William W. Bowser, Editor; Scott A. Holt and Adria B. Martinelli, Associate Editor
Young, Conaway, Stargatt & Taylor

Vol. 13, No. 4
April 2008

REASONABLE ACCOMMODATIONS

Lights out for store manager who couldn't work regular schedule

Scott Holt and Maribeth Minella

The Americans with Disabilities Act (ADA) is designed to level the workplace playing field by breaking down job barriers that individuals with qualified disabilities may face. If an employee with a protected disability informs you that he needs a reasonable accommodation, you should engage in a flexible, interactive process to determine what effective options can be offered. Keep in mind, however, that you don't have to provide an accommodation that would compromise the employee's essential job functions, subject you to significant difficulty or expense, or negatively affect your quality or production standards.

Promotion leaves manager in the dark

Paula Pagonakis was hired by Limited Brands as a part-time salesclerk. She claimed she needed certain accommodations as a result of a car accident that left her with cognitive and visual disabilities. Her manager agreed and allowed her a flexible schedule, including working daylight hours only. Eventually, she was promoted to a full-time position and then to comanager ― a position that required her to work a consistent schedule and close the store at night. Pagonakis' manager allowed her to keep the flexible schedule, although her manager didn't inform corporate HR about the accommodation.

When HR found out about Pagonakis' schedule, it suspended her accommodations until she could provide evidence of her disabilities. In addition to requiring her to work evenings, Pagonakis claimed that management purposely moved meetings to nighttime and assigned tasks that required her to climb, both of which had previously been changed to accommodate her.

Pagonakis eventually filed suit against her employer, claiming discrimination and retaliation under the ADA. The employer defended its decision by providing statements from other employees that working 40 hours per week and evening shifts were essential functions of the comanager position.

Court's decision

The district court ruled in favor of Limited Brands. It found that employers should be given wide latitude to set hours and schedules for positions and that Pagonakis' inability to work the required schedule increased the employer's overall costs. It also found that the evidence supported Limited Brands' claim that the comanager position required opening the store and closing it in the evenings. Since Pagonakis stated she couldn't work at night, close the store, or maintain a regular 40-hour workweek, she failed to demonstrate that she could perform the essential functions of the position. Pagonakis v. Express LLC, slip. op., C.A. No. 06-027 (SLR) (D. Del., Feb. 14, 2007).

Bottom line

This case illustrates several important points. First, any requests for accommodations should be supported by evidence that the employee has a qualifying disability unless the disability is readily apparent. Next, all requests for accommodations should be directed to the employer's HR department to ensure consistency and compliance with the ADA. In this case, the fact that the employee's manager allowed her to have a modified schedule, apparently without consulting the HR department, may have contributed to what eventually became a lawsuit.

Finally, it didn't appear from the court's decision that the employer had a written job description for the comanager position. When you have clearly defined written job descriptions, it's easier to figure out whether an employee's request for disability accommodations can be made.

Copyright 2008 M. Lee Smith Publishers LLC

DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.