A jury verdict reads differently depending on who loses it. When a federal jury in Virginia decided on Oct. 9 that the Society for Human Resource Management (SHRM) had failed to accommodate a job applicant with Type 1 diabetes, and set the bill at US$400,000, it was not ruling on just another employer. It was marking the teacher’s homework.
SHRM’s response arrived the next day, and as corporate statements go, it is a competent one. The organization says it extended a conditional offer to Fiona Torres knowing her diagnosis. It says it reviewed her medical documentation, brought in legal counsel and proposed alternatives: support for continuous glucose monitoring, insulin pump adjustments and flexible leave. It refused one thing, which by its account was a diabetes alert dog.
“SHRM said no to one specific accommodation,” the statement says. “We did not say no to Ms. Torres, her diagnosis, or her need for support.”
There is more in SHRM’s corner than the dollar figure suggests. The jury rejected the claim that SHRM pulled the offer because of Torres’s disability itself. It found she had not proven SHRM failed to engage in a timely, good-faith interactive process. It declined to award punitive damages under either federal or Virginia law. And according to SHRM, Torres’s own physician testified she had never prescribed an alert dog, and Torres routinely manages her diabetes without one during exercise, travel and work, relying on a continuous glucose monitor. That is the same tool SHRM offered to support.
So it would be easy to beat up on SHRM over this, and perhaps a little unfair. I’m going to do it anyway.
Start with the finding that matters. The jury concluded SHRM rescinded the job offer because of its need to accommodate Torres’s disability. An employer can decline a specific accommodation and offer alternatives. What it cannot do is decline the accommodation and then decline the employee. Whatever the merits of the dog, the outcome was that Torres did not get the job, and a jury decided the reason was the cost to SHRM of accommodating her.
“Accommodation is meant to be a dialogue, not a dictation,” SHRM says. That is true, and it is the kind of sentence you could find in any HR training module. But a dialogue in which one side holds the power to withdraw the job offer is a particular sort of conversation. The jury seems to have accepted that SHRM talked. It did not accept where the talking ended.
The statement also invokes an employer’s right to “establish reasonable operational boundaries.” It never says what those boundaries were. We are not told what an alert dog would have disrupted, cost or complicated in SHRM’s workplace. Perhaps there were good reasons. The statement does not offer any, which leaves a reader to compare the price of a dog under a desk with the price now attached to refusing one.
None of this would be worth a column if the defendant were a regional trucking firm. Plenty of employers misjudge accommodation requests, lose, pay and move on. Their mistakes become case law that someone else explains at a conference. (We cover the cases in-depth in both HR News Canada and HR Law Canada. But we leave the opining out.)
SHRM is usually the one doing the explaining. It is the association employers look to for guidance on precisely this kind of decision, through its research, its certifications and its events. When it hires, its process is not a private matter. Every choice it makes about a candidate is a demonstration, whether it intends one or not. Members are entitled to assume that if anyone knows how to navigate an applicant’s medical needs without ending up in front of a jury, it is the organization that teaches the subject.
That is not a fair standard. A national, indeed international, HR association is still an employer with budgets, managers and judgment calls, and its people will sometimes get things wrong like everyone else. But fairness is not the measure here. Authority is. An association that sets the benchmark for good practice gives up the right to be merely defensible. It has to be close to perfect, because its errors don’t stay its own.
They become an example, and the example teaches whatever the verdict says.
Which brings us to the final turn of SHRM’s statement. It warns that if the verdict becomes precedent for employers having to accept an employee’s exact preferred accommodation, the interactive process ceases to function. It says it will weigh appellate options to protect “the operational rights of HR departments and employers nationwide.”
That is a legitimate legal argument (albeit one for the U.S. courts, so we’ll watch from the sidelines.) An appeal may well narrow the ruling. But HR’s job is to protect the employer, and the best protection is usually the decision that never reaches a courtroom. Defending an employer’s right to refuse an accommodation is one thing. Holding up this refusal, which cost a job offer, US$400,000 and a week of unflattering headlines, as the model worth preserving is another. A jury of ordinary people looked at the case and concluded a workable route existed and was not taken.
SHRM may yet win on appeal. Even so, it will have spent its time and credibility arguing that it was reasonable, when its members expect it to be exemplary.
Most employers who lose a case like this learn a lesson. SHRM has become one.
