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No jury trials for disability retaliation—but you still must handle complaints properly

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in Discrimination and Harassment,Employment Law,Human Resources

Thanks to a recent 9th Circuit Court of Appeals decision, employers no longer face the prospect of jury trials to resolve ADA retaliation claims. That’s a big victory, since juries are notorious for returning large awards against employers. Plus, the decision makes it clear that punitive damages are not available for retaliation, either.

Recent case: Tannislado Alvarado was 65 years old when he was hired to work part time at a Church’s Chicken restaurant. Eventually, Alvarado was promoted to become a cook. His new position required additional duties, including cleaning out the walk-in refrigerator.

Alvarado got positive job evaluations for more than three years. That all changed after he called the company’s discrimination hot line to complain about ageist statements his supervisor allegedly made.

From then on, it seemed like Alvarado could do little right. He again called the hot line, complaining about retaliation and adding that it was painful for him to clean out the walk-in refrigerator.

The company referred him to a doctor, who said Alvarado had arthritis—and noted that the condition was common among older people.

Eventually, Alvarado was terminated and he sued, alleging age discrimination, ADA violations and retaliation for reporting that he had trouble cleaning out the refrigerator.

The restaurant asked the trial court not to order a jury trial to hear the disability retaliation claim. Alvarado appealed the case to the 9th Circuit.

That court analyzed the legislation and concluded that employees who claim they were punished for complaining about disability discrimination aren’t entitled to either a jury trial or punitive damages. That’s different from other retaliation claims made under Title VII of the Civil Rights Act.

In this case, the court noted that Alvarado’s disability claim failed because he was not disabled under the ADA—his arthritis didn’t substantially limit a major life function. The court was therefore reluctant to allow someone who complained about disability discrimination but wasn’t disabled to get a shot at a large jury award for alleged retaliation. (Alvarado v. Cajun Operating Company, No. 08-15549, 9th Cir., 2009)

Note: Of course, Alvarado still has several other claims, including age discrimination and retaliation for complaining about that. Don’t take this case as carte blanche for managers to come down hard on employees who use company resources such as hot lines to complain. Also note that other courts have ruled differently in similiar cases. This one could be headed to the U.S. Supreme Court.

Advice:
Continue to investigate retaliation allegations and train supervisors and managers to treat everyone who makes a good-faith complaint as if they never made the call.

Here’s why: Word will get around that using the company’s anti-discrimination process only risks punishment. Employees won’t distinguish between disability bias and other forms of discrimination. For example, if retaliation discourages a victim of sexual harassment from using the process, a court may conclude your complaint process is ineffective and may not require employees to use it. That means you’ll never have a chance to fix the problem before an employee sues.

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