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An Hispanic Subway franchise owner in Dallas was recently ordered by a jury to pay $166,500 to a disabled employee in a discrimination suit. The EEOC harassment suit charged that BobRich Enterprises, Inc. forced a female regional manager with a hearing impairment to resign.

This case is unusual because the owner, Robert Suarez,  and the human resources person were directly involved in insulting the employee. Tammy Gitsham was subjected to taunts from both the owner and the human resources manager/trainer. The pair repeatedly mocked her in private and in front of other employees, with remarks like, “Can you hear me now?” “Read my lips” and “You got your ears on?”

Many companies fight discrimination by hourly employees every day, but few have owners who openly insult disabled employees. Ironically, Mr. Suarez is a member of a minority frequently discriminated against in the workplace.

Despite clear evidence uncovered during an EEOC investigation, the Subway franchisee refused to settle the suit out of court. Instead, a jury of five women and two men awarded the former area supervisor $66,500 for lost wages and emotional harm. The jury also awarded an additional $100,000 in punitive damages – a penalty that Subway likely could have avoided by settling the case. The case was tried in the U.S. District Court for Northern Texas, Dallas Division, with the honorable Barbara M.G. Lynn presiding.

Under the Americans with Disabilities Act of 1990,  or ADA, employers cannot discriminate against disabled employees in hiring, promotions, pay or termination. The court ruled that the repeated taunts, teasing and name-calling created a “hostile work environment” for the disabled employee. Ms. Gitsham is hearing-impaired and wears hearing aids, which  made her the target for derision at the company.

The ADA was enacted on July 26, 1990 and prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

Under the ADA, employers must make reasonable accommodations for employees with a disability. Reasonable accommodations might include providing a phone with a volume control for a hearing impaired employee, or a ramp for a wheelchair employee. In this case, reasonable accommodations were not the issue – childish insults were.

Eventually the hostile environment drove Ms. Gitsham to quit her job as an area manager with Subway. The court ruled that she quit because of the hostile working environment, which would have forced “any reasonable person” with a similar disability to resign.

 “I am very happy with the judgment,” Ms. Gitsham said, commenting on the verdict. “It is important for people to realize that they don’t have to put up with this type of mean-spirited treatment from business owners. I feel that I can now move on with my life.”

BobRich Enterprises, Inc. has owned up to 20 Subway stores in the Dallas metropolitain area. Ms. Gitsham worked as an area manager for  the franchisee, overseeing management at five to ten stores during her 18 months with the company.

Robert Canino, an attorney with the EEOC’s Dallas Region said, “As our nation observes the 17th anniversary of the landmark Americans with Disabilities Act, this case should remind employers of their legal obligation to promote discrimination-free workplaces for people with disabilities. Humiliating an excellent and loyal employee because of a disability is more than just bad behavior, it is bad business. This company should have been as focused on creating a healthy work environment as it was on making a healthy sandwich.”

“All individuals deserve the freedom to compete and advance in the workplace on a level playing field — including individuals with disabilities.” According to EEOC Supervisory Trial Attorney Suzanne M. Anderson. “Employers should proactively prevent disability discrimination by putting policies and procedures in place to ensure that employees and managers clearly understand and abide by the letter and spirit of the law.”

Disability discrimination is more common than most people realize. Since 1992, the EEOC has received more than 235,000 complaints alleging disability discrimination. The EEOC has filed more than 700 lawsuits and obtained just over $665 million for disabled employees.

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