Target Pays $160,000 Settlement for Failing to Accommodate
Target Corp. has agreed to pay $160,000 to settle federal allegations that it discriminated against an employee with cerebral palsy. The case was brought by the U.S. Equal Employment Opportunity Commission, which alleged that Target had cut the hours of Jeremy Schott, an employee of an Orange County, California Target, and that Target had failed to make reasonable accommodations for Schott's disability.
According to court records, Schott was originally hired int 2002 at a part-time stocker and later worked as a cart attendant. Schott's cerebral palsy caused a seizure disorder and some cognitive difficulties, but it was alleged that he could perform all of his job duties with the help of a coach.
Schott performed his job well, and even received an award for his work performance. However, in 2004, after he took a medical leave following a seizure, Target reduced his hours to as little as eight hours per week. The EEOC also alleged that the company failed to ensure Schott's parents or job coach were present during performance reviews and other work meetings. Perhaps most damning of all, the EEOC asserted that Target had failed to engage in any meaningful discussions with Schott regarding possible accommodations.
Under the settlement, Target agreed to pay Schott $5,000 in lost wages and $155,000 in compensation for emotional pain and suffering.
Lesson for all businesses: Employers sometimes attempt to justify termination of a disabled employee without any meaningful accommodation discussion by arguing that the terminated employee never requested it. United Airlines, the airline that breaks guitars, made such an argument. As United Airlines learned, that argument will not fly with California courts.
The Second District Court of Appeals held that the law does not require an employee to somehow "invoke" the protections of the law; they are already there. If the employer knows or should have known that the disability existed, it is the employer's duty to open the dialog for reasonable accommodation.
Sometimes an employee will deny being disabled, until he is terminated for poor job performance and then claims it was disability discrimination. In that case, an employer might find some protection. The court ruled that an employer has no duty to accommodate an employee who denies having a disability. Prillman v. United Air Lines, Inc. (1997).
If Someone is Offering a Walk-Away, Listen
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory today in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie I just saw.
The movie was Taken, which I thought was very good. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnaped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life, or at the very least his finances, in a bad direction. I am less of an advocate and more of a care giver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking that since he had hidden his identity and lived across the country we would never find or pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, and to pay my client over $200,000. I suspect, if he had it to do over again, he'd take the walk-away.
Lesson for all businesses: Pick your battles. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in today’s case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them, know when to walk away and know when to run.”
