Should an employer have provided a disabled employee with a “spitting” accommodation? A jury thought so.


This has been an interesting start to the week at The Employer Handbook, from six-year-olds slinging racial epithets to expectorating employees.

But I’m here for it. And I’m glad that you are too.

I’ve fielded my share of unusual disability accommodation requests. But allowing an employee with a condition caused by nausea and severe vomiting to spit regularly into a cup at work is a new one for me.

In this Eleventh Circuit decision I read last night, an employee needed that particular spitting accommodation to overcome waves of nausea associated with her pregnancy.

To the employer’s credit, it did allow the employee to spit into a cup when working in an administrative area of the workplace. However, the employer would not permit the woman to use her spit cup on the production floor for cleanliness and sanitization reasons.

The employee told the company she could still work and do her primary job in the administrative area. However, the company did not offer or discuss any accommodations with her.

Instead, it fired her.

So the employee became the plaintiff in a failure to accommodate lawsuit against the employer-defendant. And yada, yada, yada, the jury awarded her nearly $100k!

So, the defendant appealed, citing evidence that it had transferred her into a new position that required time on the production floor as an essential duty (just like her previous position).

The Eleventh Circuit, however, did not fault the jury for reaching a different conclusion. Notably, neither position involved the plaintiff spending much time on the production floor, and, critically, neither job description listed time spent on the production floor as an essential job function.

Job descriptions are hecka-important to determining what is (and is not) an essential function of a job. Although job descriptions are not always the be-all-and-end-all, in this case, testimony indicated that the plaintiff could perform all essential functions in the administrative area through a “buddy system.”

Assuming that spending time on the production floor is a nonessential job function, the law may require the employer to restructure the job to eliminate those marginal functions. Rather than undertake these efforts or engage with the plaintiff in good faith to explore other possible job accommodations, the defendant fired her.

For these reasons, the Eleventh Circuit affirmed the judgment against the defendant on the plaintiff’s failure-to-accommodate claim.

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