know best—may apply to any given situation and thus fail to
train their managers accordingly, O’Brien continues. Businesses “should carefully analyze and, with the help of legal
counsel as needed, identify all potential legal risks in a termination before pulling the trigger.”
Failure to Accommodate
Debra worked as one of two hairdressers at
a nursing home. On Mondays and Tuesdays,
she pushed residents in wheelchairs from their
rooms to the nursing home’s beauty shop to
do their hair and then wheeled them back
afterward. On other workdays, Debra mainly did the hair of
residents who didn’t require wheelchair assistance.
After undergoing surgery, Debra returned to work with a
permanent pushing restriction of 50 pounds. Her doctor said
pushing wheelchair-bound residents could cause additional
physical damage that would likely require her to have another
Debra suggested that others push the wheelchairs for her
on Mondays and Tuesdays. However, the nursing home’s
administrator rejected the idea and refused to restructure
Debra’s duties because the pushing restriction was
Debra quit and sued under the ADA. Until Deb-
ra’s position was filled, the remaining hairdresser
received assistance from other staff in wheeling
residents to and from the beauty parlor, with-
out any “undue hardship” to the facility or its
Although a lower court initially dismissed
the case on the grounds that pushing wheel-
chairs was an “essential function” of the
position, an appellate court disagreed and
sent the case back for jury trial.
Moral of the story: Maria
Greco Danaher, a shareholder
with the law firm Ogletree
Deakins in Pittsburgh, offers
three lessons: “First, just
because a restriction is per-
manent doesn’t excuse an
employer from attempt-
ing to accommodate it.
Second, if you’re
going to say that a sug-
tion is impossible—in
this case, having oth-
ers assist in the wheel-
chair pushing—don’t use
that very accommodation
when the employee leaves the
And, most importantly, at least consider
restructuring the job when reviewing reasonable accommodation choices. Don’t simply assume an accommodation can’t
or shouldn’t be made.”
Turning a Blind Eye to Bullying
For many years, a company conducted annual
training on its anti-harassment policy. How-
ever, neither company policy nor the training
included bullying, based on reasoning that
“generic” abuse is not a legal issue since it’s
not based on race, sex or other legally protected classes.
The organization’s leaders came to regret this omission
after an employee filed a lawsuit alleging abuse and harassment by his manager. They learned the hard way that defending a claim by arguing that a manager is an “equal opportunity offender” is an uphill battle.
“When judges and juries feel an employer tolerated or
allowed an abusive work environment to exist, they’ll often
strain to find a legal hook to hold the employer accountable,” says attorney Mary Wright of Wright & Supple LLP
in Albany, Calif. “And given the plethora of legally protected
classes and activities under state and federal law, it’s often not
hard to find a hook.”
Moral of the story: Offer anti-bullying training. When
Wright counsels employers, she reminds them of four important reasons to do so:
• In some states, such as California, anti-bullying training is
required by law.
• Bullying can be the basis for an employee’s lawsuit for
other claims, such as intentional or negligent infliction of
• Bullying is on the rise.
• Workplace bullying is likely to contribute to subsequent
medical disorders and even “secondhand abuse,” in which
those who have been bullied go on to bully others.
Sometimes HR professionals assume managers with common
sense won’t make these mistakes. But unfortunately, as the
French philosopher Voltaire said, “Common sense is not so
common.” Moreover, employment laws aren’t always so logical themselves.
So don’t let managers navigate these tricky legal waters on
their own. Train them, encourage them to come to you with
questions and problems, and turn to employment attorneys if
you get stuck.
That’s how HR can accomplish its goal of getting the right
employees in the right positions doing the
right things—without ever having to visit
the inside of a courtroom.
Jathan Janove, J.D., is principal of Janove
Organization Solutions in Portland, Ore. He
is the author of Hard-Won Wisdom: True
Stories from the Management Trenches