Whopper of a Tale: Burger King Employee Denied Accommodation
Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.
All of Burger King’s managers rotate among three distinct work shifts. The employee requested a fixed work schedule and to be moved to a Burger King location in an area not as prone to crime. Initially BK acquiesced to his request, but it later informed him that he would have to go back to working rotating shifts. The employee resigned and filed suit under the ADA.
In order to make a claim under the ADA, the employee must be qualified to perform the essential functions of the job (with or without reasonable accommodation). So is working a rotating shift an essential function of the job for an assistant manager at Burger King?
In the decision, the First Circuit determined that working a rotating shift is an essential function at Burger King. Burger King established that rotating shifts was necessary for the equal distribution of work among the managerial staff. In other words, accommodating the employee permanently would have had the adverse impact of inconveniencing all other assistant managers who would have to work unattractive shifts in response to the assistant manager’s fixed schedule.
Moreover, the court noted that the job application the assistant manager filled out and signed when he was hired made clear that all managerial employees had to be able to work different shifts in different restaurants. Burger King also pointed to a newspaper advertisement for the job that listed the need to work rotating shifts as a requirement.
Cases like this are a good reminder to employers that engaging in the “interactive process” under the ADA is a fact intensive and challenging endeavor. Employers are well advised to consult with counsel when these types of accommodation situations arise.