Under the Americans with Disabilities Act, applicants or employees with disabling conditions generally must request an accommodation before an employer’s obligations are triggered.  A recent Second Circuit Court of Appeals decision reminds employers that they may have to accommodate employees who do not request assistance where the disability and the need for accommodation are obvious.

In Brady v. Wal-Mart Stores, Inc., the plaintiff applied for and began work as a pharmacy assistant.  Wal-Mart was aware that he had moderately severe cerebral palsy.  From the outset of his employment, the lead pharmacist was unhappy with his work, especially the speed with which he moved.  The plaintiff was soon thereafter transferred to a job retrieving shopping carts and quit.  After he sued under the ADA and state law discrimination statutes, a jury awarded him $7.5 million in damages (the trial court reduced this amount somewhat).

On appeal, Wal-Mart contended that it had no obligation to provide accommodations to assist the plaintiff with the speed of his work, because he never requested such assistance.  The Second Circuit rejected this argument, affirming the jury’s conclusions.  When an employee has an obvious disability and is having difficulty performing the essential functions of the job, the employer cannot hide behind the fact that he never specifically requests an accommodation.  In these circumstances, the employer has an affirmative obligation to begin the accommodation process, even if the employee does not consider himself to be disabled.

In this case, Wal-Mart never began the interactive accommodation process intended to see if the pharmacist’s concerns over rate of work could be addressed short of transferring the plaintiff to another job.  The employer’s failure to take these steps doomed its defense to the disability discrimination claims.