Dear HR Executive:
All CEOs who think they can get by without an informed HR person need to read about a recent ADA case. How could an agoraphobic -- a person who's afraid to go outside -- win a lawsuit because he was denied a position that required he travel to interview people? The answer is -- because an HR person who didn't understand employment law made a really dumb mistake. Here's the story, which recently appears in B21's newsletter, Human Resources 21.
HR fumbles ADA case: Jury awards $6.5 million
Failure to accomodate disability only the beginning
At first blush, a recent $6.5 million verdict looks like Exhibit A in the argument for never taking an employment-law case before a jury: You never know just how hard you’ll get hit.
And the organization in this case got smacked with a two-by-four: A five-week trial (which would be expensive enough even if it won). A seven-figure verdict. And six figures of attorney fees yet to be awarded.
Behind the scenes gaffes
And while the verdict got all the headlines, that’s not the whole story. We can tell you that behind the scenes, the HR department fumbled the ball in important ways.
Here’s how it started: George Alberigi, 52, hired on as a medical-care eligibility case worker with Sonoma County in 1980. Six years later, Alberigi was diagnosed with agoraphobia (fear of being trapped in a situation or place) and related panic attacks, conditions that made it difficult for him to talk with strangers, especially face to face.
For 15 years, Sonoma County accommodated Alberigi’s disability. They allowed him to do his medical-eligibility case work on the phone. And the accommodation seems to work: Alberigi got good performance reviews the whole time. In 2000, he even won a Distinguished Employee Award. On the heels of the award, in 2001, Alberigi applied for a promotion. He was turned down because that new position required face-to-face contact.
He grew depressed, and by 2004, his doctor ordered him to resign for medical reasons.
Alberigi sued: The jury awarded $1.5 million in back and future wages based on the assumption he’d never work again. It awarded $5 million in punitive damages for pain and suffering.
What’s missing from this picture?
Here’s where HR fumbled: When Alberigi requested accommodation, the organization not only turned him down for the promotion, it reviewed his current job.
Sonoma County concluded that the case-worker position he’d been doing for the previous 15 years via telephone now required face-to-face contact. He’d have to meet clients in person. If Alberigi refused, the county said it didn’t have to employ him any longer because he was unable to perform a key requirement of the job. When Alberigi complained about the change in job requirements, the county offered him other jobs that didn’t require interaction with the public (at the same salary).
Alberigi was particularly insulted that he was offered a job as a low-level “clerk-typist.” Instead, Alberigi continued as a case worker, meeting clients face-to-face. His mental state allegedly deteriorated because of the panic disorder. He eventually resigned for medical reasons and called a lawyer.
You know the result.
What you can do
The take-home for HR:
- You can change the rules, but you need to grandfather the exceptions. Sonoma County was well within its rights to insist that its case workers meet clients face-to-face. It makes sense from a business perspective. But implementing the change is another issue. In this case, all the organization had to do to avoid this lawsuit was grandfather George Alberigi on the face-to-face meeting requirement and continue to accommodate his disability by allowing him to work on the phone.
- Timing matters. The time to review someone’s current job and make big changes to the job description is not immediately after taking an adverse action, e.g., turning someone down for a promotion. Attorneys advise waiting at least six months to avoid making it look like retaliation or payback.
- If a worker is being accommodated for a disability under the Americans with Disabilities Act (ADA) and the accommodation is working, you’re better off leaving it as is. If you must make a change, you’ll have to start the entire ADA accommodation process over again.
- Review the necessity of the change itself. The question Sonoma County couldn’t answer was this: If face-to-face contact is so important to the success of the job, why was Alberigi able to get good performance reviews and a Distinguished Employee award?
Cite: George Alberigi v. Sonoma County, et al., No. SCV 233788, Sonoma County, CA, Superior Court.