Employer has a Duty to Accommodate an Employee with an Obvious Disability Even Where the Employee Does not Expressly Ask for Such Accommodation

Under the American Disabilities Act (ADA), it is a violation of an employee’s federally protected rights for an employer not to make reasonable accommodations for known physical or mental limitations of an employee, or job applicant, who is otherwise a qualified individual. 29 C.F.R. § 1630.9(a). The ADA requires that an employer engage in an interactive process with an employee to determine the extent of a reasonable accommodation that will permit an employee to perform the essential functions of a job. The United States Court of Appeals for the Second Circuit recently ruled in Brady v. Wal-Mart Stores, Inc. that an employer’s duty to make a reasonable accommodation is triggered when it knows or has reason to know that an employee suffers from a disability, and not just when an employee provides notice of a disability or requests an accommodation. The Second Circuit covers New York, Vermont and Connecticut.


Brady involved a young man with cerebral palsy, who was hired to work in a Wal-Mart store’s pharmaceutical department in Centereach, New York. The pharmaceutical department supervisor, noting Brady suffered from some type of disability, transferred him from his position to a less desirable one after only three days. Brady viewed the transfer as a demotion and resigned. Thereafter, he commenced an action for disability discrimination against Wal-Mart under the ADA and the New York State Human Rights Law. A jury returned a verdict for Brady on several of his claims, including a claim for failure to accommodate. Wal-Mart appealed, arguing that the District Court erred in denying summary judgment in its favor on the failure to accommodate claim because Brady never believed he needed a special accommodation and, thus, never requested one.
In reaching its decision, the Second Circuit noted the general rule that “it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” However, this is not necessary where the disability is obvious or known. The court went on to support this assertion by showing that this view was consistent with the statutory and regulatory language, which does not call for accommodations only when requested but when disabilities are known.
This decision highlights the need to protect the class of disabled employees that do not perceive themselves as disabled but are obviously so to their employers. An employer cannot turn a blind eye to an obviously disabled employee, who despite not having requested an accommodation, is in need of one.
Jessica Nelson, a summer associate, assisted in the preparation of this blog.