A 10 Million Dollar Lesson about Perception

Occasionally, when an employee returns to work with a full release, an employer will have doubts about the employee’s ability to perform their job and question whether the employee is really able to return to work. The employer might be worried about additional risk if the employee is injured again or injures someone else.  Employers must remember, however, that the ADA protects employees from discrimination based on perceived impairments (as well as actual impairments).  Thus, refusing to return a fully-released employee to work based on a perception that the employee cannot do the job can lead to a claim for disability discrimination.

In a recent case out of Alabama, a jury returned a $10.5 million dollar verdict against an employer because the employer refused to allow an employee to return to work after an accident, even though the employee’s doctor provided a full release. The employer required the employee to submit to a medical evaluation (which cleared him for work) and required the employee take a number of field tests (which he passed), but still refused to allow the employee to return to his job.  The employer also sent conflicting letters about why the employee could not return to his position and rejected him from other alternative positions.

The jury found that the employer regarded the employee as disabled and refused to reinstate him because the employer regarded him as disabled. The verdict will be reduced post-trial.  Nevertheless, the case is a helpful reminder to employers that the law protects employees from discrimination based on employer perceptions of capability and that there can be significant risk under the ADA where an employer second-guesses a full release under the ADA.

The case is: Whitted v. Norfolk Southern Railway Company, Inc. N.D. Alabama, Case No. 2:13-cv-01550 (currently available by subscription).



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