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Home Depot Pays a Disabled Ex-Worker (New York Times)

By Paul Vitello | October 25, 2005

Originally published: 10/2005

In a settlement that could have wide implications within a small but growing community of severely disabled workers, Home Depot Inc. has agreed to pay $75,000 to a mentally disabled former employee whose supervisor fired her without first consulting the employee's job coach.

Home Depot also agreed to maintain closer contact in the future with disabled workers' job coaches, in a consent decree signed earlier this month with the Equal Opportunity Employment Commission.

The commission had accused the retail giant in a federal lawsuit of violating the Americans With Disabilities Act of 1990 by failing to notify the woman's coach of disciplinary problems. It said that measure should have been taken under the "reasonable accommodations" provision of the law.

"This decree is significant because it sends a message to those who employ the disabled that mental disabilities have to be accommodated just as well as physical disabilities," said Sunu Chandy, the commission lawyer who handled the case for the New York district office.

She said the decree was among the first in the nation to address the rights of workers with job coaches. "If a disabled person has trouble understanding something, the job schedule, for instance, that difficulty is part of their disability and must be accommodated," she said.

Job coaches are not a new phenomenon, but they are increasingly employed by nonprofit agencies seeking to help disabled people, especially those with mental retardation or severe physical disability, find jobs outside the cloistered world of sheltered workshops.

The coach's services as a trainer and monitor of the disabled employee are paid for by the agency, usually with public dollars, and not by the worker's employer.

About 120,000 people nationwide have such job coaches. Some coaches work side by side with the assisted worker. Some just help to train the person, then visit once or twice a week, as did the coach who helped the plaintiff in this case, Carolyn Pisani, now 30, when she got her job as a sales associate at the Home Depot store in South Setauket, on Long Island, in 1999.

Ms. Pisani, who graduated from high school despite an I.Q. said in court records to be 60, was fired after being accused of missing two scheduled days of work.

Though she did not deny missing the two days, both Ms. Pisani and her father, Joseph Pisani, said in depositions that a person claiming to be a Home Depot supervisor called the evenings before both days, saying she would not be needed the next day.

The Pisanis did not question the caller. Like many large retailers, Home Depot frequently adjusts workers' schedules on short notice. Home Depot said no authorized person made those calls, and people familiar with the case say they may have been pranks.

When Ms. Pisani arrived for her next scheduled workday, she was met by a supervisor, who demanded that she sign a number of bad-performance reports for unexcused absences and then fired her. She had worked at Home Depot for four months.

Ms. Pisani's job coach, who was employed through a State Education Department program known as Vocational and Educational Services for Individuals with Disabilities, was only informed after the fact, even though the coach had helped train Ms. Pisani and was making weekly visits to see that she was meeting all her supervisors' expectations.

"She was devastated," said Susan Slavin, a private lawyer from Long Island who represented Ms. Pisani until the commission took over the case in 2003. "This job meant a great deal to her."

Ms. Pisani lived at home, as she still does, but the job meant she earned enough for her own car payments and spending money. "She had pride in her work," Ms. Slavin said. "You don't know what this means to a person like her."

In a statement, a Home Depot spokesman said, "The Home Depot denies that it engaged in any form of workplace discrimination, but entered into the settlement with the E.E.O.C. in order to avoid costly and protracted litigation."

In the past, those who help place mentally disabled people in jobs sought opportunities mainly in sheltered workshops, where all the workers are disabled.

But, reflecting a general trend in the accommodation of people with physical and mental limitations, "there has been a complete switch in favor of more integration during the last 5 to 10 years," said Dr. Rebecca Cort, deputy commissioner of the New York State Education Department.

Last year alone, her department placed 13,000 disabled workers in jobs in which a coach was involved to a greater or lesser degree, she said. She said she did not have figures on the total number of such accommodations in the state.

"It is increasingly the strategy of choice," said William E. Kiernan, director of the Institute for Community Inclusion at the University of Massachusetts in Boston, a nonprofit agency advocating for the disabled.

How employers of the disabled would react to the Home Depot consent decree was the source of some concern among advocates, Mr. Kiernan said, adding, "Some employers will undoubtedly say, 'Oh my God, I have to have control over the firing process,' but in general the advantages for them outweigh any disadvantages."

Besides being paid with public dollars, a job coach usually trains and acts as a second-tier supervisor for the developmentally disabled employee, who can turn out to be more reliable and less likely to leave for another job than the average worker, especially in low-paying jobs, Mr. Kiernan said.

In Ms. Pisani's case, a coach helped her learn her job as a sales associate in the electrical department, helping familiarize her with five contiguous aisles of merchandise that included electrical tools, conduits, phone and TV accessories, wall lights and light bulbs. "She had good job performance reports all along, until the very end," Ms. Slavin said.

Under the federal disabilities act, employers cannot deny any disabled person a job that he or she is able to perform with a "reasonable accommodation" on the employer's part, according to Bob Silverstein, director of the Center for the Study and Advancement of Disability Policy and one of the act's authors as the former staff director of the Senate subcommittee on disability policy.

"This decree is important because the unemployment rate among disabled people is very great, and this will ensure that more will keep the jobs they get," he said. After being fired, Ms. Pisani found several other jobs in which she was accommodated with a job coach, her former lawyer said. She has since married, and lives in Suffolk County with her husband, her parents and her 2-year-old child.

(c) New York Times