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A Good Example of How Not to Comply with the ADA

The settlement of a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) aptly demonstrates the adage that sometimes the best example is a really bad example.

The EEOC filed the suit in 2017, alleging that Hester Foods, which operated a Kentucky Fried Chicken restaurant in Dublin, Georgia, had violated the Americans with Disabilities Act (“ADA”) by firing its restaurant manager when the company’s owner found out that the woman was taking medication prescribed by her doctor to treat her bipolar disorder.

According to the EEOC lawsuit, when the owner discovered the woman was receiving the treatment, he referred to the manager’s medications in obscene terms, and made her destroy her medications by flushing them down a toilet at the restaurant. When the woman later told the owner that she planned to continue taking the medications per her doctor’s orders, the owner told her not to return to work and fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to paying a $30,000.00 settlement, the consent decree settling the ADA lawsuit requires the restaurant operator to create and disseminate a handbook containing policies that prohibit discrimina­tion. The decree also requires that the company provide annual equal employment opportunity training to its managers, supervisors, and employees. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.  In commenting on the settlement, Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office stated “Employers are not allowed to force workers with disabilities to choose between their jobs and their health. Reasonable accommodation includes allowing workers to rely on their physicians, not on the opinions of the company managers.”

The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations.

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. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee, and must be judged on a case-by-case basis.
 
Making a reasonable accommodation can sometimes be difficult but more often, can be addressed through common sense and engaging in an interactive process with the employee.  As illustrated by this case, failure to do so can be costly.

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About Mark Fijman

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Mark Fijman specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. He is an attorney in the Labor and Employment Section of law firm Phelps Dunbar, LLP’s Jackson, Mississippi office. He can be contacted at (601) 360-9716 or FijmanM@Phelps.com.

Fijman represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels on issues ranging from overtime questions to discipline and termination decisions. Direct phone: (601) 360-9716.  Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.

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