Waterway Gas and Wash Company (“Waterway”), a Missouri-based corporation with locations across five states, has agreed to pay $70,000 to its former employee as part of a consent decree “to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).”[i] The suit was brought after Waterway fired plaintiff approximately two weeks after he suffered a seizure at work. Waterway refused to confer about reasonable accommodations that could be made for plaintiff’s epilepsy.
The EEOC alleged plaintiff was fired both because of his disability and as retaliation for his request for reasonable accommodation and filed suit on plaintiff’s behalf in the United States District Court for the District of Colorado. The EEOC claimed the company’s conduct violated the Americans with Disabilities Act (“ADA”). Amy Burkholder, field director of the EEOC’s Denver Field Office, noted, “the EEOC receives hundreds of complaints of disability discrimination based on epilepsy” every year.[ii] People with epilepsy “face higher rates of unemployment and underemployment than the general population.”[iii]
The ADA in the Workplace
Employers with 15 or more employees are subject to the ADA.[iv] Under the ADA, “an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question” is considered a qualified employee with a disability.[v] “Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities.”[vi] Reasonable accommodations can and do vary widely. For example, an employee with epilepsy may request a reasonable accommodation for someone to drive him to work-related events. A deaf job applicant may ask for a sign language interpreter in her interview as a reasonable accommodation.
The employer must make a good-faith effort to accommodate the employee or applicant. “An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an ‘undue hardship’ on the operation of the employer’s business.”[vii] The test for what constitutes an undue hardship is whether the “action requir[es] significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.”[viii] Typically, the employer is not required to “provide a reasonable accommodation unless an individual with a disability has asked for one.”[ix] Further, employers are not expected to lower the quality or standards of their production in order to make an accommodation.
Here, Waterway made several missteps in violation of the ADA. Had these mistakes been avoided through adherence to clear federal guidelines, Waterway could have dodged this litigation entirely. First, plaintiff did his part by asking for a reasonable accommodation. His doctor signed off on his ability to perform the essential functions of the job and released plaintiff to work.[x] Not only did Waterway fail to make a reasonable accommodation for plaintiff, but the EEOC’s lawsuit “alleges that Waterway refused to discuss [plaintiff’s] request for accommodation and denied it without explanation.”[xi]
Following his seizure, plaintiff’s manager “showed the video recording of …[plaintiff’s]… seizure to other Waterway employees at the Lone Tree Location.”[xii] While an employee may voluntarily choose to tell his coworkers about his epilepsy, “the employer must [still] keep this information confidential consistent with the ADA” and may not disclose it to other employees.[xiii] Furthermore, medical information “can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.”[xiv] Thus, employers should be aware sharing video footage depicting an employee in a medical crisis could be a violation of the employee’s privacy.
Employers should also note “[t]here are no ‘magic words’ that a person has to use when requesting a reasonable accommodation.”[xv] The person simply needs to express to the employer that he “needs an adjustment or change at work” because of his disability.[xvi] With epilepsy, if “driving is an essential function of a job, an employer does not have to eliminate it . . . . [but] should carefully consider whether driving actually is an essential job function, a marginal job function, or simply one way of accomplishing an essential function.”[xvii] If the employee can perform the essential job functions with an accommodation, or where driving is not an essential part of the job, “the fact that an individual with epilepsy does not have a driver’s license cannot be used to deny the individual an employment opportunity.”[xviii]
Here, plaintiff’s discharge form stated that he was terminated for failing to maintain a valid driver’s license.[xix] Contrarily, plaintiff “held a valid Colorado driver’s license” at all relevant times.[xx] Had plaintiff been without a valid driver’s license, this justification would likely still violate the ADA in this case. Waterway is a large, national company with the resources to make reasonable adjustments. Additionally, Line Associates (like plaintiff) work in pairs where one Line Associate “typically drives the car into and out of the car wash” then both Line Associates work together to clean and dry the car.[xxi] Thus, it would have been fairly simple for Waterway to excuse plaintiff from driving and have the Line Associate he was paired with take over the driving obligations. This straightforward accommodation would not have placed an undue burden on Waterway or hindered its production quality.
The Job Accommodation Network (“JAN”) is “the leading source of free, expert, and confidential guidance on job accommodations and disability employment issues.”[xxii] JAN offers “one-on-one practical guidance and technical assistance on job accommodation solutions” at no cost through “individualized consultation to assist Employers and their representatives seeking guidance on practical ways to engage in the interactive process, provide job accommodation solutions, and comply with Title I of the ADA.”[xxiii] Employers should familiarize themselves with the resources available to help them comply with federal laws. While an employer may not always know how to best accommodate a disabled employee, resources like JAN and the EEOC’s website can help employers comply with federal workplace laws and regulations.
Employers and their agents should be well acquainted with federal laws governing the workplace, such as the ADA. Failure to do so can be costly. Remedial costs and litigation costs can be avoided altogether through utilizing free resources like JAN and the EEOC’s website to enhance compliance. Here, the direction to terminate plaintiff was made at the corporate level, evincing the need for stronger compliance training and awareness of applicable laws at all levels of an employer’s business.
Madison Miller co-authored and is a law clerk in Tyson & Mendes’ 2022 clerkship program.
[i] Press Release, U.S. EEOC, Waterway Gas and Wash Company Settles EEOC Disability Discrimination Case (July 1, 2022), https://www.eeoc.gov/newsroom/waterway-gas-and-wash-company-settles-eeoc-disability-discrimination-case.
[iv] Fact Sheet: Disability Discrimination, U.S. EEOC (Jan. 15, 1997), https://www.eeoc.gov/laws/guidance/fact-sheet-disability-discrimination.
[x] Press Release, U.S. EEOC, EEOC Sues Waterway Gas & Wash Company for Disability Discrimination (Sept. 12, 2019), https://www.eeoc.gov/newsroom/eeoc-sues-waterway-gas-wash-company-disability-discrimination.
[xii] Complaint at ¶ 63, EEOC v. Waterway Gas & Wash Co., No. 1:19CV02583 (D. Colo. filed Sept. 11, 2019), 2019 WL 13198178.
[xiii] Epilepsy in the Workplace and the ADA, U.S. EEOC (May 15, 2013), https://www.eeoc.gov/laws/guidance/epilepsy-workplace-and-ada.
[xiv] Fact Sheet: Disability Discrimination, supra note iv.
[xv] Epilepsy in the Workplace and the ADA, supra note xiii.
[xix] Complaint at ¶ 112, EEOC v. Waterway Gas & Wash Co., No. 1:19CV02583 (D. Colo. filed Sept. 11, 2019), 2019 WL 13198178.
[xx] Id. at ¶ 24.
[xxi] Id. at ¶¶ 37-39.
[xxii] About JAN, Job Accommodation Network, https://askjan.org/about-us/ (last accessed Aug. 9, 2022).