Professor Katherine Macfarlane, Director of the Disability Law and Policy Program, spoke with Law360 for the article “3 Takeaways After ADA Suit Over High Heels Cleared For Trial”.
The case revolves around a disability discrimination lawsuit by a fired cocktail waitress who’d asked to wear comfortable black shoes to work instead of the required high heels.
One takeaway was to keep essential job functions gender-neutral when possible. Macfarlane said it depends on the job, and how the employer defines what it considers an essential function.
“With a cheerleading uniform, you could say that you want to have everyone in the same thing, you want to be able to maximize what is most attractive,” she said, in an example of an all-woman professional cheer squad. “But we’re far afield from that … this is a job where people are supposed to be able to deliver drinks quickly.”
In fact, Macfarlane continued, she might argue that high heels could be a liability in a work environment that depends on speed and carrying heavy trays of food or drink.
The idea that the black high heels are an essential function of the work of cocktail servers at this company “should have been interrogated,” she said.
Another takeaway was that granting an accommodation may be the easiest solution, even as the ADA doesn’t actually require workers to produce a doctor’s note at all — let alone produce a note containing specific prescriptive language for a certain brand of shoes — in order for them to wear what works best for them.
“The interactive process is supposed to be flexible, and a conversation. If you can defer to the employee’s preference, you should,” she said. “There’s something really irrational and punitive about the way this came down, because the easy solution is, ‘Of course, you can wear your Skechers. Thank you for letting me know.’ Move on.”
She said it’s a bad human resources decision that led to lawyers on both sides “because someone wants to wear black Skechers.”