October 10, 2019

Disregarding Disability Costs $5.2 Million

On October 10th, a jury awarded a 16-year (former) employee $5.2 million for the employer’s discrimination and failure to provide accommodation under the Americans with Disabilities Act (ADA).  $5 million of that award was for the employer’s “malice or reckless disregard” of the employee’s rights.  OUCH!  And that was despite the fact that the employer:

  • had policies in place to foster (1) EEO; (2) workplace accommodations for people with disabilities; (3) the prevent of unlawful discrimination, including based on disability; and provide for prompt investigation and documentation of reported
    violations of the policies;
  • trained their employees on the ADA, disability rights, issues of accommodation and accessibility.

So, what happened?

The employee was diagnosed with “deaf mutism, developmental delay, visual loss and anxiety state.” For at least the six years immediately prior to his termination, the employee’s performance appraisals had been “generally positive and complimentary.”

But, in 2015 a new manager is assigned to the store. He learns that the employees job coach is doing most of the employee’s work. He raises concerns about wage and hour issues that might be tied to a third party, non-employee performing work. He and the HR manager agree to request updated medical information from the employee, including what reasonable accommodation(s) he needs to do the job. The doctor recommends, “job coach–to do seeing & hearing” as an accommodation and noted the employee was limited in the areas of hearing, seeing, speaking, lifting more than 50 pounds, learning, reading, thinking and sleeping.

The parties then met but do not agree as to what happened at the meeting, or what the employee’s status was after that.  The fact is, the employee was not scheduled to and did not work after that date.  After the lawsuit was filed, the employer filed a motion for summary judgment. The judge denied that request finding:

  • the employer failed to make clear which functions of the job were essential (some employees testified that some of the duties in the job description were rarely performed)
  • thus, there remained a question of fact as to whether the former employee was able to perform the essential functions.
  • A permanent job coach could be a reasonable accommodation (noting the job coach was unpaid by the employer in this case);
  • even if the employee was able to perform the essential functions and a permanent job coach was a reasonable accommodation, the employer failed to show sufficient evidence of any undue hardship;
  • there was a question as to whether the employer had engaged in an interactive process with the employee or his representative (it was alleged at the final meeting the store manager said, “Don’t call me; I’ll call you); and more.
  • The judge suggested the employer may have “strung him along,” since they produce no documentation supporting any effort that they reached back out to the employee after the final meeting.


Lessons Learned?

Document, document, document! Nearly every concern the judge described dealt with facts that were unknown. After meeting with an employee, particularly on a matter that may impact the employee’s continued employment, consider sending the employee a letter. (1) Recap the key points covered in the meeting; (2) address the employee’s status; (3) describe what you need, if anything; (4) provide a deadline by which you need more information or a response; (5) invite the employee to contact you with any questions; and (6) advise as to what happens if you do not hear from the employee by that deadline.  That puts the ball in the employee’s court (pun intended?) to take the next step.  And, always talk to your company’s employment counsel.