Circuit upholds disability discrimination verdict

It's tough to appeal from a jury award. Wal-Mart learned that the hard way in the context of a disability discrimination case, where the trial court ordered that Wal-Mart pay out $600,000 in compensatory damages after the jury found that the company improperly transferred a disabled employee from the pharmacy to the parking lot and subjected him to a hostile work environment.

The case is Brady v. Wal-Mart Stores, decided on July 2. The plaintiff has cerebral palsy. He got the job at Wal-Mart working in the pharmacy but his manager immediately disliked him, playing games with his schedule, expressing unreasonable impatience with his job performance and transferring him to work out in the parking lot, cleaning up garbage and pushing shopping carts. Here's what the Court of Appeals (Calabresi, Kearse and Katzmann) did:

1. It affirmed that plaintiff was disabled and, more significantly, that management perceived him as disabled. The perception claim is available under the Americans with Disabilities Act, but it rarely surfaces in the Court of Appeals, which held that Brady's superior "testified that she regarded Brady to be slow and that she “knew there was something wrong” with him [and] Brady’s father testified that the store manager told him that Chin said that Brady “wasn’t fit for the job.”

2. The parking lot transfer was an "adverse employment action" under the ADA even though Brady did not lose any salary. Since the job "resulted in a 'less distinguished title' and 'significantly diminished material responsibilities,'” the transfer is worth suing over, despite the short time period Brady spent in the parking lot. While Brady was then brought back into the building, it was not the pharmacy but the food section, which the jury could have found was worse than the pharmacy.

3. While "'[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed,'” that's not always the case. The Second Circuit thus sets out a wrinkle on that rule, holding that "that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled." Since Brady's disability was obvious to all (Cerebral Palsy), management had a duty to accommodate it. Since Wal-Mart failed to engage Brady in any dialogue on ways to accommodate his disability, the jury properly ruled in Brady's favor on the accommodation claim.