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Reduction in employee duties without change in title or pay found to be an adverse action


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kwatlington

By Kyle Watlington

In 2015, the employee filed a complaint against his former employer, a horse racing track, alleging disability discrimination, creation of a hostile work environment, constructive discharge, retaliation, and intentional infliction of emotional distress. The court reviewed the complaint after the defendant moved to have the case dismissed and found that there was sufficient evidence for the case to go forward on the disability discrimination claim but dismissed all other claims that were raised.

For 25 years, the employee was afflicted with Meniere’s disease. Due to the disease, the employee has suffered hearing loss and is required to wear visible hearing aids in both ears. Although the employee does have difficulty hearing, he is able to compensate by reading lips. The employee began working at the track, a company that offers a combination of live horse racing, video lottery terminals, and other nightlife options, in 2013 as an Accounting Supervisor. The employee did not disclose the fact that he had Meniere’s disease to anyone at the track. 

The finance director at the track had noticed that the employee sometimes had trouble hearing and according to the employee at one meeting she yelled to him that “I can never tell if you are hearing me.” The employee was offended by this comment. Around the same time this comment was made, the employee was passed over to go to a specialized training session in Las Vegas when the track chose to send an accounting clerk instead of the employee. Based on this action and other changes in job duties, the employee claimed that the finance director had effectively demoted him and replaced him with the Accounting Clerk. The accounting clerk testified and verified this claim stating that she had been informed that she would become the primary supervisor of the entire accounting team. Furthermore, the finance director’s handwritten notes revealed that the employee was to be transitioned out of a supervisor role and was to focus solely on invoices. As a result of this alleged demotion, the employee resigned from the track and filed lawsuit. 

Upon review of the claim, the court found that the employee was a disabled person within the meaning of the Americans with Disabilities Act, that he was otherwise qualified to perform the essential functions of the position with or without reasonable accommodations, and that the employer knew or had reason to know of his disability. In order to bring a claim for disability discrimination, the employee also was required to show that he suffered an adverse employment action due to his disability. The employer contested this point. 

The court noted that it was a “close call” but nonetheless found that there was enough evidence for the disability discrimination claim to go forward on this point. Although the employee’s title and pay did not change, the court found it important that the finance director’s handwritten notes indicated he was being demoted and that his co-worker had been told the same. 

The court however ruled that the employee could not go forward with his claims of constructive discharge based on disability discrimination, because he did not show that the conditions of his employment had become unbearable or that the company had deliberately caused the conditions with the intention of forcing him to resign. The fact that employee’s salary was not reduced was critical to this finding. 

The ruling indicates that courts may consider a change in duties related to a disability to be an adverse action by the employer even if there is no change in title or compensation. However, there must be some evidence of this transition and how it relates to the disability. Here, the court found that there was sufficient evidence for this claim to go to a jury and let the jury decide whether the accounting supervisor would have been demoted in the absence of the disability.

 

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