Virginia Hoover worked as a radiology technologist for a Dignity Health hospital for 24 years. In December 2012, her arm was injured while she was preparing for a CT scan. The injury resulted in medical restrictions, including the prohibition of lifting more than 15 pounds. She also had to go on a lengthy leave of absence to get treatments and to heal.
When she was ready to return to work, the employer fired her purportedly because she could not do her job due to her lifting restrictions. She sued the employer claiming disability discrimination and wrongful termination. She argued that the employer failed to make the reasonable accommodation that would allow her to return to work.
California law prohibits discrimination based on disability or medical condition. California law defines disability (whether mental or physical) as any disease, disorder, cosmetic disfigurement, anatomical loss, emotional or mental illness, or specific learning disabilities, which limits a major life activity. Working at a job is considered a major life activity.
The employer has a duty to provide reasonable accommodation to employees to enable them to work despite their disability. The law and the regulations clearly contemplate not only that employers remove obstacles that are in the way of the progress of the disabled, but that they actively re-structure their way of doing business in order to accommodate the needs of their disabled employees.
Depending on the employee's specific restrictions and the employer's circumstances, the following are examples of reasonable accommodations: making facilities accessible to and usable by disabled individuals; job restructuring; offering part-time or modified work schedules; reassigning to a vacant position; or acquiring or modifying equipment or devices for use by the disabled employee.
The employer also has the duty to find and offer suitable jobs for the employee. Simply telling the disabled employee to check available job postings in the company is not enough. The employer must in good faith determine whether a disabled employee can be transferred or reassigned to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant.
Virginia Hoover's case is similar to a case our law firm handled for an employee who was injured at work and deemed “17% permanently disabled” by the Worker's Compensation judge. That employee, Lara May (not her real name to protect confidentiality), was released back to work by her doctors. However, when she tried to return to work, the employer responded by terminating her.
The employer argued that Lara was terminated because of her 17% permanent disability. However, there was no finding that Lara was not able to return to work. There was also no finding that Lara was a Qualified Injured Worker who needed to be retrained for another position. In other words, the employer fired Lara without inquiring whether her 17% permanent disability allowed her to perform the essential duties of her job.
In comparing both cases, Lara's employer looked at Lara's 17% permanent disability and Virginia's employers looked at Virginia's 15-pound lifting restrictions, as disqualifying them from work, without inquiring whether their current conditions would nevertheless allow them to perform the essential duties of their jobs. If the employees can still perform the essential duties of their jobs, then the employer must provide reasonable accommodation and allow them to return to work.
Lara's employer agreed to settle the case before trial and paid Lara a significant amount of damages. Virginia's employers fought her claims aggressively all the way to trial. After a 20-day trial, the jury returned a verdict in favor of Virginia, awarding her $1.03 million in damages. The judge also ordered the employer to pay $957,510 in attorneys' fees to Virginia's lawyers.
