On September 16, 2016, a Tennessee jury awarded Linda Atkins, a former Dolgencorp LLC (“Dollar General” or the “Company”) Sales Associate, $277,565 in back pay and compensatory damages after being fired for drinking orange juice prior to paying the $1.69 cost to prevent a diabetic episode.
Atkins, an insulin-dependent diabetic, regularly gave herself insulin injections while on break and stored both insulin and orange juice in Dollar General’s employee break room. Because hypoglycemic attacks are by their nature unpredictable and require immediate attention, Atkins requested to keep juice near her register to prevent a diabetic episode when she was working in the store alone. Atkins’ supervisor denied her request although she was aware of Atkin’s diabetes and said that it was against Company policy to keep food or drink near the register.
On two occasions, while working alone in the store, Atkins drank orange juice belonging to Company prior to paying for it because she was having symptoms of a hypoglycemic episode. On both occasions, Atkins paid for the drink after the emergency had passed and shortly thereafter reported the incidents to her supervisor.
During an audit, the Company learned that Atkins had violated the Company’s anti-grazing policy, which prohibits the consumption of merchandise without paying for it first. Atkins was terminated.
After filing a Charge of Discrimination with the EEOC, the EEOC brought suit against the Company alleging that Dollar General violated the ADA both by failing to provide Atkins with a reasonable accommodation and by firing her because of her disability. The jury agreed. During the litigation it was revealed that Atkins’ supervisor and managers were unaware of the Company’s accommodation policy and had received no training in that regard.
Under the ADA, employers must reasonably accommodate an employee’s known disability unless doing so would impose an undue hardship on the employer. Employers must also engage in an interactive process and have a dialogue with the employee to help identify and provide alternative accommodations for the employee’s consideration if an employee’s initial request is denied.
The EEOC has issued helpful guidance in the form of Q&As about diabetes in the workplace. The Q&As suggest the following types of reasonable accommodations:
- a private area to test their blood sugar levels or to administer insulin injections
- a place to rest until their blood sugar levels become normal
- breaks to eat or drink, take medication, or test blood sugar levels
Courts in the Third Circuit have weighed in on the issue. In Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593 (M.D. Pa. 2014), a district court declined to grant summary judgment to an employer on an ADA failure to accommodate claim where the employer denied the employee’s physician-suggested request for regularly scheduled meals each day and access to glucose supplementation tablets. In its decision, the court noted that “to accommodate Plaintiff, Defendant need not polish the silver; rather, providing Plaintiff the brief opportunity to consume something to bring his glucose levels to normal would be sufficient.”
The jury award in Atkins is an expensive lesson for Dollar General and a reminder to employers that effective training of supervisory and managerial employees is critical to help ensure compliance with the ADA and other federal and state anti-discrimination statutes.
ADA disability accommodations are always a hotbed of litigation. Employers confused about whether to grant an employee’s request should seek the advice of experienced employment counsel.