Reasonable Accommodation for a Disabled Employee May Require More than a Title III-Compliant Workplace

By Ted Olsen

Title III of the Americans with Disabilities Act generally requires covered "public accommodations" (as defined in 42 U.S.C. § 12181(7)) - such as restaurants, hotels, theaters, stores, and malls  - to be physically accessible to disabled persons.  Indeed, the ADA Accessibility Guidelines ("ADAAG Guidelines") set forth in great detail the required location, height, width, depth, level and the like of the physical conditions, parking and equipment at a public accommodation.  By complying with the ADAAG Guidelines, a public accommodation complies with Title III.

Title I of the ADA generally requires covered employers to make "reasonable accommodation" for disabled employees.  Such reasonable accommodation includes a physically accessible workplace for disabled employees.  A recurring question is whether an employer's duty to provide "reasonable accommodation" to disabled employees is satisfied when it has a premises in compliance with the ADAAG Guidelines.

A recent case from the U.S. District Court for the Southern District of Florida, Lerman v. Xentel, Inc., Case No. 08-62077-CIV (S.D. Fla. Dec. 2, 2009), illustrates how an employer's duty to reasonably accommodate a disabled employee may be more onerous than a public accommodation's duty to be physically accessible to disabled persons.    

In Lerman, a war veteran with back and spine injuries "rendering him an incomplete paraplegic," claimed that, the first day on his job as a telemarketer, he "was unable to access the toilet, sink . . . [and] paper towel dispenser."  He alleged that, when he raised the subject with a supervisor and the corporate office, he was told to use the bathrooms of nearby businesses and not to expect any change in the condition of the restroom at the Xentel facility.  The first day of work, he went home to use the bathroom.  The second day, after being spurned by someone from the corporate office, he quit, claiming a constructive discharge. 

The employer's main defense was that its bathrooms complied with Title III of the ADA.  It appears from the plaintiff's affidavit that the bathroom may have been in compliance with Title III, but was still not accessible to him.  His affidavit complained that the bathroom was filthy, that he could not get close enough to the toilet to do a slide-over transfer, that he could not get his knees under the sink so he could use it, that he could not reach the paper towel dispenser.  Notably, the affidavit did not assert the bathroom violated the requirements of the ADAAG Guidelines.  The Court denied the employer's summary judgment motion, ruling in part that the employer had the duty to accommodate Lerman, even if its bathroom did not violate Title III.

The employer also argued that he quit his employment and was not compelled to resign.  The Court ruled there was a genuine issue of material fact as to whether Lerman's working environment was so unbearable that a reasonable person would be compelled to resign.

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© 2010 Sherman & Howard L.L.C.                                                   January 5, 2010