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October 1, 2007
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Allegations of employment discrimination can lead to costly penalties

In a June 2007 press release, the federal Equal Employment Opportunity Commission (EEOC) reported that in its fiscal year 2006, it had received almost 17,000 complaints of employment discrimination “on the basis of race, color, sex, national origin, disability and reprisal.” The law requires that employment discrimination complaints be filed with the EEOC before filing them in court. During its investigation of each complaint, the EEOC requires a response from the employer and requests copies of a wide variety of documents. This results in a substantial commitment of time and money. If court proceedings follow, the additional time and money expended can seriously detract the employer's attention from its primary mission. Thus it is prudent to establish a well-thought risk-management program to reduce the risk of employment practices litigation. A good program also boosts employee morale because it should include a process to enhance the quality of communication between management and employees.

This article describes an example of alleged discrimination in violation of the Americans with Disabilities Act (ADA) and offers risk-management techniques. Although all the facts described are a matter of public record, changes have been made to protect the identity of the persons involved.

Case Example: Alleged Violations of the ADA

Sally was a longtime nurse practitioner for a large, rural community mental health center. She worked for the center her entire career (more than 20 years). Her performance evaluations were uniformly glowing. Her supervisors described her as a “self starter” who frequently did more than was asked of her. She was responsible for directing the center's inpatient crisis stabilization unit. Her coworkers liked and respected her, and she had formed many long friendships with them. The center's management had changed during the past three years of her tenure following the CEO's departure to different employment.

Unfortunately, Sally became ill with leukemia at about the same time management changed. She had to take leave from the center for treatment, which included chemotherapy. She returned to her job after five months and again received a good performance evaluation.

Within a year, however, her condition deteriorated, and she had to take another leave of absence. Her recovery from a second round of chemotherapy was slower, but her doctors were encouraging, saying that she would have a normal life expectancy. Her doctors eventually cleared her to return to work, but she was restricted to part time. Although she could care for herself, feed herself, and drive, she had low energy and difficulty walking and lifting. It was difficult for her to stand for extended periods. She became tired easily after work activities requiring more than mild exertion.

The crisis unit had a rotation schedule for night duty, which her doctors advised her not to do. Thus, Sally told the CEO that she was disabled and asked the center to accommodate her disability by allowing her to return to full-time work gradually. She also asked to be taken off the night duty rotation until she was able to work full time.

Sally did return to work part time, but she heard rumors that the CEO was going to “force her out.” She became upset and shared some of her frustration with coworkers, telling them that she thought the CEO was not willing to accommodate her. The CEO heard that she was talking to coworkers, and sent her a memo ordering her not to talk about her accommodation requests and to say only that her continued employment depended on her doctors' recommendations. Sally responded with a memo agreeing to say that her continued employment depended on her doctors. However, she also asserted that she felt she had a right to express her opinion that management was not willing to accommodate her. When the CEO received her memo, Sally was fired for “insubordination.” Sally then filed a complaint with the EEOC alleging that she had been fired in violation of the ADA.

Legal Principles Applied to Facts

In order to state a claim for violation of the ADA, a plaintiff must demonstrate that he/she is a “qualified individual with a disability.” A “disability” is a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” In order to be “qualified,” the employee must be able to perform the “essential functions” of the job with or without a “reasonable accommodation.” An employer is not required to make accommodations that impose an “undue hardship,” taking into account, among other factors, the cost of the accommodation, the employer's financial resources and size, and the employer's type of business. A reasonable accommodation may include “job restructuring, [and] part time or modified work schedules.”

Possible damages awardable in an ADA claim include lost wages with the cost of benefits and compensation for mental anguish. Lost wages include both past and future lost wages. Depending on the circumstances, lost wage claims can amount to very large sums, sometimes over $1 million. Compensation for mental anguish, noneconomic damage, is limited depending on the size of the employer. If an employer acts with “malice” or with “reckless disregard” of the employee's ADA rights, punitive damages meant to punish the employer may be awarded. Furthermore, the party who loses the case must pay the other's legal costs and attorney fees, which can sometimes be $50,000 or more.