Suits In The WorkPlace

A federal district court recently ruled that a plaintiff who won a discrimination claim was entitled to back pay, even though he admittedly failed to mitigate his damages (Hudson v. Chertoff, No. 05 060985CV, 2007 WL 478826 (S.D. Fla. Feb. 12, 2007)). 

Ulysses Hudson was fired from his job as a research analyst at the Department of Homeland Security (“DHS”) in February 2005.  He sued, claiming that his job reassignment and ultimate termination was in retaliation for an earlier lawsuit, and that the DHS failed to reasonably accommodate his disability.  A jury returned a verdict in favor of Hudson in November 2006 and recommended an award of $220,000 in back pay, $780,000 in front pay, and $1.5 million in compensatory damages.  

The DHS filed post-trial motions seeking, among other things, to disallow or reduce the recommended back pay and front pay awards, arguing that Hudson did not diligently seek “substantially equivalent employment” after being fired and, thus, did not fulfill his obligation under Title VII to mitigate his damages.  Hudson conceded at trial that he did not seek employment after being “officially terminated” from the DHS in February 2005. 

While the court agreed that he failed to mitigate his damages after being fired, it still found that Hudson was entitled to back pay.  The court noted that a successful Title VII claimant is presumptively entitled to back pay and that, according to the U.S. Supreme Court in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975), “[b]ack pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.  The court also cited a previous district court decision, Szedlock v. Tenet, 139 F. Supp. 2d 725, 733 (2001), which it found to be factually similar.  The Szedlock court had found that the plaintiff was entitled to back pay from the date she sought medical disability retirement because her employer had failed to reasonably accommodate her disability: “In a real sense, plaintiff’s claim for lost wages is the result of discrimination, and she is thus entitled to some equitable relief in the form of back pay or front pay to place her in the position she would have enjoyed absent discrimination.” 

Similarly, the Hudson court noted that “[b]ut for the [DHS’s] unlawful conduct in its failure to provide a reasonable accommodation … [Hudson] would have received his full salary and benefits for the period of time he was on leave.”  Because the DHS’s retaliation and refusal to accommodate resulted directly in Hudson’s leave without pay, the court held that he was entitled to his full salary for the duration of the leave period and should be awarded back pay from February 2005 through the date of the judgment. 

This decision is a bit scary.  Plaintiffs have an obligation to mitigate their damages to the extent it is reasonable.  Not lifing a finger to find a job when you are capable of doing so falls a bit short of that mitigation requirement.  Moreover, the logic of the Court escapes me.  The Court’s reasoning seems to be that if the defendant causes the wage loss, then back pay should be awarded.  However, if that were universally true, then every discrimination plaintiff who suceeded on the liability phase would also be entitled to back pay, without regard to mitigation efforts, and clearly that’s not the law.  This decision gives plaintiffs no incentive whatsoever to seek a job while their case is pending, and improperly lays all the burden on the employer, even when the plaintiff could have taken reasonable steps to reduce their damages. 

Unfortunately, there’s not much employers can do proactively to avoid this risk.  If a court is going to ignore the mitigation requirement, it just is.  Best bet for employers is not to get popped in the first place, which requires the same old blocking and tackling we regularly espouse here:  consistency in decisionmaking (through HR, legal counsel, or both), and good documentation.

 A man sued IBM earlier this week for wrongful termination when he was fired for visiting adult chat rooms at work.  The employee seeks $5 million, asserting that his termination amounted to both disability and age discrimination.  The disability, apparently, was the result of traumatic stress from seeing a friend killed in Vietnam (38 years ago.)  James Pacenza, 58, claimed that his visits to the adult chat rooms (a few months ago) were a form of treatment for the stress, and that he "was tempting [him]self to perhaps become involved in some titillating conversation," according to his complaint.  I am not making this up.

What’s interesting about this case is the nature of his alleged disability.  Pacenza asserts that he is "a sex addict, and with the development of the Internet, an Internet addict." But remember that he also claims to suffer from post-traumatic stress resulting from his war service.

IBM, not surprisingly, is seeking summary judgment on several grounds, the most obvious of which is that sexual disorders are specifically excluded from protection under the ADA.  In fact, Section 12211 of the act specifically excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from the definition of disability. 

Notice, however, that this section doesn’t say anything about being “an Internet addict.”  That’s a little different from sexual disorders.  In fact, last October a Stanford University study reported on the concept of Internet addiction.  The study reported that:

Nearly 14% of respondents said they found it difficult to stay away from the internet for several days and 12% admitted that they often remain online longer than expected. More than 8% of those surveyed said they hid internet use from family, friends and employers, and the same percentage confessed to going online to flee from real-world problems. Approximately 6% also said their personal relationships had suffered as a result of excessive internet usage.

That led the lead author of the study to compare Internet use with alcoholism, since it involved hiding the behavior from others going online to cure foul moods.  "In a sense, they're using the internet to self-medicate," he said.  Sound familiar?

So, while at first glance Mr. Pacenza’s desperate need to visit an adult chat room while on break might seem to fall squarely within that ADA exclusion of sexual disorders, IBM may be in for more of a fight than it thinks. 

More importantly, given the prominence of internet use in the workplace, this decision, if adverse to IBM, could have far reaching implications for employers.