Let’s say you have a worker with an obvious physical disability. The employee has not requested an accommodation. Nevertheless, you have some concern about the employee’s ability to perform the essential functions of their job. Is it okay to ask that employee if they can do their job? A district court in Hawaii recently found that a question of fact existed as to whether an employer terminated a disabled worker based on similar facts.
In Crowley v. Wal-Mart Stores, Inc., the plaintiff was a store manager who had taken several FMLA leaves for surgery to repair an injured ankle. Nevertheless, he still walked with a cane and wore a boot on the affected foot. On several occasions, his supervisor allegedly asked him if he was still able to do his job. The plaintiff told the supervisor that he was going to file an internal complaint over the remarks, which the plaintiff later overheard the supervisor complaining about to a regional director.
While on another leave, preparing for a fourth surgery on his ankle, the supervisor was involved in a safety inspection of equipment in the store, resulting in him ultimately recommending plaintiff’s discharge. The plaintiff sued claiming that his supervisor’s repeated questions of whether he could do his job, combined with his recommendation for termination evidenced disability discrimination.
The district court held that plaintiff was entitled to a jury trial on the question of whether he was fired because of his disability. The court noted that “a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the employer.” The supervisor’s questioning of the employee’s abilities could be direct evidence of discrimination. The plaintiff will have the chance to convince a jury that the reason given for his discharge was pretextual and the actual basis for his termination was his disability.
Employers should note that while it is important to engage in the interactive process when an employee requests a reasonable accommodation, which necessarily involves discussion of the worker’s ability to perform the essential functions of their job, one should not presume that a disabled worker is unable to perform their job (with certain obvious exceptions). Asking a worker whether they can do their job simply because they have a disability can be seen as evidence of discrimination. For the most part, employers cannot assume that an employee with a disability is not capable of doing their job.
If a disabled employee is experiencing performance problems which may be related to their disability, it is acceptable to meet with the employee and ask them if there is any reason for their performance issues which they wish to discuss. That approach makes the employee responsible for raising any issues about their disability while opening the door to a discussion on reasonable accommodation.