Veteran With Disability Told: 'Use Other Latrine'

Plus, when public-accessibility requirements come into play, when it's too late to request FMLA leave, and other recent employment-law decisions.

Restroom use is an essential function of job. A veteran who uses a wheelchair was hired as a telemarketer. He quickly discovered that the company restrooms were not wheelchair accessible, so he requested that they be made so. His request was denied, however, and he was told he would have to find another restroom in some other building. This resulted in the employee having to go home whenever he needed to use a restroom. The employee subsequently quit, claiming constructive discharge, and sued under the ADA. In Lerman v. Xentel, the company defended by claiming that restroom use is not in any job description and was not an essential function of the job, thus requiring no accommodation. But the court disagreed. Forcing an employee to leave work every time a restroom is needed interferes with the essential function of attendance and the ability to work one's schedule (S.D. Florida, 2009).

Company's training at hotel is a public accommodation. Title III of the ADA generally requires companies to provide "public accommodations"—including restaurants, hotels, theaters and stores—to be physically accessible for people with disabilities. In Jensen v. United First Financial, the court validated a Title III ADA suit of independent-contractor sales representatives with hearing impairments. The company held sales meetings in a hotel conference center, but it did not provide the auxiliary technology or services necessary for people with hearing impairments. As a result, the sales reps could not effectively participate. The ruling: Once a company rents meeting space and "takes control" of that room, it becomes a "public accommodation" as to the program and must meet the Title III public-accessibility requirements (D. Utah, 2010).

Open position not considered. The ADA provides that when a disability renders one unable to do a job and there is no viable accommodation, the employee should be offered any vacant job at an equal or lesser level for which he or she is qualified and they can do. But in Lane v. Bremner Food Group Inc. (W.D. Kentucky, 2010), the evidence showed otherwise: The plaintiff was discharged because of an inability to do his job but was not considered for other vacancies that he may have been able to perform.

FMLA request during discharge meeting is ineffective. A technician with a long history of performance warnings and disciplinary actions failed to meet the last-chance performance-improvement standards. During the meeting to terminate his employment, the technician made a request for leave under the Family and Medical Leave Act (FMLA). It was denied, however, because he was being fired. He then sued, alleging (among other things) both denial of FMLA and retaliatory discharge for having requested FMLA. In Williams v. AT&T Inc. (5th Cir., 2010), the court dismissed the case. The reason: The plaintiff was unable to prove a serious medical condition and the decision to discharge had been made prior to the FMLA request. Therefore, it could not be in retaliation for the request.

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at

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