Kevin Terry, a customer service representative at a Time Warner Entertainment Company office in Fayetteville, Ark., suffered from nocturnal epileptic seizures. His supervisor, Jane Foster, accommodated his condition by allowing him to arrive after the usual starting time and stay later in the evening to make up the missed time. But when angry co-workers complained about Terry’s special treatment, Terry and Foster were eventually fired. As a result, Time Warner was slapped with punitive damages for violating the Americans with Disabilities Act. We’ll tell you about what went wrong and how you can avoid similar trouble.
New Sick Leave Policy Adopted
When employees complained about Terry’s flexible schedule, office manager Cindy Snyder responded by issuing a new sick leave policy prohibiting employees from making up time missed for illness. When Foster defended her accommodation of Terry by pointing out that the company’s HR manual suggested flexible scheduling as a reasonable accommodation for disabled workers, Snyder reportedly said, “We don’t have to follow the ADA,” and “I don’t care about the policy [in the manual].”
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Employee And Supervisor Fired For Collusion
Despite the new sick leave policy, Foster continued to accommodate Terry. Meanwhile, Snyder assigned another supervisor to monitor Terry’s work hours. When the supervisor reported Terry was absent on five occasions when his time sheets indicated he had worked a full day, Snyder fired Terry for falsifying his time sheets and Foster for colluding with Terry in doctoring the records. Snyder never checked Terry’s hours against computer logs or building alarm codes to verify whether he had worked on the disputed days.
Foster sued. She claimed Time Warner violated the ADA by firing her in retaliation for her continued accommodation of Terry. A jury awarded Foster $118,515 plus $136,000 in punitive damages. Time Warner appealed.
Supervisor’s Firing Ruled Retaliatory
A federal appeals court upheld Foster’s award noting that an employee’s refusal to implement a discriminatory policy is protected activity under the ADA. In this case, the court said, evidence was sufficient for the jury to find that Foster had an objectively reasonable belief that Time Warner’s sick leave policy violated the ADA and that she was terminated for refusing to apply the policy to Terry.
In particular, evidence showed that the charge against Foster for colluding with Terry in falsifying time sheets was a pretext for retaliation. That’s because Snyder never bothered to verify whether Terry had actually worked the hours recorded, although other employees said they saw him working late at night and he had finished all of his work.
Punitive Damages Warranted
The court also upheld the punitive damage award, finding ample evidence of malice in Snyder’s comments that she didn’t care about the company policy and didn’t have to follow the ADA. Another indicator was that she commissioned an antagonistic employee for surveillance of Terry. What’s more, having an accommodation policy didn’t indicate good faith because Time Warner’s managers failed to follow it, and the policy didn’t address retaliation for opposing discriminatory conduct.
What To Do
Although this case arose in another state, courts covering California could rule the same way. Here are some tips for smoother accommodations.
- Explain your practices. Make sure all employees understand your policies, including that disabled workers may be entitled to special accommodations such as a flexible work schedule. But do it without mentioning any particular employee.
- Ensure that supervisors follow your guidelines. This ruling demonstrates that when managers disregard company policies as Snyder did, you risk getting sued and possibly hit with punitive damages if they act with malice or intentional disregard for the law. Take very seriously any suggestion that your operating practices conflict with antidiscrimination laws or your own guidelines.
- Designate experienced staff to handle ADA issues. Refer accommodation requests to HR staff who have been trained in how to comply with disability bias laws.
- Evaluate accommodations. Don’t stop an existing accommodation for a disabled worker unless it is no longer needed, is not working or you are implementing an equally effective accommodation instead.