By: Lisa Alexis Jones, Esq.
A pair of multi-million dollar federal jury verdicts in separate ends of the State of Wisconsin should remind employers that the price for failing to accommodate and retaliating against disabled employees in violation of the Americans with Disabilities Act can be steep indeed.
On July 1, 2021 a jury in the Western District of Wisconsin awarded a hearing-impaired train conductor $44 million, with $40 million of that award constituting punitive damages, against Union Pacific. The plaintiff, who had been hearing-impaired since youth, had successfully performed his duties for at least a decade with the assistance of hearing aids. When Union Pacific instituted “hearing acuity tests” to comply with newly-enacted federal regulations designed to minimize noise exposure and ensure protection of employees’ hearing, the plaintiff passed the acuity test when assisted by his hearing aid, but could not pass the test while using a device Union Pacific selected as a hearing protectant that it claimed conformed with federal regulations. Union Pacific rejected the plaintiff’s proposed accommodation of a custom-designed hearing protection device nor identified any alternative device. Accordingly, the plaintiff could not pass the required acuity test, and Union Pacific terminated his employment. The plaintiff proffered evidence, however, that the hearing device chosen by Union Pacific, in essence, provided more protection than what was required under federal law, and the ability to pass the hearing acuity test with the device, and only that device, was not an essential function of his job as a conductor. The jury agreed.
On July 15, 2021, a jury in the Eastern District of Wisconsin awarded an employee with Down syndrome $125 million in punitive damages against Wal-Mart. During her employment tenure, the employee had multiple annual performance reviews of “Solid Performer” or “Meets Expectations” as a sales associate. The employee, however, experienced significant difficulty when Wal-Mart changed her long-standing work schedule. Wal-Mart refused the employee’s request to return to her old schedule or otherwise modify the new schedule and terminated the employee for substandard performance.
While the ADA’s statutory cap of $300,000 will undoubtedly save employers from having to actually pay substantial punitive damages awards, these jury verdicts send a clear message to employers that they have an obligation under the law to evaluate the individual circumstances of employees with disabilities when considering requests for reasonable accommodations.
For more information or assistance with reviewing these verdicts and how that may impact your business, please contact Lisa Alexis Jones.
Lisa Alexis Jones is a Partner in the firm’s Employment & Labor Practice Group where she leads the Workplace Harassment & Discrimination Group. She can be reached at 332.232.1300 or firstname.lastname@example.org.
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