Why it matters

An employer violated the Americans with Disabilities Act (ADA) for terminating a diabetic employee who drank orange juice at the cash register during hypoglycemic episodes, the U.S. Court of Appeals for the Sixth Circuit has affirmed. A diabetic, Linda Atkins requested to keep a bottle of orange juice at her register to avoid the risk of seizing or passing out during a hypoglycemic episode, but her manager refused, citing Dollar General policy that prohibited food and drink at the registers. On two occasions, she took a bottle of OJ from a store cooler, drank it and paid for the juice, telling her manager what she did. When the regional manager later conducted an audit of the store, Atkins was fired for violating the “grazing policy,” which forbids employees from consuming merchandise in the store prior to paying for it. A jury awarded her more than $600,000 in her ADA suit, and the employer appealed. But the federal appellate panel rejected Dollar General’s argument that Atkins could have treated her hypoglycemia in other ways, noting that after the company denied the plaintiff’s request, it failed to engage in the interactive accommodation process to find a solution that worked for both parties.

Detailed discussion

Linda Atkins began working at Dollar General as a sales associate in August 2009. She received annual raises and was promoted to lead sales associate in March 2012. The position required her to handle the cash register in the store. When Atkins experienced hypoglycemic episodes at work due to her diabetes, she would excuse herself to the break room, where she kept orange juice in a cooler.

However, her promotion meant she often worked alone and could not leave the floor to go to the break room. Atkins spoke to her store manager about keeping a bottle of orange juice at her register but was told store policy prohibited it. After her promotion, Atkins suffered two hypoglycemic episodes, one in 2011 and another in 2012. Both times she was working alone while at least eight customers were in the store, so she took a bottle of OJ from the store cooler, drank it and paid the $1.69 for each. Both times, she told the store manager what had happened.

In March 2012, the regional loss manager conducted an audit of the store to address employee theft. During an interview, Atkins told them about the orange juice she consumed and paid for. Citing Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it, Atkins was fired at the end of her meeting.

She filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and the agency filed suit in Tennessee federal court. Atkins intervened, and at trial, a jury found in her favor on both the reasonable accommodation and discriminatory discharge claims, awarding $27,565 in back pay and $250,000 in compensatory damages (along with almost $450,000 in attorneys’ fees and expenses).

Dollar General appealed the verdict. The employer argued that the jury erred in finding that it discriminated against the plaintiff by failing to provide her with a reasonable accommodation for her disability. Atkins could have treated her hypoglycemia in ways other than taking a bottle of orange juice, the employer told the court, such as by consuming glucose tablets, honey, candy or peanut butter crackers.

“But these options do not make the jury’s verdict unreasonable,” the Sixth Circuit wrote. “The company’s ‘Personal Appearance’ policy states that employees ‘should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.).’ Just as a jury could find that the company prohibited employees from drinking orange juice at the register, so too could it find that it prohibited them from consuming glucose tablets, cough drops, candy and honey packets at the register.”

Atkins asked for an exception to the policy “and got nowhere,” the court added.

Further, Dollar General had a duty to explore the nature of Atkins’ limitations, if and how those limitations affected her work, and what types of accommodations could be made, the court said. “Had Dollar General followed this route, it might well have told Atkins that she could consume glucose pills at the register and perhaps that would have resolved the matter. But that’s not what it did. The store manager categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior. That was Dollar General’s problem, not Atkins’—or at least a reasonable jury could so decide.”

“Ample evidence” supported the jury’s conclusion that Dollar General failed to provide Atkins with reasonable alternatives to keeping orange juice at her register, the panel found.

With regard to the claim of discriminatory discharge, the court explained that whether a policy is neutral on its face doesn’t matter when an employee presents direct evidence of discrimination.

“[A] company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him,” the court wrote. “Imagine a school that lacked an elevator to accommodate a teacher with mobility problems. It could not refuse to assign him to classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would have had a reason to buy the store’s orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution.”

The Sixth Circuit affirmed the jury’s verdict and damages award.

To read the opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC, click here.