EEOC v. Kohl’s – How Employees Should Not Act During the Interactive Process

Pamela Manning was working at a sales associate for Kohl’s Department Stores, Inc. in January 2010 at which time Kohl’s underwent a nationwide restructuring that resulted in her schedule changing from predicable shifts to unpredictable shifts, such as “swing shifts” where she would close the store one night and then open the store the following morning. The change in her work hours aggravated Ms. Manning’s type I diabetes and, as a result, she went to her immediate supervisor and expressed concerns about how the unpredictable schedule was endangering her health. Ms. Manning was instructed to obtain a doctor’s note supporting her request for an accommodation.

Ms. Manning’s physician wrote a note requesting that she be allowed to work “a predictable day shift (9a–5p or 10a–6p)” in order to reduce the stress caused by working unpredictable shifts which was having a negative impact on Ms. Manning’s glucose levels. The store manager received Ms. Manning’s doctor’s note and contacted Kohl’s Human Resources Department for guidance on how to proceed. Subsequently, a meeting was scheduled between Ms. Manning and the store manager. According to Ms. Manning’s testimony, during the meeting she requested “a steady schedule, [but] not specifically 9:00 to 5:00.” The store manager responded that she had spoke with “higher-ups” at Kohl’s and they were unable to offer her a steady nine to five schedule. What followed was an example of what not to do when an employee is requesting a reasonable accommodation in accordance with the Americans with Disabilities Act (“ADA”).

The ADA requires employers to attempt to work with disabled employees in order to provide reasonable accommodations for the employee’s disability whenever possible. It, however, does not require the employer to provide any specific accommodations, nor does it require an employer to provide the exact accommodation requested by the employee or her physician.

When Ms. Manning heard Kohl’s store manager state that the “higher-ups” were unable to offer her a steady nine to five schedule, she became upset, stated she had no choice but to quit, put her keys on the table, and left the office, slamming the door behind her. The store manager followed Ms. Manning to the break room and asked her to reconsider the resignation and asked her what she could do to help. Ms. Manning responded: “Well, you just told me Corporate wouldn’t do anything for me.” She then cleaned out her locked and left the building.

A few days later, Ms. Manning filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (“EEOC”). About a week later, the Kohl’s store manager contacted Ms. Manning and once again asked her to reconsider her resignation. Ms. Manning asked the store manager about her schedule and was told she (Ms. Manning) would have to contact Kohl’s corporate office about any accommodations. That was the last contact between Ms. Manning and Kohl’s.

Both the United States District Court and the United States Court of Appeals for the First Circuit ruled in favor of Kohl’s with respect to Ms. Manning’s claims that Kohl’s failed to properly engage in the interactive process and constructively discharged her employment. On the interactive process claim, the court focused on Ms. Manning’s actions. “[W]hen an employer initiates an interactive dialogue in good faith with an employee for the purpose of discussing potential reasonable accommodations for the employee’s disability, the employee must engage in a good-faith effort to work out potential solutions with the employer prior to seeking judicial redress.” Although there were multiple examples where Ms. Manning’s actions could be deemed not to have been in “good-faith,” the court focused specifically on her failure to follow-up with Kohl’s corporate office following the store manager’s invitation to do so in order to discuss potential accommodations that Kohl’s might have been able to provide.

On the constructive discharge claim, the court utilized a “reasonable person” test and concluded that “a reasonable person in [Ms.] Manning’s position would not have concluded that departing from her job was her only available choice.” The court also noted that “[Ms.] Manning not only jumped to a conclusion prematurely, but she also actively disregarded two opportunities to resolve her issues.” These actions, actions that from the court’s perspective demonstrated a failure to act in good faith with respect to the interactive process, ultimately doomed Ms. Manning’s case.

This case is an excellent example of a situation I often encounter, whether it is in the context of reasonable accommodations under the ADA or requests for Family and Medical Leave Act leave. Although employers often act improperly in these situations, employees are also required to meet certain standards when it comes to communicating and cooperating with their employers. Employees who find themselves in such a situation need to make every possible effort to work with, and not against, their employer. If they do and the problem still exists, a lawyer will be in a better position to assist them. If they do not, they could face the same fate as Ms. Manning.