Implied’ disabilities? Courts come down hard in new case

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Implied' disabilities? Courts come down hard in new case

July 15, 2008 by Sam Narisi

http://www.hrlegalnews.com/implied-disabilities-courts-come-down-hard-

in-new-case/

When it comes to disability accommodations, HR managers have their

work cut out for them. And thanks to a recent court ruling, you might

get an even bigger burden.

A Wal-Mart employee suffered from cerebral palsy and had trouble

doing his job quickly. He was demoted. After attempting to get his

old job back, he was transferred to a third position, still below the

level of his original job.

He quit and sued the company for failing to accommodate his

disability. Here's the twist: He never told the employer about his

disability or used it to explain his struggling performance.

Therefore, the company argued it had no obligation to accommodate the

disability since it was never brought to anyone's attention.

The court disagreed. The judge acknowledged that it's generally up to

employees to tell their employers they need an accommodation — but

not always. The law says companies are on the hook as long as

they " know or should have known " about an employee's disability. And

that can include situations in which the disability is noticeable

before the employee brings it up.

In this case, witnesses said the man's disability was obvious " just

by looking at him. " Therefore, the court said, the company had an

obligation to start a discussion about possible accommodations.

When are disabilities `obvious'?

What does the decision mean for employers? Experts say in most cases,

it's still up to the employee to raise the issue. But HR might want

to make managers aware that in certain blatant situations, waiting

for the employee to ask for an accommodation might not be enough.

If a manager believes an employee is disabled, the best strategy is

probably to have him or her come to HR before any decisions are made.