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.
The BNSF Railway recently paid $800,000 to settle an age discrimination lawsuit brought by the EEOC. The EEOC alleged that BNSF denied older employees certain benefits brought under an exit incentive plan.
According to the EEOC, 137 current and former employees were denied benefits under an exit incentive program, because they were already eligible to retire. The Burlington, Northern and Santa Fe Railroad, or BNSF, offered exit incentives to clerical employees in an effort to reduce staff. However, it illegally failed to offer those same incentives to older employees who became eligible to retire at age 60.
BNSF Railway Company operates one of the largest North American rail networks, with about 32,000 route miles in 28 states and two Canadian provinces.
The exit offer included employees in Kansas City, Fort Worth, and Alliance, Nebraska. However, it excluded any employee old enough to qualify for retirement. Employees may retire from GNSF when they reach the age of 60 with 30 years of service with the company. The employees were eligible for a pension from the federal Railroad Retirement plan.
Under the exit incentive plan, employees who stopped work early received $2,500 per month for three years, or a lump sum of $90,000. However, no employee over the age of 60 was offered the exit incentive.
When the clerical jobs were abolished, many of the workers were “bumped” into lower-paying jobs and retired as a result. The EEOC identified several of the 102 employees who were involved.
Erma Gossage was 63 when she was denied the opportunity to participate in the exit incentive plan offered to younger workers. Because the three years of exit incentive pay qualified as employment, Gossage would have qualified for a higher pension with the plan.
Ellen Foste was a 72-year-old clerical employee who was offered a choice. She could retire, or take a job driving a van at night. Foste had 27 years of employment with the BNSF. If she had been offered the exit incentive, she would have qualified for a full pension under the federal Railroad Retirement plan.
The railroad argued that the exit incentives were designed to motivate employees who were not eligible for a federal Railroad Retirement plan pension to retire early. The amount offered by the company was equivalent to the payments under the Railroad Retirement plan. BNSF also argued that more than 100 people over 60 who were not eligible for retirement were offered exit incentives.
Barbara Seely, Attorney in the St. Louis EEOC District Office, and lead counsel on the case, said, “Under Railroad Retirement Board rules, retirement eligibility is directly tied to age. Denying employees benefits because they are eligible to retire is age discrimination. Employees who are old enough to retire don’t necessarily want to stop working; they are entitled to receive the same benefits as younger workers.”
Donald Munro, lead counsel for BNSF, responded by stating, “BNSF is committed to a discrimination-free workplace and has always maintained that its voluntary early retirement programs do not discriminate in any way on the basis of age. The railroad decided to settle to avoid the substantial cost of further litigation, but in doing so insisted on an express statement that there is no admission of liability.”
BNSF denies any wrongdoing in the matter, and insists that it is simply settling the claim in an effort to avoid a lengthy, expensive lawsuit with the EEOC – the U.S. Equal Employment Opportunity Commission.
This finding underscores the fact that early retirement or exit incentives must be uniformly offered to all employees, regardless of age. Since only older employees are qualified for retirement, by definition, any policy that excludes those qualified for retirement is discrimination under the law.