After working two years at a local pharmacy receiving and dispensing prescription drugs, Patrick Brady, a 19-year-old who has cerebral palsy, took a job as a pharmacy assistant at a Centereach, N.Y., Wal-Mart.

During his first shift in the pharmacy department, the pharmacy manager became concerned with Brady’s slow pace. The next week Brady was transferred to collecting shopping carts and garbage from the parking lot.
When he tried to get his pharmacy position back, his request was denied and he was moved to the food department instead. Discouraged, Brady quit.

He then sued Wal-Mart and his former boss Yem Hung Chin under the ADA, alleging Wal-Mart discriminated against him because of his disability and failed to accommodate his disability.

While he was employed by Wal-Mart, Brady never asked to be accommodated, and he later testified that he did not think he needed an accommodation. But the District Court for the Eastern District of New York found that Wal-Mart violated the ADA by discriminating against Brady on the basis of his disability and failing to reasonably accommodate him.

Wal-Mart appealed, alleging the District Court erred in not granting the company summary judgment on the failure-to-accommodate claim because Brady never asked to be accommodated. Brady, the company said, did not demonstrate he was disabled nor was he perceived by the company to be so.

A previous 2nd Circuit case, Graves v. Finch Pruyn & Co., found that “generally it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”

But in Brady v. Wal-Mart Stores Inc., 2nd Circuit Judge Guido Calabresi ruled July 2 that if Wal-Mart knew or had reason to know that Brady had a disability, it had an obligation to offer a reasonable accommodation. Calabresi wrote that if the employer knew of an employee’s disability, the company could not claim as a defense that the employee did not ask for an accommodation.

“This opinion says an employer has the responsibility to reasonably accommodate an employee with an obvious disability even if the employee does not request one,” says Jeffrey Braff, a member of Cozen O’Connor.

Perceived Disability
The 2nd Circuit found there was sufficient evidence showing Brady was disabled based on the description of his cerebral palsy, which causes him to move and speak slowly, and also found that there was evidence showing Chin knew or perceived Brady to be disabled.

The court said that if an employer has an employee he thinks is disabled, has a record of disability or he perceives to be disabled, which are the three levels of analysis in the ADA, then the responsibility falls on the employer to ask the employee if an accommodation is needed.

Calabresi wrote that the ADA requires that employers engage in an interactive process and work together with employees they perceive to have a disability to determine whether an employee’s disability can be reasonably accommodated.

“That’s the step that was missing in this case,” says Maria Danaher, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. “No one ever asked Brady if there was something that could be done to help him perform faster.”

And because Wal-Mart failed to do so, the 2nd Circuit affirmed the District Court’s decision to decline granting summary judgment on the failure-to-accommodate claim. Danaher says the 2nd Circuit is placing more of the burden on employers to ask an employee if they need an accommodation. “Employers should be aware of this interpretation of the ADA’s requirement for an interactive process,” she says.

Interactive Process
Although employers are prohibited from asking about an employee’s disability, using careful wording in making such an inquiry can lead to an employer getting an answer without directly asking about a disability.

Danaher suggests asking, “‘Is there something we could be doing to help you do your job better?’” She says that when an employer has an employee with a performance problem, the employer should address the performance problem in a professional and empathetic way.

Braff says employers in the 2nd Circuit need to be more vigilant in finding out whether an employee has a disability and needs an accommodation. Although the ADA generally prohibits employers from making medical inquiries after someone has been hired, he says there’s an exception for a business necessity.

“If the employee is clearly slow and not adequately performing their job, that affects your business,” Braff says. “However, I am not advising that employers ask every single employee they perceive to be somewhat slow if they are disabled. That will get you into trouble the other way.”

Braff stresses employers are only required to accommodate disabilities as defined under the ADA statute, so it’s important to engage in that interactive process with an employee to find out if the reason for an employee’s underperformance is actually a disability that requires accommodation.