A federal court in Nebraska recently ruled in a case about accommodating a wheelchair bound amputee on the job.

Two recent cases involving Walmart and accommodating workers with amputations have made the news recently.

The EEOC sued Walmart for allegedly failing to hire a Texas woman with an amputated hand as a stocker. Here in Nebraska, a federal district court denied summary judgment in a failure to accommodate claim involving an amputee who used a wheelchair and requested not to wear a long butcher coat because it got stuck in his wheelchair.

The Texas and Nebraska cases both turn on arguments about the failure of Walmart to engage in an interactive process to accommodate a disability. The Nebraska case also emphasized that this interactive process need not be formal which is a point I have made before.

The longer I practice workers’ compensation and employment law, the more I despise bureaucracy. Reading “The Utopia of Rules” by David Graeber in 2015 crystallized my thinking on the topic. In early 2017, I wrote a post about just cutting management out of the accommodation process altogether if possible. I wrote that such conduct would be protected as a protected concerted activity under the National Labor Relations Act. (NLRA)

Well, thanks to Neil Gorsuch’s 5-4 majority opinion in Epic Systems, helping to accommodate the disability of a coworker may not be a protected activity under the NLRA. For now at least, federal courts don’t require that employees have to exhaust administrative remedies within what amounts to a private administrative state in order to accommodate a disability. Courts seem to give more legal power to an individual alleging individualized discrimination rather than employees acting collectively about the terms and conditions of their employment.

In short, employees have some real legal rights on the job so long as they acting as individuals within the frame of anti-discrimination laws. In order to act collectively employees either need to engage in direct action like strikes — which is a whole other topic —  or in the political arena.