ACCOMMODATING ALMOST EVERY TIME IS NOT GOOD ENOUGH

Not long ago the Dept. of Defense tried to defend itself against an allegation that it had failed to provide a deaf employee a reasonable accommodation by pointing out that it had done so 11 out of 15 times the employee asked during the period in question. But complying with the law 73% of the time is not a defense, and the EEOC told DOD to figure out how much of a check to give the employee as compensation for the harm done.

DOD’s defense was that it did not owe a disabled employee compensatory damages (of up to $300,000) if it could be demonstrate that it made a “good faith effort” to accommodate him/her. EEOC acknowledge the times it did provide an interpreter, the meetings it cancelled because an interpreter was not available, and even the one meeting where the interpreter failed to show because of traffic. But that still left DOD without an adequate explanation as to why it had failed four times to provide an interpreter or any reasonable accommodation. One supervisor did respond that he was too busy with other tasks to get to it and followed that up by telling the EEO investigator that it appeared to employee’s request “fell through the cracks.” EEOC made the point that if it had only consulted with the employee to attempt to identify an alternative reasonable accommodation to an interpreter, it might have had an adequate defense.

In the end DOD was instructed to apply the instructions of “EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act” to determine how much money it owed the employee for the harm done. This case was titled Tahir Rathore v. Leon E. Panetta, DOD, EEOC No. 0120114330 (February 14, 2013). If prior decisions are any indication, then Heffley v. John, Potter, EEOC No. 07A40138 (2005) suggests that the DOD employee should be getting something in the neighborhood of $35,000.