44 million more reasons to properly define essential job functions and explore reasonable accommodations. And it’s the SAME EMPLOYER!!! 😲😨🤯

On Wednesday, I posted about a $250K Arkansas federal jury verdict against an employer for violating the Americans with Disabilities Act.

Well, you’ll never believe this! Earlier in the month, another federal jury in Wisconsin concluded that the same employer had violated the ADA. But this wasn’t any piddling $250K verdict. No, sir. The jury awarded $3,670,000 in compensatory damages and another $40,300,000 in punitive damages.

Back up the armored car!

The Wisconsin case had been kicking around for quite a while. Originally, the district court judge awarded summary judgment in the employer’s favor. On appeal, however, the Seventh Circuit reversed. The short of it is this:

• The employee’s job required that he pass a hearing test.
• However, the employee could only do so when wearing his hearing aids without additional hearing protection.
• The company claimed that using this extra hearing protection was an essential function of the job.
• The employee disagreed, and the two sides were never able to arrive at a reasonable accommodation.
• So, the company fires the employee.

The appellate court concluded that there were disputes of material fact about what job functions were essential and whether a reasonable accommodation existed to help the employee.

Yadda, yadda, yadda, the jury resolved those issues earlier this month.

• Yes, the employee proved his disparate treatment claim
• Yes, the employee proved his failure-to-accommodate claim
• No, the employer did not prove that allowing the employee to continue working would have posed a direct threat to himself and others in the workplace
• No, the employer did not prove that accommodating the employee’s disability would have imposed an undue hardship on the business.

Total cost: just under $44,000,000, plus attorney’s fees and costs (for both sides).

Now, the ADA has caps on the amount of compensatory and punitive damages that juries can award. The judge will reduce both awards to no more than $300K each.

Still, this case provides a good reminder for employers to carefully define what job duties are essential and what aren’t, especially now as more folks return to work. Near or at the top of your list should be deciding whether regular in-office attendance will be essential.  If so, make sure it’s in the job description, communicate that in writing, and have your employee(s) acknowledge it.

Or don’t. This isn’t Communist Russia. No one’s forcing you.

Just give me a heads up when you go to trial so that I can get the scoop on another monster jury verdict.