Employment & Labor Insider

Two court decisions came out last week that ought to scare the heck out of employers.

Both involved employers who seem to have been aware of their legal obligations and tried to comply. The employers lost their cases because they either didn't go far enough, or didn't pay enough attention to "optics."

I'd like to talk about each of these cases in two separate blog posts. The next time you want to fire someone, and your lawyer sends you back to ask a few more questions or do a few more things, you'll understand why.

Today's case is the "good, but not good enough" case. Stragapede v. City of Evanston involved disability discrimination under the Americans with Disabilities Act. Mr. Stragapede had been a water worker for the City of Evanston, Illinois, for 14 years when he had a traumatic brain injury (not work-related). He was on medical leave for about nine months. When he was ready to return to work, the City sent him for a fitness-for-duty examination, and the City's doctor referred him to a neurologist for evaluation. The neurologist said he could probably return to work but recommended a brief "work trial" first. The City complied, and Mr. Stragapede passed the work trial. He returned to full-time duty and did fine for about two weeks.

(Ominous music here.)

In the third week, issues were observed. One day, Mr. Stragapede needed help changing out a water meter. The next day, he drove through an intersection while looking at his lap instead of the road (the light was green and there were no pedestrians). The day after that, he was unable to complete an unspecified work task after two hours. The next business day, he went to an assignment at Green Bay Road instead of Gross Point Road, where he was supposed to have been. Two days after that, he mistakenly went to Colfax Place instead of Colfax Street. The next day, he tripped on steps "and hurt his toes."

The City shared this information with the neurologist, who said the incidents were a result of Mr. Stragapede's brain injury. The neurologist did not reexamine Mr. Stragapede, or get information from anyone other than the City.

The City placed Mr. Stragapede on administrative leave. Two months later, the neurologist wrote a letter saying Mr. Stragapede could not perform "the essential functions of his job," and the City terminated his employment.

Mr. Stragapede sued for disability discrimination under the ADA and won big - the jury award plus a backpay calculation totaled $354,070.

And seventy-two cents.

Second-guessing the employer

In my opinion, the City did a pretty good job in trying to work with Mr. Stragapede. But here are some reasons they lost their case, and why their loss was upheld on appeal. Note that none of these are blatant mistakes -- I'd call them "less than optimal." That's what makes them so scary.

Not paying for a follow-up exam. After the employee started showing signs that maybe he wasn't 100 percent, the employer didn't send the employee back to the neurologist for another in-person examination and reassessment. In fact, the employee apparently wasn't even given an opportunity to communicate with the neurologist at all. Thus, the neurologist was relying completely on information provided by the employer. The appeals court (Seventh Circuit) found that a jury could rightfully conclude that the neurologist acted on information that was tainted or, at least, incomplete.

Disregarding the direct supervisor. The employer relied on the employee's indirect supervisor in determining that he was unable to perform the essential functions of the job. Meanwhile, the employee's direct supervisor -- who presumably had first-hand knowledge about the employee's day-to-day work -- thought the employee was perfectly capable. Employers, never disregard the opinions of your front-line supervisors. They know more than anybody. You don't always have to agree with them, but you shouldn't overrule them unless you have very good reasons.

Acting on a "legal conclusion" from a doctor. The letter that resulted in the employee's termination, written by a neurologist, concluded that the employee could not perform "the essential functions of the job." A neurologist has no more expertise to reach this legal conclusion than I have to determine that the employee had a "traumatic brain injury." The doctor had a right to his opinion, of course, but the fact that he was using ADA buzzwords makes it sound like the City asked him to say this in a letter so that they would have the documentation necessary to terminate the employee. (I'm not saying that happened, but I can see how it would look that way to a jury.)

A few other good ADA "FYIs" from the court's decision:

"Undue hardship" is not a defense to a disability discrimination claim. Undue hardship may be a defense to a failure to make reasonable accommodations (although it is a difficult defense to assert, so don't count on it). But it is not a defense when the employee doesn't need accommodation at all.

"Direct threat" is not in the eye of the beholder. An employer asserting the "direct threat" defense under the ADA has the burden of proving that the employee posed a threat to himself, to co-workers, or to the public that could not be eliminated with a reasonable accommodation. Therefore, it's not enough for the employer to have an honest, good-faith belief about direct threat that turns out to be wrong.

If you're going to claim "direct threat," make sure you have some evidence of "direct threats." Some of the "threats" claimed by the City were not dangerous at all, like accidentally going to Colfax Place instead of Colfax Street. Taking one's eyes off the road while driving isn't cool, but let he who is without sin cast the first stone, am I right? Since this was the only incident that was arguably dangerous, I'd want to make sure that no other employee ever looked at a cell phone or GPS, lit a cigarette, checked makeup in the rear view mirror, or unwrapped a cheeseburger while on the road. (Not that I've ever done this, mind you. I've just heard that it happens a lot.)

In Part 2, we'll talk about the sexual harassment case with bad "optics." (That word again - sorry!)