Multiple Sclerosis Disability Discrimination Verdict Overturned

It is unlawful to terminate an employee because of a disability. The specific New York law prohibiting such discrimination is Executive Law § 296(1)(a) which provides in part:

It shall be an unlawful discriminatory practice for an employer * * * because of the disability * * * of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

It is not easy to recover on an action commenced under Executive Law § 296(1)(a) as is illustrated by the First Department’s decision last week in Jordan v Bates Adv. Holdings, Inc., 2007 NY Slip Op 10465. In order to recover in a disability lawsuit an employee has an initial burden of establishing a prima facie case of discrimination. The employer then can overcome the prima facie case by showing a legitimate reason for terminating the employee. However, the employee must then demonstrate that the employer’s reasons for termination were pretextual, and the ultimate issue of discrimination always remains with the employee.

In the Jordan case, the plaintiff had multiple sclerosis who used a cane. She was hired as a senior vice president by a small advertising agency. Approximately six months later the advertising agency merged with another advertising company. Less than a year after the merger, the plaintiff was terminated. When asked about her use of the cane, the plaintiff had lied and told her bosses that she had a skiing injury. Company officials then repeatedly questioned her about the use of the cane and she did not reveal the truth because she believed that if she did reveal her disability she would be fired. In one instance at a presentation one executive knocked over the plaintiff’s cane which was leaning on a chair and sarcastically remarked, “we’ve got a cripple.”

After the merger of the two companies, the plaintiff was told that the company that it could not afford everyone, and she had been relieved of a major account. Later she was terminated.

A jury awarded the plaintiff $2.5 million dollars plus attorney’s fees. However, the First Department overturned the jury’s verdict based on the employer’s reasons for termination. The employer’s executives testified consistently that that plaintiff’s termination was financially motivated, and that the merger and the loss of major clients had precipitated layoffs of a large portion of the workforce, including executives more highly placed than plaintiff. The employer’s former chief financial officer also testified that as a result of the merger, approximately half of the staff was terminated.

Because the plaintiff introduced no evidence to contradict the evidence that her termination was financially motivated, the Court found that jury’s verdict was against the weight of the evidence and vacated the award.

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