Even a Single Failure To Provide an Agreed-Upon Accommodation Can Be Costly

Second Quarter 2010Newsletters California Update Employment Law

A recent California decision stresses the importance of ensuring supervisors are immediately made aware of agreed-upon accommodations and that such accommodations are consistently provided.

The plaintiff in A.M. v. Albertsons, LLC returned to work as a cashier after undergoing cancer treatment. Due to the effects of the treatment, she had to constantly drink water and urinate frequently. The employer agreed to allow the employee to drink at the checkstand and to provide bathroom breaks as needed. The employer successfully provided these accommodations from January 2004 until February 2005.

In February 2005, a new manager began working at the store. This manager did not know about the employee's disability or the store's accommodation. On February 11, 2005, the employee asked the manager for a break. At the time, the manager was the only employee on duty who could relieve the employee at the checkstand. The manager asked the employee if she could wait because a delivery truck was arriving, and the employee agreed to do so. A while later, when the employee had a line of customers at her checkstand, she told the manager she needed to go to the bathroom. The manager told her she could not relieve her because she was busy unloading merchandise. Approximately 10 minutes later, as the plaintiff still had a line of customers, she again told the manager she really needed to use the restroom. The manager again told the employee that she was too busy to relieve her. The employee could not control herself and urinated while standing at the checkstand.

The employee became severely distraught and developed severe anxiety and depression, including thoughts of suicide. She sued her employer for failing to accommodate her disability under the California Fair Employment and Housing Act (FEHA). A jury found in the employee's favor and awarded her $200,000 in damages, including $148,000 for past emotional distress.

The Court of Appeal affirmed the judgment, holding that employers can be liable for even a single failure to provide an agreed-upon reasonable accommodation. The court disagreed with the employer's contention that, by not informing the manager of her disability and accommodation, the employee had failed to meet a continuing duty to communicate. The court reasoned that, once the parties have identified and agreed upon an accommodation, the employee does not have a duty to inform every new supervisor of the accommodation. Instead, that responsibility falls squarely with the employer.

The court also rejected the employer's argument that its February 2005 failure to accommodate was trivial because it constituted a single incident in the context of a much longer period of successful accommodation. The court, however, held, that "a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated."

Employers should learn from this defendant's costly mistake by carefully documenting all reasonable accommodations and ensuring that supervisors are up-to-date and consistently provide agreed-upon accommodations.