LEGAL
Today, there is an ever increasing amount of public awareness of mental and intellectual impairments and their accompanying effects on the everyday lives of those afflicted with them. The impact of such increased awareness is rarely limited to everyday social interactions; rather, this sort of shift in public perception invariably affects the law in some way or another.
And changes in the law affect the way that individuals and organizations conduct themselves, at least with respect to those impacted by those legal changes. A court ruling from earlier this year is an example of how the law has evolved because of the aforementioned shift in public awareness of mental and intellectual impairments.
The ruling, Glaser v. Gap, Inc., was the result of Gap's motion for summary judgment; the case was initiated in September of 2011 as a claim of employment discrimination (and related claims) under the Americans with Disabilities Act (ADA). In its motion, Gap claimed that Glaser's purported disability is not recognized under the ADA, that it further had no knowledge of this disability even if it were recognized, and that the reason for Glaser's discharge was not discriminatory based on his disability.
The suit was brought by William Glaser against clothing retailer Gap, for whom Glaser had worked as a merchandise handler at a distribution center for over seven years. Glaser is autistic, but it wasn't diagnosed until after the lawsuit commenced. However, Glaser was still aware of the disabilities that he suffered because of his autism, such as his impaired "intellectual abilities" (the 2011 complaint states that Glaser's "verbal function falls within the fourth grade range while his math ability ... [falls] within the first grade range"). Glaser also lacks the ability to tell time, and "has limited cognitive abilities that may lead to misunderstandings and inappropriate responses in conversing with other people."
Gap, however, was aware of his impairments when they hired Glaser in 2002, a position that the New York State Office of Vocational and Educational Services for Individuals with Disabilities assisted him in securing. This agency attempted to provide Glaser with an "on-site job coach" to assist him in performing his job. This was rejected by Gap, which had its own trainers and supervisors.
The Gap human resources department apparently was well aware of Glaser's disability, as were his supervisors and trainers, and provided appropriate accommodation. This accommodation changed when Milinda Mejorado became Glaser's supervisor in late 2008 or early 2009. According to court documents, Mejorado was less than understanding of Glaser's disability, and, per Glaser, Mejorado "'became quite uncomfortable about the situation' and thereafter would avoid him." She further repeatedly conducted "coaching" sessions with him because she found his job performance to be substandard.
The antagonism apparently came to a head in November 2009, when Glaser approached Mejorado and requested a new "fish knife," a plastic device shaped like a fish that is used to cut tape and open boxes. According to Glaser, after Mejorado handed him the fish knife, he put the device in his back pocket.
Glaser then asked to speak with Mejorado, indicating that he wished to apologize about an incident that occurred a few days earlier, at this point, according to Glaser, "Mejorado began yelling at him."
According to the court opinion, Glaser became agitated, and Glaser was "waving his hands and continually moving into the cubicle." A coworker who was present "perceived that Glaser was doing so to prevent Mejorado and her from leaving the cubicle." Glaser immediately left the area when informed that Mejorado and that coworker needed to attend a meeting.
Later accounts of this exchange by Mejorado and a Gap HR representative (recounted after litigation) placed the knife in Glaser's hand during the exchange. The court seemingly concluded that, since there were no records made at the time that made any mention of the knife in Glaser's hand, it was added in retroactively in contemplation of litigation.
Glaser was fired the next day, with Gap citing violations of its "Zero Means Zero" and "Workplace Violence" policies. "Zero Means Zero" means Gap has "zero tolerance for discrimination or harassment." Gap provided no analysis of how Glaser violated these policies, and the court found that Glaser had, in fact, not violated either of them.
The court denied Gap's motion on all counts, finding that Glaser's impairment fell within the ambit of the ADA's definition of "disability," and that Gap was well aware of this disability – regardless of the fact that they were unaware that Glaser had autism specifically. Finally, as mentioned in the preceding paragraph, the court found that Glaser had not violated those policies cited by Gap as grounds for his termination. Finally, Gap must bear the burden of showing that the adverse employment action suffered by an employee because of a disability was due to "a legitimate, non-discriminatory reason," and the court found that Gap was unable to meet this burden.
After this ruling, Gap will most likely seek to settle the suit, but the implications of the ruling go beyond one employment discrimination case.
Employers across the country should take note of the broad protections for disabled individuals provided by the ADA (thanks in large part to the 2008 amendments to the act), and approach any potential disciplinary action against such employees with extra care, since the underlying behavior that led to the disciplinary action may likely be the result of a mental impairment.
Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.
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