Disabled-employee approach requires good-faith effort

Disability

A bartender sued her employer for disability discrimination and the hotel won. Here's the case details. 

The plaintiff was a part-time night bartender in the lobby bar of the Hotel LaConcha in San Juan, Puerto Rico, which is owned and operated by International Hospitality. 

Ten months after her hiring, the bartender developed a medical condition that precluded her from working nights. The hotel sought to accommodate her circumstance, but no openings existed for daytime bartenders. She was offered a wait job at the hotel restaurant serving breakfast and lunch. She accepted the new position but over time earned less money and so asked to be reassigned to a daytime lobby bartender position. She thereafter observed that other workers had been recruited and hired for that bartending job despite her requesting it. Believing she should have been offered the position, she sued the hotel claiming disability discrimination. 

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Accessibility

The law does not favor the plaintiff. An employer’s duty to a qualified person with a disability is satisfied by assignment to an alternate, vacant position. The duty to identify openings arises when the employee requests reassignment and ends after the employer either reassigns the employee, or determines that no positions are available or will become available in the fairly immediate future. The employer is not required to offer the employee a job that becomes available well after the employer learned of the employee’s disability.

In her complaint, the plaintiff does not identify when the daytime lobby bartending vacancies she sought became available. As noted by the court, the positions may have become open long after plaintiff accepted the restaurant server assignment. 

The court also commented that an employer has no duty to remove another employee to create a vacancy for a worker with a disability. 

In the bar

Based on these rules, plaintiff failed to prove that the hotel discriminated against her based on her disability. Case dismissed.

Lesson for hotels: When faced with an employee with a disability, an employer must make a good-faith effort to accommodate him or her. Once having done so, the employer’s legal duty is satisfied. No further attempts to match an employee with a desired job are required.

Karen Morris is a lawyer, municipal judge and Distinguished Professor at Monroe Community College in Rochester, N.Y., where she teaches hospitality law. Contact her at [email protected].

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