HELP - how to tell an employee she physically doesn't fit?!?

Leslie · February 2003

We are opening up "pits" surrounded by table games. The pits are long and narrow (about 10 feet wide) areas where dealers stand and all admin personnel (boss, floor people, clerk) are located. These are all new positions and we are training for some. An employee from another location has put in for the clerk position. The clerk traverses the length of the pit all day long. Problem is she is VERY big around the bottom, and really can't fit in this area where there are so many other people. In some cases she simply wouldn't be able to get by. What do we say?

Golfistherapy · February 2003

If reminding her about the expectation of standing all day doesn't de-rail her, I'd suggest doing nothing. We have numerous employees with that same physical feature you spoke of and you would be surprised how they manage to move, dip, weave, squeeze and just get the job done.

Don D · February 2003

We have numerous employees
>with that same physical feature you spoke of and you would be
>surprised how they manage to move, dip, weave, squeeze and just get
>the job done.

Thanks for that description early on a Friday. I will spend some time with my eyes closed trying to visualize it.

Balloonman · February 2003

For gods sake Don DON'T VISUALIZE that!
DJ The Balloonman

Leslie · February 2003

The manager will not transfer her into his department - which in our hiring system is his right - so when I asked him why, this is what he told me. It's not a matter of if I have to talk to her about why she didn't get the job, it's when. So what do I say to her?

Don D · February 2003

What I would do is go back to the manager/decision maker. Have a frank, documented discussion with him about the ADA and discrimination. Make sure he has an appropriate reason if he intends to reject her candidacy. If he blows that off or doesn't cooperate, when she asks, refer her to him. He should be hit between the eyes with the concept of individual supervisory liability. After the conversation, advise one level up.

SDDCHR · February 2003

Based on what you're telling us, ADA isn't an issue here but discrimination is. Hire for this position based on the best qualified! If she is that person, is there any way that you could widened the tables? Also, Don is right, your manager better have a good reason and can justify it (i.e. a better qualified applicant). You definetly need to advise him of this or he's going to be hit with more between the eyes then liability....how about an expensive law suit!

Don D · February 2003

Extreme Obesity is indeed, or can be, an ADA issue.

Leslie · February 2003

I don't think I've explained correctly. We have transfer request forms. The job was posted with "will train qualified candidate." The employee filled one the transfer request form. On the form the manager has the option to accept or deny, with only a phone number for the denial if the employee wants more info. He came to me to explain his denial.

I work on a reservation - no ADA - but we always try to comply as someday we may have to. But doesn't reasonable accommodation stop when it impedes the rights of others? In this case it would.

It's not discrimination if someone can't fit, is it?

Don D · February 2003

You've opened up a whole new world to me now. Are you saying none of the Federal Labor Laws penetrate the borders of an Indian reservation? I wasn't aware of that; but, if true, seems you would only have to follow Indian law and company policy.

Leslie · February 2003

That's it - We're a sovereign nation. However, we comply with ALL as much as possible. If an employee sues, they must first go through a tribal court. Then onto local courts. And then guess what issues crop up? Those little federal laws.

Funny thing though - I lost in state unemployment court a couple weeks ago because our policy follows the guidelines of FMLA. After 12 weeks, we term. The judge however, felt that because we didn't HAVE to fully comply with FMLS we could have given the employee the extra 4 weeks she needed to return to work. Nevermind inequitable treatment of employees and violation of company policy and procedure.

Anyway, with this issue I think I'm just going to tell the employee we found and applicant with department experience who is willing to train in the new position.

Don D · February 2003

As an aside, this state has become inundated with casinos along the river and coast in the past 8 or so years and now has two huge ones at the Choctaw reservation in Philadelphia, MS. Our regulatory agency, the Gaming Commission, is really, really active and always has about 12 cars parked in their designated front row spaces at the non-Indian casinos. What I read says we're highly controlled and monitored. I've wondered though, what regulates activity at the reservation casinos. I've been to both and they seem as well run if not better run than the state regulated ones. I have also noticed that the Choctaw casinos advertise all their jobs and include eoe in the ad. It never occured to me that the 'Indian Nation' laws didn't necessary have to follow labor laws.

Leslie · February 2003

FMLS should be FMLA as I was meaning to add this and got mixed up in my acronyms. We do strictly follow FLSA, and are required to do so.

Crout · February 2003

This is a great thread. How do you know the large person in question does not fit? Have you taken detailed measurements of the pits and compared them to measurements of her...um....posterior? Or are you just "eyeing her up" as carpenters often say? It seems to me that your company is making some rather profound assumptions about this person's ability to do the job based solely on her dress size.

Leslie · February 2003

Don: We have ADOG (Arizona Dept of Gaming) to watch over us. Plus each tribe is required by our state compact to provide a group of people independent of the casino, hired by the tribal government to oversee their casinos and ensure compliance with the compact - a simple 500 page document (not really but sometimes it seems like it). Our casinos must be built on reservation land, and the state has 16 tribes with at least one casino, some more. We too follow EOE under the guidelines of the Indian Preference Hiring Act of 1934 - It's a part of P&P, as is FLSA. However, when it comes to some of the "newer" laws (FMLA, ADA) we don't have to - but again we want to be a "real business" and we do as much as possible.

Crout: No, we didn't break out the tape measure. I thought that might be a tad crude. Trust me - I've been in the area. It was difficult for me and one other person to move through the area side by side when we were walking past two dealers. We had to pass through one at a time. Now, this is one thread that can just go away, because I don't think there's any help to be had.

HELP - how to tell an employee she physically doesn't fit?!?

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