As part of its celebration of the 20^th anniversary of the ADA, the EEOC issued a report entitled "Twenty Years of ADA Enforcement, Twenty Significant Cases," sort of the top twenty ADA cases brought by the agency. Much can be gleaned from this ten page document and we may revisit it a few times.

First, jurors have awarded large punitive damage verdicts. Six jury verdicts are in the top twenty list. In EEOC v. CEC Entertainment, the jury awarded $13 million in punitive damages to an individual with "intellectual disabilities" who was fired from his janitor’s position at a restaurant. In EEOC v. Echostar, the jury awarded $8 million in punitive damages to a blind employee denied employment as a customer service representative. And in EEOC v. E.I. DuPont De Nemours & Co., the jury awarded $1 million to a discharged lab clerk with a spine and disc disease. In each case, the punitive damage awards were reduced to the ADA’s statutory damage caps.

Next observation: employers have been reluctant to litigate these cases. Fourteen of the top twenty cases were either resolved with a consent decree or settled for amounts that ranged from $78,000 to $6.2 million. So in 70% of these cases (admittedly, a list self-selected by the EEOC), employers preferred, for whatever reason, to pay money rather than present their cases to juries. Was it litigaphobia–a fear of litigation–that led to these resolutions? Or fear of the possibility of a lottery-size punitive damage award (see paragraph above)? Or something else?

What lessons can be learned from this top twenty analysis? They include that plaintiffs in ADA cases can be sympathetic and that jurors have meted out significant punishment to employers found to have discriminated against an individual with a disability. It reinforces the need for an employer to put itself in the best position to get a case dismissed prior to trial, especially in states with disability discrimination laws that do not cap punitive damages. An employer unable to have the case dismissed prior to trial must have a good story to present to the jury to refute the disability discrimination claim.

One last point about the top twenty list: the number one listed case is the "landmark" lawsuit alleging a national retailer had an "inflexible" leave limits policy which did not allow for reasonable accommodation. The consent decree involved a payment of $6.2 million, an amount which the EEOC described as a "the largest monetary recovery" in an ADA lawsuit. We wrote previously about the EEOC’s challenges to "inflexible" leave policies. (See Leave as a Reasonable Accommodation under the ADA)