Stupid Shoes, Cigarettes, and the ADA

Factual Questions
1

I’m not sure quite how to ask this question, so please bear with me.

As I understand it, the Americans with Disabilities Act is supposed to, among other things, protect people from employment discrimination. I received some HR training when I was in management for a retail store, and we were taught that if someone could do the majority of the job functions with “reasonable accomodations,” then we should/could not hold their disability against them in a hiring decision. (Please let me know if my understanding of this is flawed.) We had several paraplegic workers and all was well.

But does the ADA apply if a person cannot physically perform all the functions of the job because of something that’s entirely their fault? And I don’t mean someone who has become disabled because of an accident that’s technically their fault. I mean someone who can’t do the job because she habitually wears inappropriate footwear and smokes like a chimney.

Here’s the hypothetical situation. A woman, lets call her Mary, is a sales person at a large furniture store. She has to walk around the store to help customers, and also to perform tasks like bringing paperwork to the back office and straightening up. She regularly complains about her feet and legs hurting and sometimes asks others to do some of her tasks because she’s “too tired” to walk to the back of the store.

She wears ill-fitting shoes in styles that provide little or no support. For example, she might wear high-heeled shoes with just a strap across the toes, and since the shoes are too narrow for her feet, her foot doesn’t even go fully under the strap, requiring her to shuffle instead of walk normally. She frequently gets blisters, and then wears the exact same shoes the next day. (She does have multiple pairs of shoes.)

Mary also steps out for a cigarette every hour or so. She smokes more when she’s not at work. There are other workers who also take frequent smoke breaks, but have the stamina needed to do the job.

We can reasonably assume that a lot of Mary’s “tiredness” and reluctance to walk is a result of her wearing uncomfortable shoes. It’s also quite likely that her smoking contributes to her fatigue.

Assume for the sake of this example that the management of the furniture store have never said anything about her footwear, and also have never objected to her smoke breaks.

Also assume that if a person with a disability that meant that they had to limit their walking were to apply, that there is no reason why the company couldn’t make “reasonable accomodations” to hire that person. For example, a guy on crutches could easily do the job if some arrangement were made so that he didn’t have to run his own paperwork all over the store. (Perhaps the guy on crutches could take on more of the phone work or something to compensate.)

So, here are some questions for starters:

  1. Can the management legally say anything to her about her shoes?

  2. Can the management say anything to her about the smoking? (I suppose they could limit everybody’s smoke breaks, but say they don’t really mind letting people have the smoke breaks, as long as the work gets done.)

  3. Can they fire her for being physically unable to do the job? Can she claim any protection from the ADA?

Thanks for putting up with this long OP. Hopefully you can see what I’m getting at.

2

I’m going to feel silly if I missed it in there somewhere, but is Mary disabled in someway? If she’s not, then I don’t think the ADA would have anything to do with it, it would be the DWD you’d have to worry about, but that’s a separate issue. As for the shoes, you could probably tell her that she has to wear more appropriate shoes for the job. Depending on the work setting, this could involve asking her directly (at the place wear I work, if someone comes to work wearing the wrong shoes we tell them, ie "You’re in the deli department, you can’t wear open toe shoes, you might drop a knife or boiling water, or you’re stocking the store and walking in wet areas, you need to wear something with a rubber sole), or you could just issue a company wide policy that all employees must wear enclosed, flat shoes… I don’t think I’d worry about the smoking yet, you should probably deal with one issue at a time, and if you only limit it to her she COULD raise a stink about it (but you have to ask yourself if she’s the type of person who WILL do that). As for the third question, I’d still want to know what the disability is that makes you worried about the ADA. Yeah, if she’s got knee/hip problems you might be outta luck on this one but if she has mental problems and you get rid of her for the reasons stated (after a series of written and signed warnings explaining what the problem is, what is to be done to fix it and what the reprecussions will be if it’s not fixed) you’ll probably be in the clear.

3

Someone who has a hard time walking because they wear stupid shoes would not be protected under the ADA. That’s not a disability or a chronic condition, it’s just stupid behaviour.

I’m not sure about chronic shortness-of-breath due to tobacco addiction.

It doesn’t matter in your hypothetical, though, because the person isn’t able to perform the job, and there’s no reasonable accomodation that would allow them to.

Short, simple answer: Yes, they can fire her, (after giving her the opportunity to shape up, natch.) No, she’s not protected.

Smoke breaks? You have scheduled breaks. You don’t “have” to take a break on the hour. That’s not working. Don’t do it, or work somewhere else. There’s no requirement to accomodate the habit.

If running the paperwork is considered an essential part of the job, getting someone else to do it isn’t a “reasonable accommodation.”

4

hey, Green Bean, can you let us know how this hypothetical sitch turns out?

thanks.

5

The Americans with Disabilities Act protects only a person who “has a physical or mental impairment that substantially limits one or more major life activities,” or has a record of or is regarded as having such an impairment. According to the Department of Justice:

[quote]
Q. Who is protected from employment discrimination?

A. Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. An individual is considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.

The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.

I am not a disability lawyer, so I don’t really know the details, but if she just has difficulty walking because of stupid shoes, then she is not covered by the ADA. If she has a medical condition that limits her ability to walk, which she aggravates by wearing stupid shoes, that is a closer question.

In any event, an employer should have the ability to prescribe reasonable, non-discriminatory attire and grooming standards, particularly if there is a health and safety reason to do so. However, if an employee has a disability, then the employer must make reasonabe accomodations to that employee’s needs (though I can’t think of a disability that would require the wearing of stupid shoes).

As to her smoking, an employer can set a general break policy or prohibit smoking on the job. I recall that there were some recent news stories about employers who wanted to prohibit off-the-job smoking, but I don’t know what the result was. I don’t know what would be the consequences of an employer’s addressing the smoking of one individual and not other employees, but I would recommend getting qualified legal advice from your jurisdiction before proceeding.

6

I have an orthopedic condition, that among other things, makes staying on my feet difficult, even in the best of shoes. However, I have problems regardless of what shoes I’m wearing. If this woman’s knee/hip/whatever problems are only there because of her shoes, then yes, she can be told to wear different ones, and that’s that. Lots of places have uniform requirements.

The ADA is very broadly written, but she’d have to have more going on than bad shoes to qualify.