March 2013

By: James B. Sherman, Esq. and Phoebe A. Taurick, Esq.

A recent decision of the United States Court of Appeals for the Eighth Circuit upheld a jury’s verdict that awarded $180,000.00 to a plaintiff who sued her employer for sex and disability discrimination. The jury’s verdict in Hudson v. United Systems of Arkansas, Inc., included $100,000.00 for “mental anguish” suffered by the plaintiff. The appellate court determined that although the award for mental anguish was large it was not out of line with awards in other cases. The court also cited to the trial record of witnesses who testified that the plaintiff’s boss referred to her and other women on various occasions as “little girl.” This case stands as a poignant lesson to employers of just how costly it can be when managers, supervisors, business owners and the like demonstrate insensitivity toward an employee.

The plaintiff in this case was an executive level employee whose disability required she miss work 2 to 3 days every few months to receive treatment. However, on the occasion that led to this litigation the plaintiff missed twice as many days due to medical complications. When she returned to work her boss – the owner and president of the company – confronted her, asking why she had not called him on his cell phone to personally inform him of her extended absence. The boss claimed this was company policy even though it was news to the plaintiff and she had not done this for any of her previous absences. An argument ensued and when she refused her boss’ order to “sit down, little girl,” he told her to “get out!” In a meeting a few days later the boss told the plaintiff that she was not able to perform her regular duties due to her “health issues” and offered her a different position with fewer hours and lower pay. The plaintiff declined the offer and instead sued for gender and disability discrimination.

A jury found in favor of the plaintiff on both her sex and disability discrimination claims and awarded damages totaling $180,000.00. The company appealed, claiming among other things that the jury’s award of $100,000.00 for mental anguish, was excessive. The appellate court found that the evidence of the boss calling plaintiff (as well as other female employees) “little girl” supported the jury’s verdict on gender discrimination. Although the appellate court did not decide the issue, there is little doubt that it would have found that comments about the plaintiff’s inability to do her job due to “health issues” without first exploring reasonable accommodations, would have supported the jury’s verdict on disability discrimination.

Finally, the court noted that in previous cases it had upheld jury awards for mental anguish of $200,000.00 for a sexual harassment claim; $50,000.00, $100,000.00, and $125,000.00 for discrimination claims under Title VII of the Civil Rights Act of 1964; and $165,000.00 for a disability discrimination claim under the Americans with Disabilities Act. The court held that the jury’s award of $100,000.00 for mental anguish in this particular case was not excessive in light of these other decisions.

No doubt the jury as well as the appellate court were not amused by a male boss calling women in the workplace, “little girl.” Similarly, removing a disabled employee from his or her job without exploring accommodations and while citing the employee’s “health issues,” is another unwise thing for any boss to do if they wish to stay out of court or avoid six-figure jury awards. Workplace events that call for reasonable accommodations are delicate and potentially costly situations. Employers who demonstrate insensitivity in these circumstances risk learning a costly lesson as the employer in this case can attest.