Ninth Circuit Holds Amazon Need Not Adjust Performance Standards As Accommodation For Customer Service Employee with Health Problems

By Loyd Willaford and Mathias Deeg

In Kelley v. Amazon.com, Inc., the U.S. Court of Appeals for the Ninth Circuit held that a disabled Amazon.com customer service associate could not bring a failure-to-accommodate claim because she could not perform the essential functions of her job even with reasonable accommodations

Jodie M. Kelley, a customer service associate for Amazon.com, Inc. subsidiary AMZN WACS since 2006, was terminated in 2011 for work deficiencies. Kelley’s performance rating (an objective score based on customer surveys) began to decrease in 2010, and after failing consecutive performance improvement plans she was terminated. Kelley suffered from endometriosis and migraine headaches for which she had intermittently took medical leave, and following her termination she sued Amazon for failure-to-accommodate in violation of the Americans with Disabilities Act and the Washington Law Against Discrimination.

Kelley argued that Amazon failed to accommodate her disability by not adjusting its performance expectations of her to accommodate for her limitations.

Amazon argued that it had no duty to accommodate Kelley’s disability for two reasons. First, Amazon claims that because Kelley never notified the company of a connection between her disability and her diminishing work performance, Amazon’s obligation to reasonably accommodate was never triggered. Second, Amazon argued that the performance rating used to gauge employee effectiveness was an objective measurement of an essential function of the customer service associate position, and Kelley’s inability to perform based on objective measurements disqualified her from the job.

The court agreed with Amazon and found that it had no duty to reasonably accommodate Kelley’s disability. Even assuming Kelley provided Amazon with notice of her disability and its connection to her work, the court held that Kelley’s inability to perform essential functions of her job prevented her from being qualified, eliminating any obligation of accommodation by Amazon. Kelley was unable to show any accommodations that would improve her ability to meet objective standards of performance used to measure customer service, so she was not a “qualified” individual necessitating reasonable accommodation by her employer.

“‘A job function may be considered essential … [if] the reason the position exists is to perform that function.’ That customer service is the reason for the existence of the [customer service associate] position is obvious. And the [performance rating] is simply an objective measure that Amazon used to evaluate whether [customer service associates] were providing adequate customer service.”

This case is an example of how some courts are hostile toward disability accommodation claims. Despite what appears to favorable language about employer’s duty to accommodate disabilities and a requirement that employers engage in an “interactive process,” to discuss accommodations, courts are reluctant to second-guess employers decisions.

The case illustrates three practical considerations in making successful disability accommodation claims. First, the employee should put the employer on clear notice of the disability. Second, she should be explicit about how the disability impacts the performance of her job duties. Finally, the employee should show how the requested accommodation will help her meet essential functions of the position. Contrary to what most laypersons believe, employers do not have to change performance standards for essential functions of the position simply because an employee has disability. Rather, employers must make reasonable accommodations to help the disabled employee meet the standards.

In this case, it appears that the employee requested relief from being disciplined for customer complaints simply because she was disabled. The employee did not clearly show how the disability led to the customer complaints, and she did not show how the accommodation would reduce the complaints in the future. Had the employee submitted evidence of how her requested transfer or leave of absence would have helped reduce customer complaints in the future, she might have had a viable claim.

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