Over the last couple of months, we have been talking about what qualifies as a disability under the Americans with Disabilities Act and what to do when an employee with a disability requests an accommodation in the workplace.  But what happens when an employer does not heed this advice?  What happens when an employer fails to provide a reasonable accommodation for the employee’s disability?  

The Process

If an employee believes that she has been discriminated against based on a disability, then she is required to file a Charge of Discrimination with the EEOC within 180 days from the day the discrimination took place.  Once the employee files with the EEOC, the EEOC will investigate, request a response from the employer, sometimes facilitate a mediation between the parties to try and settle the matter, and, if they cannot settle, the EEOC will issue a determination on whether it believes the charge has merit.  No matter which way it decides, it will likely issue a right-to-sue letter to the employee.  

Once the employee receives her right-to-sue letter, the employee has 90 days to file a lawsuit in federal court.  

The Damages

A successful employee may receive front pay and backpay, compensatory damages, punitive damages, and, in the right case, attorney’s fees and costs.  Front pay and backpay are the damages suffered for the actual compensation that the employee lost due to the adverse employment action, and compensatory damages include non-economic damages such as emotional distress.  Punitive damages are available when the discrimination involved is malicious and intentional, which are meant to punish the employer.

There are limits on the amount of compensatory and punitive damages an employee can recover.  These limits vary depending on the size of the employer:

• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.

The Example

Marlo Spaeth, a former Walmart associate of 16 years, was terminated by Walmart for “chronic absenteeism.”  Ms. Spathe has Down Syndrome (a disability under the Americans with Disabilities Act), and throughout her tenure with Walmart, she received glowing performance evaluations and several pay increases.  Ms. Spaeth thrived with her regular, 16-year routine.  

Ms. Spaeth worked from 12:00 p.m. to 4:00 p.m.  In 2014, however, Walmart changed her scheduled shift to 1:00 p.m. to 5:30 p.m.  Ms. Spaeth regularly asked management to change her shift back to what she was accustomed, but management refused.  Ms. Spaeth’s legal guardian and sister explained that Ms. Spaeth was afraid that she would miss the bus and miss dinner.  Ms. Spaeth felt sick and became increasingly upset at her new schedule.  Her disability made it so she needed her routine to function normally.  After Ms. Spaeth had several absences and tardiness complaints, Walmart eventually terminated her.  

Seven years later, on July 15, 2021, a jury in the United States District for the Eastern District of Wisconsin, found that Walmart had violated the ADA and awarded Ms. Spaeth $125 million in punitive damages and $150,000 in compensatory damages.^[1]  The jury, which deliberated for three hours after a four-day trial, found that Walmart had failed to provide Ms. Spaeth with a reasonable accommodation and that it would not have posed an undue hardship to the company to change her schedule back.

^[1] Please note that this jury award will likely be reduced to fall within the legal limits as outlined above.