Labor law for supervisors: training for the disabled.

In an era of constant technological advances, training of employees is critical for companies attempting to stay abreast of change. Sometimes employers are faced with having to make decisions as to exactly which employees will receive particular types of training. In some instances, it is a

Because supervisors often are involved in making these decision, knowledge of the legal ramifications of denying a disabled employee training may be valuable in avoiding lawsuits. The following case demonstrates some of the factors that are employed by courts in deciding whether or not an employee with a disability should receive particular training. The plaintiff in the lawsuit was born without a left arm below the elbow. She worked for the optical services department of a manufacturing enterprise. That department provided digital scanning services to all of the company's business units by scanning documents into a computer and indexing them. The plaintiff's position primarily involved indexing but also included preparing papers for scanning, maintaining the copy machine, running a low speed scanner and ordering office supplies. In order to perform her job, the plaintiff needed several accommodations, such as a typing stand, poster putty and a tacky finger compound to improve finger grip, as well as occasional rearrangement of items in her work space. Although there was some disagreement in the case about how willing the company was to provide these accommodations, there was no question the plaintiff was able to perform the essential functions of her job. Indeed, the company agreed that, after her first few weeks in the position, the plaintiff's work was average or better, and she could perform her job of indexing as fast as a person with two hands.

It was not the plaintiff's ability to perform the required functions of her job that was at issue in the case. Rather, it was the plaintiff's repeated, unsuccessful requests to receive training on two additional pieces of equipment, a high speed scanner and a console, that generated the lawsuit.

With respect to the console, both the trial and appellate courts agreed with the defendant company the plaintiff was not entitled to training on that piece of equipment. Operation of the console was not in the province of the plaintiff's job, and she was not qualified for the position involving operation of that piece of equipment. The high speed scanner, however, posed a different question.

Although the high speed scanner was important to the productivity of the department, it was not a job requirement for employees in the department to be able to run it. In fact, only seven of the 21 people in the department at the time were completely trained to run that piece of equipment. The defendant argued the plaintiff's lack of training on the scanner had no effect upon her pay, benefits, hours, title or opportunity to advance. The plaintiff argued it did affect her ability to advance, because training on the scanner would render her more attractive in terms of promotability. Furthermore, she argued that even if lack of training on the scanner did not affect her opportunities for advancement, she should receive the training because every other employee who had expressed an interest in operating the scanner was given the training to do so.

The plaintiff's supervisor, who was the head of the department, conceded he refused to train the plaintiff on the scanner because of her disability. It was his belief two hands were required to clear paperjams and straighten documents emerging from the machine. He expressed concern the plaintiff would not be able to handle the machine, and even if she could, she would be too slow and/or need assistance. Additionally, the design of the machine, in his estimation, would pose problems for an individual with a left-side disability because of the location of the control settings. After her repeated requests for training were denied, the employee filed suit. She alleged, among other theories, violations of the Americans with Disabilities Act. The trial court judge granted summary judgment for the defendant; however, the Seventh Circuit Court of Appeals reversed on a question involving operation of the scanner and sent the case forward for trial.

The Americans with Disabilities Act prohibits discrimination against a qualified person with a disability because of that person's disability with respect to, among other things, training opportunities. It was clear in the case the plaintiff suffered from a disability as defined by the statute. It was also clear the plaintiff was qualified for her position under the terms of the act. To be qualified, she had to satisfy the prerequisites for the position and be able to perform the essential functions of the job with or without reasonable accommodation. The plaintiff argued the defendant had engaged in disparate, or different treatment of her because of her disability and had also failed to reasonably accommodate her. The disparate treatment claims arose under the section of the ADA that prohibits employers from treating an employee differently from others at work because of a disability in a manner that adversely affects the employee. The reasonable accommodation claims arose from the provision of the statute that make it unlawful for a company to fail to make reasonable accommodations to the known disabilities of an otherwise qualified employee. A disparate treatment claim can be proven either by providing direct evidence of discrimination or by providing indirect evidence of discrimination which creates an inference of discrimination. In cases involving indirect evidence, the burden shifts to the defendant who must provide a legitimate, nondiscriminatory reason for its actions which the plaintiff then has an opportunity to counter. Additionally, the plaintiff usually has to show the existence of an adverse employment action taken on the basis of the disability. This is not true in cases demonstrating direct evidence of discrimination. In a failure to accommodate case, the plaintiff must only show the employer was aware of the disability and, nevertheless, did not reasonably accommodate it. Accommodations may include such things as altering training materials, modifying equipment and making existing facilities accessible and usable.

In addressing the issues in the case, the appellate court emphasized the company was not required to train the plaintiff on the high speed scanner if she was not capable of running it. The ADA did not force employers to let employees use equipment they could not operate or to suffer a drop in productivity to allow a disabled employee to use a particular piece of equipment. However, there existed an important question as to whether or not the plaintiff actually could operate the equipment. She had never been allowed to try. It was clear she was qualified to perform the essential functions of her job. What wasn't clear was whether she was qualified to perform the non-essential function of running the high speed scanner.

The court noted Congress in passing the ADA was concerned companies were making employment decisions based on unwarranted stereotypes of disabled individuals. Because of that, the ADA discourages employment decisions based on generalizations and stereotypes associated with a disability as opposed to the individual's actual attributes. A nondisabled person's instincts about the capacity of a disabled person are apt to be wrong. Accordingly, a supposition that two-handed people use both hands to operate a high speed scanner, or that most people with one hand would not be able to operate it, does not resolve the question of whether or not a particular one-handed person would be able to operate that piece of equipment. The plaintiff in the case had offered evidence about her ability to clear jams in the copy machine by herself and had offered an explanation of how she planned to deal with handling paper on the scanner. This evidence had not been adequately countered by the defendant. Therefore, at this point in the proceedings, the court had to assume the plaintiff was physically capable of operating the high speed machine.

An employer may deny training to an employee for any reason other than an unlawful, discriminatory one. In the case before it, the plaintiff had shown direct evidence of discrimination because the supervisor had conceded he denied her request for training because of her disability. The plaintiff was not asking for special training because of her disability, nor was she requesting training for another position. Rather, she was seeking the same type of training that had been given to others in her department who had requested it, training related to her current position. While the employer did not have the duty to train someone who could not perform, the employer did have the duty to actually make an inquiry as to whether or not the employee in question would be able to perform. The court decided to remand the case back to the trial court to allow the plaintiff a chance to show she was physically capable of running the machine. Had the plaintiff not had direct proof of discrimination, but had raised only an inference of discrimination, the defendant company possibly could avoid liability by stating a legitimate business reason for its decision to deny training.

The question with respect to the plaintiff's failure to accommodate claim was whether or not the company would have to accommodate the plaintiff if she could not operate the high sped scanner without an accommodation. The appellate court noted the plaintiff had already been accommodated to allow her to preform the essential functions of her job. While the court regarded it as admirable the plaintiff also wanted to perform a non-essential function, the employer could choose whatever reasonable accommodations wanted to. The ADA requires an employer make reasonable accommodations for an employee to perform essential functions of a job, including removing any nonessential functions. However, it does not require the employer accommodate an employee seeking to perform nonessential job functions or to provide a costly accommodation that is disproportionate to the benefits. The company here had chosen allowing others to run the high speed scanner as its accommodation and was entitled to do so.

Therefore, the company was not required to provide another accommodation if the plaintiff proved unable to operate the high speed scanner by herself.

One judge dissented on the grounds the plaintiff had not suffered any adverse job action as a result of the company to train her. Hoffman v. Caterpillar, Inc., 11 ADA Cases (BNA) 1674 (7th Cir. 2001).

RELATED ARTICLE: IN A NUTSHELL

(1.) Employers may deny training to employees for any reason other than an unlawful, discriminatory reason.

(2.) The Americans with Disabilities Act prohibits discrimination against a qualified person with a disability because of that person's disability with respect to training opportunities.

(3.) The Americans with Disabilities Act also makes it unlawful for a company to fail to make reasonable accommodations to the known disabilities of an otherwise qualified employee with respect to the essential functions of a job, including issues related to training.

(4.) An employee with a disability may show unlawful disability-based discrimination by either direct or indirect evidence.

(5.) Companies are not required to train disabled employees on equipment if they are not capable of running the equipment or if their running it would cause a drop in productivity or occasional accommodation costs disproportionate to the benefits of training.

(6.) Because supervisors are often involved in making decisions about who to train, knowledge of the legal implications of denying a disabled employee training is valuable in avoiding lawsuits.

Mary-Kathryn Zachary, J.D.