FIRING OF DWARF LANDS STARBUCKS IN HOT WATER

Charles D. Lawson

The Equal Employment Opportunity Commission has filed suit against Starbucks for violating the Americans With Disabilities Act (ADA) when it terminated an employee with dwarfism.1

Although the barista job description for which Elsa Sallard applied stated that no experience was necessary, she was only provided three days' training before she was fired. The termination followed soon after Sallard had asked for a stool or stepladder to assist her in serving customers at the counter. Starbucks said it made the decision to end her employment because the company believed she posed a danger to customers and to other employees.

Joel Clark, the EEOC trial attorney handling the matter, stated that "Starbucks flatly refused to discuss Ms. Sallard's reasonable request [for accommodation]. Instead, they assumed the worst and fired her. The ADA was enacted to prevent that kind of misguided, fear-driven reaction."

Requirements of the ADA.

Employees with disabilities, as defined under the ADA, are entitled to "reasonable accommodations" that permit them to perform the essential functions of their positions. Under the newly amended ADA, with its broadened definition of "disability," individuals suffering from conditions affecting "one or more body systems" are entitled to the Act's protections. Because most dwarfism-related conditions are the result of genetic disorders, an individual suffering from such a condition must be offered reasonable accommodation.

In this case, it appears that Starbucks will be relying upon the "direct threat" defense to a claim under the ADA. Such a defense is available when an employee poses "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 CFR § 1630.2(r).

The regulations implementing the ADA set forth the process an employer must follow in assessing whether a particular employee poses a "direct threat" to herself or others:

The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.2

In this case, the EEOC appears to believe that Starbucks failed to engage in the required "individualized assessment" regarding Sallard, but instead simply acted upon stereotypical beliefs regarding her ability to safely perform her job. Factually unsupported assumptions of this kind are forbidden by the ADA.

Lessons for Employers.

Under the broadened definition of "disability" in the amended ADA, employers must carefully analyze whether an employee falls within the protection of the Act. In borderline cases, it may be safer to assume that the employee is entitled to the Act's protections, since the EEOC has taken the position that the amended Act was intended to remove the focus from whether a person has a disability, to whether reasonable accommodations are available and/or have been provided by the employer.

In every case, decisions regarding an employee with a disability must not be based upon assumptions or stereotypes, but upon cold, hard, objective facts and evidence. Similarly, any assessment regarding whether a person poses a "direct threat" to the safety of herself or others must be based upon "the most current medical knowledge and/or on the best available objective evidence."

Consult the Author or a member of our Labor and Employment Group in advance of any significant action regarding such an employee, for help in formulating appropriate accommodations, or for assistance in assessing the availability of the "direct threat" defense to any particular employment action.

About the author: Mr. Lawson received his B.S. from the University of Tennessee at Chattanooga, magna cum laude, in 1994, and his J.D. from Vanderbilt University in 1997 where he was elected to the Order of the Coif. He is a member of GKH's Labor and Employment group and specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law. He provides regular employer counseling on issues ranging from workplace policy development and labor law compliance to non-competition and confidentiality issues. He also defends employment claims filed with administrative bodies such as the EEOC and the Tennessee Human Rights Commission, as well as claims filed in state and federal court. Mr. Lawson's work with employers is designed to educate them about particular areas of the law governing the employment relationship, with a focus on minimizing exposure to employment-related claims and providing cost-effective litigation strategies should litigation arise.

1 Case No. 3:11-CV00195-FM; U.S. District Court for the Western District of Texas.

2 29 CFR § 1630.2(r)(1)-(4).