Once during mediation, a federal judge asked me if I knew which type of discrimination jurors hated the most? I thought maybe age discrimination or retaliation, which jurors could either relate to personally or through a spouse or parent.
“No,” said the federal judge. “The answer is discrimination against veterans.”
With a shout-out to Rachel Stone at Law360 for this article, I think I can do one better.
How would you like to defend a disability discrimination claim from a veteran who has combat-related post-traumatic stress disorder? Ms. Stone reported that a federal jury had awarded $250,000 to an employee who claimed that his current employer refused his requests for a service dog to help manage his PTSD.
I went back and checked out the employer’s failed attempt last year to obtain summary judgment. One of the employer’s arguments was that the employee could perform the essential functions of his job without accommodation. Therefore, the employer had no obligation to provide him one.
The Court found that argument “unconvincing” for several reasons. First, the facts showed that the plaintiff requested an accommodation due to his disability. The plaintiff had maintained throughout that this request stands independent of his ability to perform the essential functions of his job.
Second, an “accommodation” isn’t just about modifying the workplace to allow a person with a disability to perform the job’s essential functions. Separately, an accommodation allows a person with a disability to enjoy the same benefits and privileges as an employee without a disability. Thus, the accommodation need not be related to the essential functions of an employee’s job. Rather, it may simply enable an employee to enjoy equal benefits and privileges of employment. In the plaintiff’s case, that included the right to work without the burden and pain of PTSD.
Third, the court concluded that the ADA regulations themselves permit an employee to seek a reasonable accommodation “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” Other courts agreed.
But, I think what may have resonated most with the jury — other than a disabled plaintiff with a record of service to this country — is that his requested accommodation wouldn’t have cost the company anything. He just wanted to bring his service dog to work. Unless the animal causes a direct threat to others, that’s a reasonable request.
So your takeaway is something that I borrowed from a Fortune 50 attorney and have long since preached. That is, when someone with a disability asks for a reasonable accommodation, grant it. Full stop.