Jottings By An Employer's Lawyer

Saturday, October 30, 2004

MDV Watch - EEOC Hits DuPont in Louisiana Trial

A Louisiana federal court jury sided with the EEOC and Laura Barrios, for whom it sued last week, awarding almost $1.3 million to the former DuPont worker, who was "forced" into disability retirement. Check out the story at The $1 million punitive damages award will be cut to $300,000 under Title VII caps and then the whole verdict will have to pass post-trial scrutiny of the trial judge and then the 5th Circuit. Still the words of the EEOC General Counsel Eric Dreiban are worth considering:
The jury's verdict should signal employers that they should abandon paternalistic and discriminatory ideas about people with disabilities. Employers should engage in dialogue with employees with disabilities so that their employees receive effective and reasonable accommodations.
ADA cases are very difficult to sustain legally given the tight interpretation of the law, but as this case shows, in front of a jury a very different dynamic applies.

Update: Although MDV's that stand up intact on appeal are rara avis, and even this one did not stand upt totally, it still fared better than most. Excepting only the district court's award of $200,000 in front pay, the 5th Circuit found the contested evidence supported the jury's findings as well as upholding a partial summary judgment of liability under a "perceived disability" theory. EEOC v. DuPont (5th Cir. 3/1/07) [pdf].

This may not be the case to take on appeal, but it appears that DuPont was in effect hoisted in part by their own actions since the summary judgment was based on:
upon the broad restrictions placed on her by DuPont physicians, the total and permanent disability benefits provided to her with DuPont’s assistance, and DuPont’s pleadings and discovery responses. DuPont admitted in its discovery responses that Barrios was "incapable of walking” and “permanently disabled from walking.”
The court did not agree with DuPont's argument that it had considered her unable to work in only a narrow range of jobs, since it excluded all the jobs in the refinery based on its view that she could not safely evacuate in an emergency, and didn't provide evidence of jobs outside the plant that she could have done.

This is a good example of how difficult ADA cases are going to be for employers when they get beyond the issue of disability and force employers to defend on other grounds.

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