Can the ADA Pave His Way to the NBA

July 22, 2009
Almost everyone who ever attended University of Kansas is a Jayhawk basketball fan. Especially me. And I can play the game—I know I can. I daydream about dashing down the court, receiving the long pass and making the shot that wins the Final Four. Then I’m on to the National Basketball Association to join Jayhawks Paul Pierce with the Boston Celtics or Kurt Heinrich with the Chicago Bulls. Tough economy? Not for me—I’ll be making huge dollars in the NBA.

Here’s the reality: I’m 59 years old. I’m 5 feet, 10 inches tall. I practice law for a living, and my 16-year old stepdaughter wearing Ugg boots while texting on a cell phone can run circles around me on a basketball court.

But wait, there’s hope! Some recent court decisions “guarantee” equal employment results under the Americans with Disabilities Act by ordering reasonable accommodations that mandate success for the disabled employee. I just need to come up with a mental or physical disability that is protected under the ADA (and that’s easy with the new Americans with Disabilities Amendments Act enacted in January 2009). Under those federal court decisions, the NBA will be required to accommodate my limitations. Ridiculous? Read on.

Consider the recent appeals decision of Tobin v. Liberty Mutual. Plaintiff Tobin was an insurance salesman whose bipolar disorder hampered his focus and concentration. He had difficulties in prioritizing and completing work in a timely manner. Stress tended to worsen Tobin’s inability to manage his workload, and over the years, Tobin routinely fell short of annual quotas for new policy sales. In short, he couldn’t sell.

Tobin was warned repeatedly that failure to meet his sales requirements would lead to probation and possible termination. Then Tobin took two extended leaves of absence for his disability. Each time he returned from leave, Liberty Mutual placed him on a reduced schedule to allow additional training and regular meetings with his supervisor to review his performance and discuss ways he could increase his sales. When Tobin returned from his second leave, Liberty Mutual hired a nurse to assist him in transitioning back into full-time sales work.

Month after month, Tobin failed to sell enough policies to meet his quota. Finally, 11 months later, he was terminated for consistent poor performance. He sued Liberty Mutual, claiming that the company should have assigned him to a “mass marketing” account, a highly valued account offering access to a large number of potential clients in a single location. Mass marketing accounts were distributed solely on the basis of merit to sales representatives who were actively pursuing other accounts and who met their sales quotas. Tobin had been unable to meet any of his quotas for years. Yet he asserted that a “reasonable accommodation” for his disability would have been Liberty’s assignment to him of the highly valued mass marketing account.

The “very generous and indulgent” jury (these are the appeals court’s words) awarded Tobin more than $1.3 million. The appeals court upheld all but $90,000 of the award and ruled that Tobin’s requested accommodation of assignment of the mass marketing account would not have been an unreasonable burden on Liberty Mutual. In doing so, the court ruled the appropriate accommodation was to give Tobin more sales, with equal results. I’ll use this case in my march to the NBA.

Next up is Olian v. Board of Education of City of Chicago, which gives new meaning to the basketball term “sixth man.” Plaintiff Rosalyn Olian, an employee at Chicago’s Thurgood Marshall Middle School, worked as a counselor for a number of years until the principal notified her she would need to start teaching a “guidance” class to students, teaching life skills and the importance of avoiding gangs and drugs. Olian was responsible for developing the curriculum and teaching the class. Olian objected to teaching because she was content in the role of counselor. However, the school needed a teacher and Olian finally agreed to teach that class.

Olian was a cancer survivor. She suffered from a disability caused by aggressive radiation therapy she underwent years before, and as a result her ability to breathe and speak was substantially impaired. Her teaching methods included showing numerous videos to students. Teaching the guidance classes put a major strain on her voice and her classes became disruptive and unruly. Olian requested a “reasonable accommodation” of a “parent helper” and a microphone and speaker system, but the school failed to provide the requested accommodations.

Olian was ultimately terminated and, of course, sued the school district. She won. And the jury’s verdict awarding Olian almost $250,000 was affirmed by the appeals court. In upholding the verdict, the court approved a classroom helper. The court mandated an equal result, not the equal opportunity: If Olian could not attain an equal result on her own, the school district was required to add staff until she could.

Titus v. Home Depot is also helpful for my case. Robert Titus, hired as a manager at a Home Depot in Pennsylvania, was required to perform management and training functions and other service tasks that required physical labor. Some time later, Titus was injured on the job, resulting in permanent damage. Titus requested that Home Depot make “reasonable accommodations” for him, including promoting him to a higher management position. Home Depot declined to promote Titus, and he sued. He won. Forget equal opportunity—let’s accommodate with guaranteed results.

Here’s a review of the ADA’s requirements for “reasonable accommodation.” Under the ADA, employees who claim “failure to accommodate” must prove only three things:

  • They are qualified individuals with disabilities.
  • The employer knew of their physical or mental limitations associated with the disability.
  • The employer failed to make reasonable accommodation for the employees.

Unless an employer can prove it would suffer “undue hardship” in the operation of the business, the employer is required to provide the requested accommodation.

As seen from the cases above, requested accommodations can range widely, apparently subject only to the fertile minds of plaintiffs and their lawyers. Employers should keep in mind that requests and granting of reasonable accommodation requests will ultimately be weighed against the accommodations given to other employees (disabled or not).

Remember, these are disparate-treatment cases, and there are solid legal arguments as to why these accommodations must be provided. In the arena of reasonable accommodation, the old adage that “your exception becomes your rule” could not be truer. Assignment of a special sales account to the boss’s new son-in-law to bolster his sales will become the “rule” when a poorly performing employee who happens to be disabled makes the same request.

You can bet I’m watching these cases closely. The irony here is that with this line of cases, the older and feebler I become, the better chance I have of a reasonable accommodation from the NBA. Someone taller than I am to lend assistance or a 50-point spot seems reasonable. See you at the All-Star Game.