?A jury recently granted a $3.3 million award in a disability discrimination and retaliation lawsuit filed by a former legislative analyst for the Missouri House of Representatives.
On Sept. 30, the Circuit Court of Cole County entered a final judgment in the case against the Missouri House of Representatives and Daniel Adam Crumbliss, who was chief clerk of the Missouri House of Representatives at the time of the lawsuit. The jury found that the state failed to accommodate the analyst’s disabilities, unlawfully fired him based on his disabilities and retaliated against him for requesting accommodations.
The analyst was fired in 2017 after he requested workplace accommodations based on his anxiety and attention-deficit hyperactivity disorder. He claimed Crumbliss retaliated against him after he said that he would speak to the Missouri Commission on Human Rights.
The analyst said his disabilities interfered with sleeping, concentrating, thinking and interacting with others, but he said he was fully capable of completing the essential functions of his job. He requested a quieter work area and the ability to work from home some days and asked to bring in a third party specializing in accommodations to discuss the situation. He claimed his employer didn’t evaluate his need for accommodations or engage in an interactive process to determine reasonable accommodations, as required by the federal Americans with Disabilities Act (ADA).
The analyst’s direct boss questioned his work ethic and how seriously he was taking his job at a meeting several weeks before he was fired, according to court documents. The state argued that he was fired due to insubordination and refusal to do his job and cooperate with his team.
“After litigating employment cases for over 30 years, my opinion is that juries are increasingly intolerant when the jury believes the employer did not do the right thing,” said Mark Neuberger, an attorney with Foley & Lardner in Miami.
ADA Requirements
The ADA prohibits employers from discriminating against workers with disabilities or retaliating against disabled workers for requesting workplace accommodations.
“Even if an employer has a process or a policy in place, if an employee doesn’t know how to use it or a manager isn’t educated about their obligations under the law, it can go awry,” stated Michelle Barrett Falconer, an attorney with Littler in San Francisco.
“Many employers fail to take the time to go through the interactive process with the person seeking an accommodation because the employer is afraid of what the employee may ask for. This is a mistake,” Neuberger said. “Employers should be willing to have the discussion and should be willing to offer other reasonable accommodations. Under the ADA, the accommodation doesn’t have to be the one the employee wants. It just has to be one that offers them the opportunity to do their job.”
Consider alternative work assignments if possible. “There’s a whole laundry list of alternate schedules, transfer of marginal job duties, etc.,” Falconer said. “One thing I find is often overlooked is the idea of reassignment. Is there another job that we would have available to him for which he is qualified? Before you go to separation, there really is this obligation to think about transfer or reassignment to a different role. That’s the No. 1 big flag that comes up.”
Reassignment is an accommodation of last resort, according to the U.S. Equal Employment Opportunity Commission (EEOC).
“When you’re looking at that potential reassignment or transfer, a couple of things to keep in mind: The [EEOC] has generally taken the position that you need to find something that is as equivalent as possible. Sometimes there’s not a similar, equivalent job. You don’t have to promote the person. You could, if something is available and they’re qualified,” she added.
Training managers is important because “this area of law is complicated, oftentimes counterintuitive to managers and full of potential potholes for companies to fall into, especially when the employee’s condition also implicates the Family and Medical Leave Act, disability insurance and workers’ compensation,” Neuberger said.
The Job Accommodation Network, a service of the U.S. Department of Labor’s Office of Disability Employment Policy, offers tips and resources for employers about ADA compliance and accommodations.
