Disability discrimination

Local decision should heighten awareness in new ADA era

published in Oklahoma Employment Law Letter | November 1, 2008

By Paul A. Ross

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”), ushering in a new era in disability discrimination law.  This legislation has the express purpose of expanding coverage under the Americans with Disabilities Act and allowing greater access to the jury trial system.  Whether or not employers see an increase in disability discrimination claims because of this legislation, the ADAAA will undoubtedly limit an employer’s ability to seek dismissal or summary judgment on disability-based claims – a fact that will lead to more jury trials.

A recent decision by the District Court for the Northern District of Oklahoma highlights the perils of disability discrimination litigation, and the significant hurdle employers face once such a case reaches a jury.  Although the ADAAA does not become effective until January 1, 2009, now is undoubtedly the time to reevaluate your interactive process and accommodation procedures.

Sam Clyma was employed as a Maintenance Electrician (“ME”) for Sunoco, Inc., at its Tulsa petroleum refinery.  As an ME, Clyma worked with and around various deadly and volatile substances, many of which were under very high pressures and temperatures.  Clyma also worked with heavy equipment, and various trucks, cranes, forklifts and trains routinely passed through the refinery.

In order to minimize the risk of harm to its MEs and other employees, Sunoco implemented various safety practices, including a system of distinct audible alarms.  Among other things, these alarms warn of poisonous gases, the need to evacuate the facility, impending storms, moving vehicles, or that an employee or visitor needs help.  Sunoco employed approximately 100 audible alarms at its Tulsa refinery, and the company considered the ability to identify and respond immediately to an alarm to be an essential job function.  As the company explained, an immediate response could be the difference in preventing damage to the facility or, more importantly, injury to others.

In May of 2002, Sunoco learned of an incident involving Clyma and a company safety alarm.  Clyma reported that, although he was within arm’s reach of a safety alarm, he had been unable to hear an alert while working on nearby equipment.  Clyma was evaluated by a company physician and a personal physician, each of whom determined Clyma was suffering from severe hearing loss.  Each physician restricted Clyma from working in any noisy environment, both due to his inability to hear alarms, and due to the threat of further damage to his hearing.  Unfortunately, working in such environments is an essential function of the ME position.

Based on Clyma’s medical restrictions, Sunoco did not return Clyma to work as a ME, believing he could not safely perform all of the essential functions of that position.  However, after conducting a refinery-wide search, Sunoco did offer Clyma an alternative, available position which did not require him to be exposed to high noise levels.  Clyma rejected that suggestion, and filed suit.

Despite what seemed to be a clear case of an employee that was not able to perform the essential functions of his job, despite what appeared to be a clear “direct threat” defense, and despite what appeared to be a reasonable accommodation, the jury found in favor of Clyma, awarding him over $150,000 in back pay, over $200,000 in compensatory damages for emotional distress, and $100,000.00 in punitive damages.

Subsequent to the entry of judgment, Sunoco filed detailed motions with the Court challenging the sufficiency of the evidence and the jury’s conclusions.  On August 8, 2008, the Court denied Sunoco’s motions, concluding there was evidence, however slight, from which a jury could have found in Clyma’s favor.  The Court noted Clyma offered evidence not all the electrical maintenance work was performed in noisy areas, that it was not necessary to have conversations with co-workers, and he believed he could safely work alone as an ME, thus, working in a noisy environment was not an essential job function, no direct safety threat existed, and no accommodation was required; instead, Clyma should have been put back in his ME job.  Because there was sufficient disputed evidence as to these issues, the Court could not overturn the jury’s verdict.

The results of the Clyma litigation should remind employers there is no perfect case in a jury trial setting.  Individuals with disabilities often make sympathetic plaintiffs, and a jury faced with such a plaintiff may overlook the weight of the evidence.  And, once the jury has found in the plaintiff’s favor, a Court will be reluctant to second-guess that decision.

In the post-ADAAA era, the number of disability discrimination jury trials will be on the increase.  An employer must be aware of and respect its employees’ rights to perform existing jobs even with impairments, as well as its obligation to engage in a good faith interactive process to determine what, if any, reasonable accommodations might exist.