Washington Jury Awards Ex-UPS Driver $238 Million Verdict in Hostile-Work-Environment Lawsuit: Sometimes companies don’t see employment issues as “bet the company” problems. Tell that to UPS after it got hit with a $238 million jury verdict in a hostile-work-environment lawsuit.
During his time with UPS, the plaintiff Tahvio Gratton claimed that he was laid off in favor of white drivers with less seniority; repeatedly called “boy” by a supervisor; and given a less desirable truck and route than his white counterparts. UPS eventually fired Gratton following a sexual harassment investigation to determine whether he touched a female employee’s back. After filing suit in the U.S. District Court for the Eastern District of Washington and making it all the way to a jury trial, Gratton won a verdict awarding him $39.6 million for emotional distress and $198 million in punitive damages. That certainly seems….punitive. UPS plans to appeal. This case is a good (and terrifying) reminder of how crucial it is for employers to ensure that their harassment and discrimination policies are effectual; that supervisors are properly training their employees on equal-employment-opportunity issues; that employees have effective complaint-filing procedures; and that employers are conducting thorough investigations into employee complaints. You can read more on this story here.
Can We Interest You in yet ANOTHER McLaren Macomb Update?: We’ve reported on the McLaren Macomb decision issued by the National Labor Relations Board (NLRB) a couple times already—okay the total appears to four times—including as early as Feb. 28, 2023, (see story here) and as recently as our last employment update (found here). Hopefully, this demonstrates how important and ever-changing this decision is, rather than suggesting an inability on our part to stir up new content. By way of a refresher, in MacLaren, the NLRB ruled that by presenting soon-to-be-laid-off employees with severance agreements that contained broad confidentiality and non-disclosure provisions, the employer had violated Section 7 of the National Labor Relations Act. However, there was some question as to whether the NLRB’s decision would stand up to appellate scrutiny. That question has now been answered. On Sept. 19, 2024, the Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee) granted the NLRB’s petition for enforcement and denied the employer’s cross-petition for review—i.e., the Sixth Circuit sided with the NLRB. So, when it comes to confidentiality and non-disclosure provisions in contracts covering employment, employers would do well to tread lightly. Looking for some specific tips? We’ve covered that as well (click here). To read the Sixth Circuit’s decision, click here.
The ADA’s Interactive Process Should Be Just That—Interactive: Ghulam Ali worked for the Environmental Protection Agency (EPA). Ali suffered from allergies. In engaging in the interactive process required by the Americans with Disabilities Act (ADA) as well as the Rehabilitation Act – given that Ali was an employee of the federal government – to identify whether a reasonable accommodation was available, the EPA had relocated Ali to different cubicles. Ali’s issues persisted, so he requested to be moved to a room instead of a cubicle. The EPA rejected that request and allowed Ali to work at home full time. Ali responded by saying that work from home was not a good option, in part because it would require him to use a printer that exacerbated his condition, and he reiterated his request that the EPA move him to a private room. The EPA said that it had already offered Ali what it was willing to offer: 100% telework. Eventually Ali filed a formal complaint, and his case eventually found its way to a federal district court. The district judge granted the EPA’s motion for summary judgment, concluding that Ali had failed to act in good faith during the interactive process because he rejected telework without providing an explanation. On appeal, the D.C. Circuit Court reversed.
The court noted that employees can obstruct the interactive process by withholding relevant information—e.g., medical information. However, the court found that Ali provided all the information the EPA requested of him. Ali had not frustrated or obstructed the interactive process. In addition, the EPA never asked Ali whether he had additional reasons for rejecting telework. In fact, it appeared that the EPA never spoke to Ali between the time it determined that he qualified for a disability accommodation and when it presented him with the telework accommodation. The EPA simply presented the accommodation on a take-it-or-leave-it basis. Because the EPA offered an accommodation on that basis, and because the EPA could not establish that it was Ali, and not the EPA that caused the breakdown in the interactive process, the deciding issue was whether the EPA’s proposed accommodation—100% telework—was a reasonable accommodation. The court recognized that employees aren’t entitled to their preferred accommodation; rather employers need only provide some reasonable accommodation. But the D.C. Circuit concluded that whether the offer of 100% telework was indeed a reasonable accommodation was a fact-specific question that should be decided by a jury.
The Ali case shows how crucial the interactive process is. While it remains true that employers have the right to choose which accommodation they permit to be put in place, employers who fail to work with employees in coming to that conclusion—and instead offer accommodations on a take-it-or-leave-it basis—do so at their peril. You can read the full court decision here.
