Labor & Employment Law Daily Walmart didn’t ask disabled worker to clean bathroom for 14 years, but it was still essential function (1)
Monday, June 25, 2018

Walmart didn’t ask disabled worker to clean bathroom for 14 years, but it was still essential function

By Lorene D. Park, J.D.

Affirming summary judgment against a developmentally disabled Walmart employee’s claims under the ADA and Colorado law, the Tenth Circuit in an unpublished opinion rejected her assertion that she was a “maintenance associate” in name only and that cleaning restrooms was not essential to her job because she hadn’t been asked to do so in 14 years. The appeals court explained that employers can require an employee to perform functions that may be done only rarely, that cleaning restrooms was “clearly job-related,” and enforced as to other maintenance associates. When one of them left, the employee was given the task out of business necessity and her refusal meant she could not perform the essential functions of her position with or without accommodation (Mielnicki v. Wal-Mart Stores, Inc., June 20, 2018, Briscoe, M., unpublished).

The employee, who is in her 60’s but has the mental capacity of a 13-year-old, was employed by Walmart for about 14 years. When she accepted the position of maintenance associate she signed a job description indicating she both did and did not “have the ability to perform the essential functions of this position.” Her duties included assisting in various areas by moving items, sweeping and mopping, maintaining the spill stations, and serving on the safety committee. She had an excellent attendance record, and her evaluations were generally positive.

Refused to clean men’s room. The job description stated that cleaning the restrooms was an essential function of the maintenance associate position. For years, the two other maintenance associates did this job, but she didn’t. After one of the other associates left, the employee was asked to clean the men’s restroom, but she refused. She said she was afraid a man would come in and attack her. She later submitted an accommodation questionnaire from her doctor stating she “socially cannot handle certain situations such as being in [the] men’s bathroom” and should not be exposed to certain cleaning products due to eczema. The doctor recommended that she only be tasked with the same duties she had been doing for the past 14 years.

Walmart placed the employee on leave pending a job reassignment if a suitable position opened. She obtained employment elsewhere and Walmart formally terminated her.

Essential job function. The employee filed suit under the ADA and the Colorado Anti-Discrimination Act, alleging disability discrimination. The court granted summary judgment for Walmart, finding that cleaning restrooms was an essential function of being a maintenance associate and that the employee offered “no legal or factual authority for finding that she was in a special position and was merely called a maintenance associate for record-keeping purposes.”

Affirming, the Tenth Circuit held that the employee failed to establish a prima facie case because she could not show that she was qualified, with or without reasonable accommodation, to perform the essential functions of her job. On appeal, she conceded that cleaning restrooms was essential to a maintenance associate but argued she wasn’t in fact a maintenance associate because for years she was assigned various tasks that did not include cleaning the restrooms.

Past experience doesn’t define essential functions. Rejecting her argument, the appeals court explained that it was “reluctant to allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Also, the fact that Walmart didn’t have her clean bathrooms for several years did not mean that wasn’t an essential function of her job. Cleaning restrooms was “clearly job-related, and the evidence shows that it was uniformly enforced with respect to the other maintenance associates. When one of those associates left [the employee] was asked to perform that function out of business necessity.”

The appeals court also pointed out that it had previously held that “an employer may require an employee to be able to perform functions that she might rarely, or even never, need to perform.”

Walmart didn’t create a special position. The employee also argued that Walmart must have intended to hire her for a position that didn’t require the same functions of a maintenance associate because, when hired, she said she did and did not have the ability to perform essential functions of the job. Disagreeing, the court explained that this ambiguity didn’t mean Walmart created a special position for her. Furthermore, the court noted, “An employer that goes beyond what is required under the ADA to permit an employee to perform only some of the essential functions of the position is not then estopped from insisting that the employee perform all of the essential functions of her job.” For all these reasons, summary judgment was affirmed.

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