Can the ADA Pave His Way to the NBA

Alan Rupe (/authors/421-alan-rupe/articles)

July 22, 2009
Almost everyone who ever attended University of Kansas is a Jayhawk basketball fan.
Especially me. And I can play the gameI know I can. I daydream about dashing down the
court, receiving the long pass and making the shot that wins the Final Four. Then Im 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 meIll be making huge
dollars in the NBA.
Heres the reality: Im 59 years old. Im 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, theres 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 thats 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
Tobins inability to manage his workload, and over the years, Tobin routinely fell short of
annual quotas for new policy sales. In short, he couldnt sell.
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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 Libertys assignment to him of the highly
valued mass marketing account.
The very generous and indulgent jury (these are the appeals courts words) awarded
Tobin more than $1.3 million. The appeals court upheld all but $90,000 of the award and
ruled that Tobins 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. Ill 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 Chicagos 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.
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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
jurys 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
opportunitylets accommodate with guaranteed results.
Heres a review of the ADAs 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.
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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 bosss 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 Im 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.
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