No, the ADA Does Not Require an Employer to Allow an Employee to Wear Flip Flops to Work

The Americans With Disabilities Act (ADA) allows a person with a disability to request a reasonable accommodation from his/her employer that will allow him/her to perform his/her job. However, the ADA does not require an employer to give an employee the exact accommodation that the employee wants; rather, the ADA requires the employee and employer to work through an interactive process to reach a reasonable accommodation that meets the needs of both parties.

What happens when an employee is unreasonable? An example comes to us from beautiful Sedona, Arizona. (Steely-Judice v. Taylor Fine Art, LLC, No. CV-14-08238-PCT-GMS, D. Ariz. Jan. 09, 2017). Ms. Steely-Judice worked at the Taylor Gallery, an art gallery in Sedona, Arizona, as a sales consultant. Taylor Gallery employs sales consultants throughout the gallery, and expects these employees to have "great attitudes, be good team players, and have the desire to succeed." Taylor Gallery also upholds a professional dress code among its employees, and specifically prohibits its employees from wearing "flip-flop or thong sandals" while working.

Ms. Steel-Judice suffered from back problems due to an injury. She found that changing her shoes throughout the day helped to alleviate her back pain. Steely-Judice switched between two shoes in particular; a pair of orthopedic Dansk clogs and a pair of sandals.

Ms. Steely-Judice lasted all of 4 days at the gallery. On her first day of work, she wore her clogs. On the second day, she started with the clogs and changed into the sandals. The gallery director and Steely-Judice's supervisor, Ms. Krista Drake, informed her that the sandals did not comply with Taylor Gallery's dress code, and that she could not wear them to work. Steely-Judice told Drake that she needed to switch between shoes to manage her pain. Drake told Steely-Judice that she would ask the owner, Michael Taylor, whether she could wear the sandals despite the fact that they violated the dress code. On the third day, Steely-Judice was informed that she could not wear the sandals during her shifts because they did not comply with the dress code. Michael Taylor discharged Steely-Judice on the morning of her fourth day.

Taylor Gallery asserted that it discharged Steely-Judice due to her allegedly combative personality. According to Drake, Steely-Judice was "angry, combative and pushy" during her shifts. Steely-Judice argued that she was discharged due to her disability and her resulting request for an accommodation to wear shoes that did not comply with the dress code.

The District Judge granted summary judgment in the employer's favor, finding that Steely-Judice failed to present significant and substantial evidence to challenge Taylor Gallery's nondiscriminatory rationale for discharging her. Furthermore, the Court found that Steely-Judice's subjective belief that she was doing a good job was insufficient to challenge her employers' rationale for dismissing her.

Practice tip: As the employer did in this case, sometimes it can be better for an employer to "cut its losses" and discharge an employee quickly when she clearly has a problem attitude. There are some people who are going to sue, no matter what happens. In those cases, the employer should carefully document the attitude or performance problems so that it can present actual evidence to support the termination decision when and if the problem employee files a lawsuit.