This document was prepared as part of the Commission’s celebration of the twentieth anniversary of the Americans with Disabilities Act (ADA), which became law on July 26, 1990. We highlight twenty significant ADA employment matters litigated or resolved by the Commission to obtain relief for people with disabilities. These cases reflect the wide range of work that the Commission does to enforce the rights of people with disabilities.
The summaries below are based in large part on summaries prepared by the Commission’s Office of General Counsel.
The Commission brought this landmark disability discrimination lawsuit alleging that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. The case resulted in the largest monetary recovery in a settlement of a single ADA lawsuit in EEOC history.
Under the terms of the consent decree, the EEOC provided claim forms to certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy. The claimants were asked to report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work. Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300, for a total award of approximately $6.2 million.
As with all EEOC litigation, none of the settlement fund will be retained by the EEOC; all of it will be distributed to affected employees.
Attorneys: John C. Hendrickson (Chicago), Gregory Gochanour (Chicago), Aaron DeCamp (Chicago), Ethan M. Cohen (Chicago), Deborah Hamilton (Chicago), Laurie Elkin (Chicago)
United Airlines agreed to settle a federal lawsuit brought by the Commission alleging that the Chicago-based company’s overtime policy violated the ADA.
The suit arose from a charge filed by Samuel Chetcuti, a storekeeper working for United at the San Francisco International Airport. The Commission’s suit asserted that United’s policy of denying the opportunity to work overtime to anyone placed on light or limited duty had greater repercussions for employees with disabilities, since these workers were more likely to be assigned to light duty. For example, Chetcuti, who has epilepsy, was under medical restrictions that prevented him from operating heavy machinery and working at heights, but did not restrict the number of hours a week he could work. Chetcuti was given light duty for his regular work schedule, and as a result, United had barred him from an overtime schedule despite the fact that he was medically cleared to work overtime.
Under the settlement, United agreed to pay $850,000 to a class of current and former employees with disabilities who were denied employment opportunities at San Francisco International Airport due to this policy. United also agreed not to reinstate the policy, which it had stopped using at the time of the consent decree.
Attorneys: William R. Tamayo (San Francisco), David F. Offen-Brown (San Francisco)
The Commission alleged that a packaging sourcing business headquartered in Cleveland, Ohio failed to reasonably accommodate the visual impairment of an employee at its Minneapolis facility and discharged her because of her disability.
The employee had worked as a machine operator at the facility for many years when she was diagnosed with diabetes in May 2001. A few months later she began treatment for diabetic retinopathy, a complication of the disease that causes damage to the tiny blood vessels inside the retina. The deterioration in the employee’s vision made it difficult for her to perform her machine operator position, and in December 2001 she was given packer responsibilities, which required her to inspect and pack newly labeled bottles. Her failing eyesight affected production, and in October 2003, she was transferred to the job of parts feeder.
When that position was eliminated in the summer of 2004, the employer asked the employee what accommodations she needed to move into a packer or machine operator job. She suggested a magnifying glass, which the employer rejected on the grounds that it would interfere with her ability to use her hands. The employee contended that there were magnifying devices on the market that can be mounted on the head or worn as glasses, which would enable her to read the fine print on labels while having her hands free to perform the other functions of the packer job. After receiving a note from the employee’s doctor in October 2004 confirming her poor vision, the employer fired her.
A two-year consent decree provided $120,000 in monetary relief to the former employee and required that the employer comply with the ADA.
Attorneys: Jean P. Kamp (Chicago), Robert F. Tomlinson (Milwaukee)
A jury found that Convergys violated the ADA by denying Ahmet Demirelli, who has brittle bone disease and uses a wheelchair, an additional few minutes for his lunch break as a reasonable accommodation for his disability, and then firing him for being late. Demirelli needed the additional time because his wheelchair prevented him from looking over the tops of the workstations to find an empty station, and he had to inspect each workstation until he found an empty one. His supervisor refused to reserve a workstation for him.
Convergys appealed. The Commission argued in the Eighth Circuit that the district court’s jury instruction that an employee is required to notify the employer only of the general need for an accommodation was an accurate statement of the law. Although an employee must provide enough information for the employer to determine the type of accommodation needed, or whether one is possible, it was undisputed that Convergys knew that Demirelli needed an accommodation and an effective accommodation would have been obvious to any reasonable employer.
The Commission also argued that there was no legal basis for Convergys’s contention that an individual who can perform essential job functions with accommodation is rendered unqualified if he does not ask for the right accommodation. Whether Demirelli adequately informed Convergys of his need for an accommodation goes to whether the company’s duty to accommodate was triggered, not to whether Demirelli was qualified.
The court of appeals held, among other things, that the district court properly ruled that an employer’s duty to reasonably accommodate an employee’s disability is triggered where the employee makes the employer “aware of the need for an accommodation,” even though he does not request a specific accommodation. In addition, the court held that even if punctuality were an essential function of Demirelli’s job, Convergys could still be required to give him a modified work schedule as an accommodation where the new schedule “merely create[s] a different time” for the employee to be punctual. The court rejected Convergys’ argument that extending Demirelli’s break time by 15 minutes would eliminate the company’s punctuality requirement.
Attorneys: John F. Suhre (OGC), Susan L.P. Starr (OGC), Barbara Seely (St. Louis), Robert Johnson (St. Louis)
A barista with mental impairments (including bipolar and attention deficit disorders) performed well when she was accommodated with extra training and support, but a new manager stopped accommodating her. When her performance suffered, he cut her hours, berated her in front of customers, placed her on a performance improvement plan, and discharged her.
The case settled for $75,000 in monetary relief to the barista and an additional $10,000 to the Disability Rights Legal Center. The employer was also required to purge the barista’s employment file of all reviews and notes written by the new manager and to post its EEO policy and a notice of the settlement at all area stores.
Attorneys: Lisa Ann Cox (Seattle), Kathryn Blaire Olson (Seattle), John Freeman Stanley (Seattle), William R. Tamayo (San Francisco)
A chemical plant fired a lab clerk with scoliosis of the lumbar spine and lumbar disc disease because the company believed it was unsafe for her to walk anywhere at the plant. The company had required her to undergo a functional capacity examination because her supervisor believed her difficulty in walking might be a danger to herself and others during an emergency evacuation. Following the examination, the company concluded that it was unsafe for her to walk at all on the plant site. The company argued that evacuating in an emergency was an essential function of her job and that she was unable to perform that function.
At trial, the Commission presented testimony from an ADA accessibility expert who said that the lab clerk could safely evacuate the plant. The Commission also presented testimony from an occupational rehabilitation expert, who said that the lab clerk could perform the essential functions of her job and that evacuating a facility in an emergency was not an essential job function. The Commission called company managers who testified that the lab clerk did not pose a direct threat, that the functional capacity examination was not job related because it tested areas that were not part of the lab clerk job, and that the company did not consider an accommodation for the employee following the examination.
The jury returned a verdict for the Commission, awarding $91,000 in backpay, $200,000 in frontpay, and $1 million in punitive damages (reduced in accordance with the ADA’s statutory damages cap of $300,000). The employer appealed, and the Fifth Circuit affirmed the judgment with respect to liability, backpay, and punitive damages. It reversed only the frontpay award.
Attorneys: Michelle T. Butler (New Orleans), Gregory T. Juge (New Orleans), Joseph A. Seiner (OGC)
The Commission alleged that defendant failed to provide a reasonable accommodation to an employee with epilepsy, bipolar disorder, and attention deficit hyperactivity disorder, and then discharged him because he was disabled.
The employee worked successfully as a loader/unloader for about a year, until UPS assigned him the additional duty of routing packages being loaded onto trucks. This function required him to remember zip codes, which he had difficulty doing because of learning problems caused by his impairments. He requested additional training and a transfer to a job that involved only unloading trucks, so he would not have to sort packages by zip code.
In response, UPS asked for medical information about the need for accommodation, which the employee’s doctor provided. UPS gave the employee additional training, but refused to transfer him because it determined, without clarifying information provided by his doctor, that he was not disabled. Following its progressive discipline policy, UPS fired the employee because he made too many mistakes sorting packages.
The consent decree resolving the case provided for payment of $110,000 to the employee, and enjoined UPS from disability discrimination at its Decatur, Illinois facility.
Attorneys: Ethan M. Cohen (Chicago), Gordon Waldron (Chicago), June Wallace Calhoun (Chicago), Gregory Gochanour (Chicago), John Hendrickson (Chicago)
A blind applicant for a customer service representative job was told it would not do him any good to put in an application because the company was not set up to handle blind people. After he filed his EEOC charge, the company called the applicant for an interview, but gave him a braille test that had three times as many questions as the written test given to sighted applicants.
At trial, the Commission produced evidence that the applicant had been trained to perform customer service jobs with the aid of screen-reading technology (JAWS), which translates text into speech. The company, however, never attempted to install the technology and did not consider whether other accommodations could be made that would enable the applicant to do the job. The company also failed to contact the State Division of Vocational Rehabilitation, even though the company was aware that that agency often paid some or all of the costs of implementing adaptive technology. An expert presented by the Commission testified about how JAWS works and about the expert’s installation of screen-reading software in many business call centers.
The jury returned a verdict for the Commission and the applicant (who intervened in the suit), awarding $2,000 in backpay, $5,000 in compensatory damages, and $8 million in punitive damages (the award was reduced in accordance with the ADA’s statutory damages cap of $300,000).
Attorneys: Mia Ellen Bitterman (Denver), Anjuli Kelotra (Denver), Rita Byrnes Kittle (Denver), Lynn L. Palma (Denver), Nancy A. Weeks (Denver)
The Commission resolved a class claim on behalf of 12 applicants with learning disabilities who were screened out of unskilled automobile manufacturing jobs by a preemployment test.
The parties entered into a settlement providing each applicant an opportunity to take the test with the assistance of a reader and conditional job offers (subject only to a physical examination) to those who pass the test and complete the rest of the selection process (background check, drug test, etc.). The applicants were to receive a total of from $52,000 to $126,000 depending on their success in completing the hiring process. The manufacturer agreed that in the future it would provide reasonable accommodations to enable all applicants with reading disabilities to take the test.
Attorneys: Tammy C. Klein (Detroit)
The Commission brought a claim against a staffing agency that places nurses and other licensed medical support personnel in acute care facilities for refusing to hire an applicant for a part-time instrument technician position because of her disability. The applicant was born deaf and communicates in writing and through sign language. She had 8 years of experience as an instrument technician and was working in that position at a teaching hospital. Instrument technicians sterilize and set up surgical instruments in hospital operating rooms and other settings, following written instructions.
After a number of attempts to contact the staffing agency that were unsuccessful due to the inexperience of the agency’s employees with handling TTY relay calls, the instrument technician was connected to the agency’s surgical services supervisor, who told her she could not apply for any position if she had a disability.
Under a consent decree resolving this case, the staffing agency paid the applicant $130,000 in compensatory damages, and was enjoined from discriminating on the basis of disability or failing to reasonably accommodate an individual with a disability.
Attorneys: Dana C. Johnson (Los Angeles), Anna Y. Park (Los Angeles), Cherry-Marie D. Rojas (Los Angeles)
The Commission alleged that a nationwide company that provides recruiting, staffing, and outsourcing services failed to reasonably accommodate two deaf applicants during the application process and refused to hire them because of their disabilities. The deaf applicants appeared at defendant’s facility in Austin, Texas in response to an advertisement for entry level assembly positions. The employer gave the other applicants application forms, but told the two deaf applicants that it would call them after making arrangements for a sign language interpreter to assist them.
Over the next several months, the applicants contacted the employer several times (via TTY relay service and email) about applying. The employer’s representative told them by email that due to the cost of a sign language interpreter, the employer would not provide an interpreter until it had at least six deaf applicants.
The resulting suit was resolved by a consent decree under which the two deaf applicants received a total of $78,300 in monetary relief. The decree required the employer to modify its reasonable accommodation policy to provide hearing-impaired applicants with: (1) an interpreter as soon as possible upon request; (2) if an interpreter is not requested, a written interview and extra time to complete any tests; and (3) an interpreter during training, without a formal request or any delay in training compared to hearing individuals. The employer was also required to distribute a printed form to all deaf applicants that asks about their preferred method of communication and provides a means for them to request the services of a sign language interpreter in the application and training processes.
Attorneys: Robert B. Harwin (San Antonio), Judith G. Taylor (San Antonio), Jennifer Randall (Denver)
A fast food restaurant employee with Down Syndrome was repeatedly harassed by management staff and coworkers. In addition to coworkers screaming profanities at him and calling him “stupid,” the employee was subjected to physical assaults, including coworkers placing a knife against his stomach, putting ice down his clothes, throwing water in his face, and shoving him.
In settlement of the Commission’s suit, the employee received $90,000, to be used to fund a special needs trust which would enable him to remain eligible for needs-based government benefits. The company was enjoined from violating the ADA, and specifically from creating or tolerating a disability-based hostile work environment.
Attorneys: Jacqueline H. McNair (Philadelphia), Judith A. O’Boyle (Philadelphia), Mary M. Tiernan (Philadelphia), Anna M. Stathis (Newark)
In this ADA lawsuit, the Commission alleged that the employer, a waste removal company, discriminated against Deborah Brown, a boom truck driver and trash compactor repair person, when it fired her because of her disability – Crohn’s disease, an inflammatory bowel disorder. The employer fired Brown because it believed that exposure to waste products was exacerbating her disease. Despite the opinions of Brown’s doctors that the external environment had no relation to her Crohn’s disease and that she could continue to safely and effectively work around waste as she had done throughout her 10-year career with the company, the company refused to allow her to return to work after a medical leave of absence.
The case was resolved through a consent decree which provides for payment of $194,000 to Brown, representing $176,716 in general damages and $17,283 for reimbursement of out-of-pocket expenses. The employer was enjoined from discriminating against any qualified individual with a disability with regard to hiring or discharge and specifically from unlawfully discharging and otherwise denying employment opportunities to individuals with Crohn’s disease. The employer also agreed not to retaliate against Brown.
Attorneys: Gerald S. Kiel (Baltimore), Debra M. Lawrence (Baltimore), Arlene T Shadoan (Baltimore)
The Commission alleged in this ADA lawsuit that the employer, an air freight and delivery company, discharged the charging party, an assistant manager, because of her disability when she was hospitalized for depression and post traumatic stress disorder.
The charging party, who had worked for the company for over six years, had a lifelong problem of sleeplessness and depression and had been upset by the recent suicide of a friend. Over the objections of her immediate supervisor and her personal physician, and in violation of the employer’s own medical leave policy, the employer fired the charging party because a high-level manager had a “gut feeling” that she might “go postal.”
The case was resolved through a consent decree which provided for payment of $360,000 to the charging party (made in five installments beginning in April 2003), including $186,000 in compensatory and punitive damages, $50,000 for medical expenses and $124,000 in attorney’s fees. The employer agreed not to discriminate against any individual because of disability or retaliate against any individual for asserting rights under the ADA. The employer also agreed to provide ADA training to its senior managers and to adopt and distribute to all employees a statement regarding disability discrimination, accommodation of disabilities, and disability harassment.
Attorneys: Katherine E. Bissell (New York), Markus L. Penzel (Boston)
The Commission alleged that a hotel refused to hire an applicant as a receptionist because she is blind. The applicant had worked five years in a similar position for an international hotel chain. Additionally, the Oregon Commission for the Blind had offered to provide a technical consultant, adaptive equipment and any training required to help her do the job. The hotel agreed to pay the applicant $35,000 in compensatory damages.
Attorneys: Michelle Gonzalez (Seattle), Zulema Hinojos-Fall, A. Luis Lucero, Jr. (Seattle), Nancy H. Maisano (Seattle), Barbara J. Standal (Seattle), Gwendolyn Young Reams (OGC)
The Commission sought a preliminary injunction against the company because it had begun to take blood samples from employees who had filed injury reports of work-related carpel tunnel syndrome. The samples were then submitted to genetic testing for a specific chromosome deletion that may be linked to carpel tunnel syndrome in some cases. The Commission’s petition stated that the railroad was carrying out the genetic testing program without the knowledge or consent of the employees and that at least one worker was threatened with termination when he refused to give a blood sample.
The parties resolved the petition through an agreed order requiring the company: (1) to cease requesting that its employees provide blood samples for genetic tests; (2) to refrain from analyzing blood previously obtained; (3) to refrain from considering any gene test analysis previously performed on any of its employees; and (4) to preserve all relevant evidence until the Commission completed its investigation of the charges. The case led to a mediated settlement of $2.2 million.
Attorneys: Rosemary J. Fox (Milwaukee), Jean P. Kamp (Milwaukee), Laurie A. Vasichek (Minneapolis)
The Commission alleged that CEC Entertainment, Inc. intentionally discriminated against Donald Perkl by terminating his employment because he was disabled.
Perkl was hired to perform janitorial tasks at a Chuck E Cheese restaurant. Perkl had intellectual disabilities (referred to in the opinion as “mental retardation”) and autism, and was nonverbal, communicating through the use of picture cards. He worked with the assistance of a job coach, who taught him the tasks that he was expected to perform. When the district manager came to visit the establishment, he inquired as to who Perkl was. The manager responded that Perkl was a mentally retarded man who she just hired. The district manager then ordered her to fire Perkl. The manager testified that the district manager told her that it was the employer’s policy not to hire “those kinds of people.”
The jury awarded Perkl $70,000 in compensatory damages and $13 million in punitive damages (reduced in accordance with the ADA’s statutory damages cap of $300,000). The district court upheld the jury’s verdict.
Attorneys: Barbara L. Henderson (Milwaukee), Laurie A. Vasichek (Minneapolis)
The Commission alleged that Wal-Mart failed to reasonably accommodate the hearing impairment of an employee and discharged her because of her disability.
Wal-Mart hired Eduardo Amaro, with the knowledge that he was hard of hearing and would need an interpreter in certain circumstances, including training sessions and meetings. But at a mandatory training session, Amaro found that there was neither closed-captioning nor an interpreter for the training video. He left because he could not understand the presentation. Amaro’s supervisor ordered him to return to the session, explaining that a coworker who could finger-spell, but was not a certified American Sign Language interpreter, would interpret for him. When Amaro rejected this suggestion, the supervisor reported the matter to the store manager.
The next day, Amaro was transferred to another department to perform janitorial duties. Amaro questioned the transfer and again requested an interpreter, but the supervisor responded with a note accusing him of refusing to perform his job. After Amaro repeatedly requested an interpreter to explain the transfer, and after he ultimately declared he would not accept the transfer, he was immediately terminated. The jury awarded Amaro $3,527.79 in compensatory damages and $75,000 in punitive damages.
The employer appealed the award of punitive damages and attorneys’ fees. The Tenth Circuit upheld the punitive damages award and also left in place the attorneys’ fees award.
Attorneys: Christopher Lage (San Antonio), Susan B. Biggs (San Antonio), Robert B. Harwin (San Antonio), Lisa J. Banks (OGC), Philip B. Sklover (OGC), Lorraine C. Davis (OGC)
This case was the Commission’s first ADA case resolved by a consent decree. The suit challenged the exclusion of health insurance coverage for the treatment of HIV- infection, AIDS-Related Complex (ARC), and AIDS.
The case was resolved through a consent decree that provided up to $1 million in monetary relief to individuals denied coverage and resulted in the retroactive amendment of the employer’s health plan to include coverage for HIV-infection, ARC, and AIDS.
Attorneys: Deborah M. Barno (Detroit), Bart M. Feinbaum (Detroit), David A. Whitcomb (Detroit)
In this case, the first ADA employment case to be tried before a jury, the Commission alleged that AIC Security discharged an employee because he was battling cancer.
Charles Wessel, the executive director of AIC, was diagnosed with inoperable metastatic brain cancer, a terminal illness. Between 1987 and 1992, Wessel suffered a variety of effects from his cancer and treatment, including shortness of breath from having parts of his lungs removed, nausea from radiation and chemotherapy, and somewhat reduced memory capacity due to the effects of brain tumors. He missed work at times, but he continued his employment essentially full-time. The owner of the company, who knew that Wessel had cancer, fired him after taking over the company.
Wessel filed an EEOC complaint, and the Commission sued AIC and the company owner. The jury awarded $22,000 in back pay, $50,000 in compensatory damages, $250,000 in punitive damages against AIC, and $250,000 in punitive damages against the owner. (The total punitive damage award was reduced to $150,000 in light of the ADA’s statutory cap on damages.)
The Seventh Circuit upheld the judgment in all respects except for the imposition of individual liability on the company owner, and remanded for a determination of whether its decision would impact the punitive damage award. On remand, the district court declined to reduce the total punitive damage award.
Attorneys: Jean P. Kamp (Chicago), Allison J. Nichol (Chicago), Elaine M. Chaney (Chicago), John C. Hendrickson (Chicago), Gail S. Coleman (OGC), Carolyn L. Wheeler (OGC), Gwendolyn Young Reams (OGC), James R. Neely, Jr. (OGC)