Panel Affirms Award Against Wal-Mart in Disability Bias Case

The Case

Mr. Brady, who suffers from cerebral palsy, alleged that Wal-Mart personnel asked him prohibited questions before hiring him, and later discriminated against him and created a hostile work environment.

Among his charges were that the store transferred him from the pharmacy to a position that required him to collect shopping carts. Mr. Brady's family and a treating psychiatrist testified that the conditions of his employment caused him severe emotional distress and one time spurred a total breakdown that sent him to the emergency room.

Mr. Brady signed a job description certifying that he had “the ability to perform the essential functions” of the position either “with or without reasonable accommodation.” He later testified, however, that soon after he began working, his supervisor, Yem Hung Chin, told him to “speed it up,” and appeared dissatisfied with him. Ms. Chin testified she was “completely alarmed at the time” and thought Mr. Brady's performance was “absolutely awful.”

Mr. Brady was ultimately assigned to the parking lot to collect garbage and shopping carts. When his father went to the store to complain, a manager arranged for Mr. Brady's transfer to the food department to stock shelves, but on a schedule that conflicted with his community college schedule. Discouraged, Mr. Brady quit.

A jury award of $2.5 million was reduced by Magistrate Judge James Orenstein to $600,000 and a punitive damages award of $5 million was reduced to the statutory cap of $300,000

The Appeal

On the appeal, Wal-Mart contended that the short duration of Mr. Brady's transfer to the parking lot meant he had not suffered an adverse employment action. The circuit disagreed, in part because Mr. Brady was not transferred back to the pharmacy.

Judge Calabresi explained that under Graves v. Finch Pruyn & Co., 457 F. 3d 181 (2d Cir. 2006), it is “generally” the responsibility of the employee to tell the employer that an accommodation is needed and the circuit had yet to decide when and under what circumstances the rule in Graves might not apply.

Judge Calabresi said the employer should know to take action when a disability is obvious, and there was a good reason for adopting that rule. “Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seeks an accommodation,” Judge Calabresi said. “In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.”

A redacted version of the decree was introduced for the limited purpose of showing that the retailer was aware of its obligations under the American with Disabilities Act.

Mark Hamblett is a reporter for the New York Law Journal, a sister publication of this newsletter.

An employer has a duty to reasonably accommodate an employee's disability where the disability is obvious even though the employee did not request an accommodation, a federal appeals panel has ruled.

Staking out an exception to the general rule that the requirement to accommodate is normally triggered by a disabled employee's request, the Second U.S. Circuit Court of Appeals said an employer must take action “if the employer knew or reasonably should have known that the employee was disabled.” Brady v. Wal-Mart Stores Inc., 06-5486-cv.

The circuit made the ruling in upholding a $900,000 award for compensatory and punitive damages, plus $644,000 in attorney's fees, to Patrick S. Brady on his ADA claim against Wal-Mart for the actions of its employees at a store in Centereach, Long Island, NY. Judges Amalya Kearse, Guido Calbresi and Robert Katzmann decided the appeal. Judge Calabresi wrote for the panel.

The Case

Mr. Brady, who suffers from cerebral palsy, alleged that Wal-Mart personnel asked him prohibited questions before hiring him, and later discriminated against him and created a hostile work environment.

Among his charges were that the store transferred him from the pharmacy to a position that required him to collect shopping carts. Mr. Brady's family and a treating psychiatrist testified that the conditions of his employment caused him severe emotional distress and one time spurred a total breakdown that sent him to the emergency room.

Mr. Brady signed a job description certifying that he had “the ability to perform the essential functions” of the position either “with or without reasonable accommodation.” He later testified, however, that soon after he began working, his supervisor, Yem Hung Chin, told him to “speed it up,” and appeared dissatisfied with him. Ms. Chin testified she was “completely alarmed at the time” and thought Mr. Brady's performance was “absolutely awful.”

Mr. Brady was ultimately assigned to the parking lot to collect garbage and shopping carts. When his father went to the store to complain, a manager arranged for Mr. Brady's transfer to the food department to stock shelves, but on a schedule that conflicted with his community college schedule. Discouraged, Mr. Brady quit.

A jury award of $2.5 million was reduced by Magistrate Judge James Orenstein to $600,000 and a punitive damages award of $5 million was reduced to the statutory cap of $300,000

The Appeal

On the appeal, Wal-Mart contended that the short duration of Mr. Brady's transfer to the parking lot meant he had not suffered an adverse employment action. The circuit disagreed, in part because Mr. Brady was not transferred back to the pharmacy.

Judge Calabresi explained that under Graves v. Finch Pruyn & Co. , 457 F. 3d 181 (2d Cir. 2006), it is “generally” the responsibility of the employee to tell the employer that an accommodation is needed and the circuit had yet to decide when and under what circumstances the rule in Graves might not apply.

Judge Calabresi said the employer should know to take action when a disability is obvious, and there was a good reason for adopting that rule. “Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seeks an accommodation,” Judge Calabresi said. “In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.”

A redacted version of the decree was introduced for the limited purpose of showing that the retailer was aware of its obligations under the American with Disabilities Act.

Mark Hamblett is a reporter for the New York Law Journal, a sister publication of this newsletter.