Kroger settles claims it failed to accommodate worker with vision impairment

Dive Brief:

Kroger has agreed to pay $40,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of a visually impaired man who the EEOC says was unlawfully fired after he requested an accommodation to complete his employee orientation.
The grocery store chain offered Michael Haugabrook a job as a courtesy clerk at its Jonesboro, Georgia store in March 2016. Haugabrook accepted the position and requested an accommodation to complete a computer-based portion of his orientation. Kroger’s management refused to accommodate him, the EEOC says. While Haugabrook was completing the assessment, he was called to the store manager's office and fired.
In addition to the monetary settlement, Kroger agreed to make "significant changes in its hiring process." These changes include providing employees with vision disabilities access to tools and resources such as magnification for computer-based and written onboarding and training programs, educating the workforce in Jonesboro on disability discrimination, posting a notice about the lawsuit for as long as the consent decree is in effect and reporting to the EEOC all employee requests for an accommodation under the Americans with Disabilities Act (ADA).

Dive Insight:

The ADA requires employers to provide reasonable accommodations to a qualified individual with a disability, unless doing so would create an undue hardship. Undue hardship means that the accommodation would be "too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business," the EEOC has explained. Because undue burden is a high legal standard for employers to meet, employment lawyers generally encourage employers to provide accommodations.

To determine worker accommodations, employers are expected to engage in an interactive, good-faith process. An employer can show good faith in several ways, such as meeting with the employee; requesting information about the employee's conditions and limitations; asking the employee about preferred accommodations; showing signs that it has considered the request and, if the request seems to be onerous, offering and discussing available alternatives.

Failure to engage in the interactive process isn't a stand-alone violation under federal law, though it is unlawful in Caifornia. However, it can be used as evidence of discrimination, while good-faith engagement in the interactive process can serve as a defense to a discrimination claim.

When courts examine failure-to-accommodate claims, they look at who caused the breakdown in the process, Michelle Seldin Silverman, a partner at Morgan Lewis, previously told HR Dive. Courts examine the "back-and-forth" and consider which person made the final offer, she said.

To help facilitate requests for accommodation under the ADA, some experts have suggested that HR should train supervisors to kick off the process with five key words: "How can I help you?"