Recent Case Reminds Employers of the Need to Make “Reasonable” Medical Judgments in ADA Cases.
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Under the Americans with Disabilities Act, an employer is not required to accommodate a disabled employee if it can demonstrate that the employee is unable to perform basic job functions or makes a “reasonable medical judgment” that the employee poses a safety threat. A recent Fifth Circuit court of appeals decision styled EEOC v. E.I. DuPont de Nemours highlights the dangers that even sophisticated employers face when they rely on the opinions of a company physician in the face of persuasive contrary medical evidence. The $1,000,000.00 punitive damages award in the case also serves as a grim reminder that inflammatory remarks made about an employee’s perceived disability can create tremendous liability for employers.

The employee in the DuPont case worked as a secretary in a chemical plant. After she began to have difficulty walking, DuPont required her to undergo a “functional capacity evaluation” given by company physicians designed to determine whether she could evacuate the plant in an emergency, which it claimed was one of the essential functions of her job. Based on the evaluation, DuPont determined that she could not evacuate during an emergency and terminated her employment. In so doing, it disregarded the fact that the employee had subsequently demonstrated that she could walk the evacuation route without assistance.

The EEOC brought suit for disability discrimination and received a favorable jury verdict, including a $1,000.000.00 award of punitive damages (later reduced to $300,000.00). On appeal, DuPont argued that the verdict should be reversed because its physicians’ medical evaluation had determined that the employee could not perform basic functions of her job and that she posed a “direct threat” due to her inability to evacuate the plant during an emergency. Although the court of appeals agreed that “safety measures are extremely important in such workplaces,” it found that the EEOC had presented sufficient evidence that the employer’s medical evaluation had been wrong – specifically, the employee had demonstrated that she could in fact evacuate the plant by herself. Thus, she could perform the basic functions of her job and did not pose a safety threat to herself or others. This is the second time in a little over one year in which the Fifth Circuit court of appeals has rejected a company’s reliance on the opinion of a company doctor in the face of persuasive medical evidence to the contrary. (The other case was Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468 (5th Cir. 2006), involving a diabetic employee.)

The court of appeals also upheld the jury’s punitive damages award, even though the jury had not awarded any damages for emotional distress or mental anguish. It did so largely because of a comment by a supervisor that “he no longer wanted to see [the employee’s] ‘crippled crooked self, going down the hall hugging the walls.’”


The Bottom Line for Employers
When an employer determines that an employee cannot perform basic job functions or poses a safety threat, its medical evidence must be sufficiently persuasive to overcome any contrary evidence created by the employee or her medical experts. In other words, it may not be enough simply to rely on an opinion from a company physician, EAP counselor, or medical treatise. Employers also should not downplay the risk created by inflammatory remarks made about employees, which, as demonstrated by this case, can lead to substantial jury verdicts.

The case is EEOC v. E.I. DuPont de Nemours & Co., Case No. 05-30712 (March 1, 2007).
 

*  Muskat, Martinez & Mahony, LLP represents employers in labor and employment law matters.  For more information, visit our website at www.m3law.com, or contact any of our partners:
 
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com