping orange juice by the cash register would be an undue hardship for it. An undue hardship is a valid defense that an employer can use to deny an accommodation request. Moreover, additional evidence showed that other nondisabled employees who violated the “grazing” policy were not fired as Atkins had been.
Summing It Up
- Under the ADA, if you are disabled and need an accommodation to perform the essential functions of a job, then you need to do two things. First, you need to make a request to management seeking that change. Second, you need to communicate what you need and why. It need not be a formal request, but making one in writing and keeping a copy will help you in case your employer denies that you made the request.
- The two sides should discuss the situation and come up with a solution that is effective for the employee yet does not create an undue hardship for the employer.
- Employers cannot retaliate against employees for asking or receiving an accommodation.
- Employers also cannot fire employees because of their disabilities, unless the employee is not qualified to do the job.
If you have a disability and believe that you have been discriminated against, contact our office so we can talk about the situation, about how the law may apply in your situation, and about your best options for protecting your rights and interests.