Werner Enterprises has been ordered to pay more than $36 million to a man who said his application to drive for the truckload carrier was rejected because he was deaf.

The jury verdict was handed down Friday in Federal District Court for Nebraska in a lawsuit brought against truckload carrier Werner–which is based in Omaha–by the Equal Employment Opportunity Commission (EEOC). The penalty consists of $75,000 in compensatory damages and $36 million in punitive damages.

Victor Robinson, a deaf man, applied for a job at Werner in January 2016.  Robinson did not have prior over-the-road experience as a truck driver. However, according to the original complaint filed in September 2018, he had a commercial driver’s license obtained after training at Roadmaster, a Werner-owned driver training center. Robinson had obtained an exemption from the Federal Motor Carrier Safety Administration that exempted him from the agency’s rule on physical requirements to operate a motor carrier.

What is striking about the penalty amount is the comparison between its size and several other settlements the EEOC announced last week where it had reached agreement with a company to either settle a lawsuit or after an EEOC investigation. Between Wednesday and Friday alone, the EEOC announced five separate settlements of between about $32,000 and more than $182,000 in various actions against companies. That highest-valued payout was against a food company whose owner engaged in inappropriate sexual harassment against his female employees’ will.

In the original lawsuit filed by the EEOC, the agency said efforts to reach a “conciliation agreement” with Werner were unsuccessful, leading to the litigation that commenced September 28, 2018.

Werner was a defendant in the case along with Drivers Management LLC, which is a wholly owned subsidiary of Gra-Gar. Gra-Garm in turn, is 100% owned by Werner.

What the judge said the EEOC had to prove

In his charge to the jury, Judge John Gerrard said the EEOC could only recover from Werner if it had proved that Robinson “had the skill, experience, education, and other requirements for an over-the-road truck driver job and could do the job’s essential functions, either with or without a

reasonable accommodation.”

Judge Gerrard, toward the end of the trial, ruled in favor of the EEOC’s request for a Partial Motion for Judgement that had the effect of determining that the cause of Werner’s decision not to hire Robinson was solely his deafness. Judge Gerrard described the Werner defense as saying that “Robinson was unqualified because he was an inexperienced truck driver who could not engage in an asserted essential function of the over-the-road truck driver job, and no reasonable accommodation would have enabled him to safely do so.”

Werner had argued against the granting of a partial judgment that it was possible the jury could find in favor of a more complex rationale why Robinson was not hired. “Werner has not been fully heard on any issue during this jury trial because it has not yet introduced all its evidence,” the company said in its brief.

“Werner has hired individuals with disabilities and has provided accommodations to individuals in its placement driver program,” the company said in its brief. Separately, Werner said it has hired deaf drivers with at least six months of experience as an over the road driver, which Robinson did not have.

“Here, Werner’s decision was based on its inability to identify any accommodation that would enable Robinson to safely engage in two-way communications with his trainer while engaged in over the road training and Werner’s legitimate safety concerns about the potentially catastrophic results of distracted driving by a new and inexperienced commercial driver. Werner determined Robinson simply was not able to safely complete the placement driver program.”

Placement driver versus a generic truck driver

The issue of placement driver is at the core of Werner’s arguments. Any driver who applies for a job at Werner with less than six months’ experience is put into the training program to be a “placement driver.” 

But Werner criticizes both EEOC arguments and those of Judge Gerrard as essentially creating what the truckload carrier a “generic truck driver position,” which Werner argues Robinson would not have been hired for solely on the basis of his lack of experience, regardless of his deafness.

“Werner’s argument is focused on the ability to complete its training program, which is why ‘Placement Driver’ is the relevant position here,” Werner argues.

Judge Gerrard, in his partial judgment, does note that “the essential function at issue is the trainer-observed over-the-road component of the student driver program, now known as the placement driver program.”

Werner also argued that if a company tries to accommodate a worker with a disability as defined by the Americans with Disabilities Act–as the company said it did with Robinson–and then finds it can not make that accommodation, what is argued in the Robinson case by the EEOC would essentially negate any legal considerations of those efforts. The disability as the reason not to hire “is automatically established.” 

“This leap of logic is contrary to well-settled case law under the ADA, which requires a plaintiff to establish an adverse action was taken on the basis of a disability, and not merely for a reason that is a consequence of a disability,” Werner said. 

Ironically, Werner (NASDAQ: WERN) earlier this year won a case in the same federal court over its decision not to hire a deaf driver. In its prepared statement released after the verdict, Werner noted the similarity in the cases and the divergent verdicts reached in the two of them. 

Werner, in its statement, said caps on punitive and compensatory damages should have limited the payout to $300,000. It also said it is “evaluating its option relative to an appeal of this jury’s decision.”

“The company operates with the mantra that nothing we do is worth getting hurt or hurting others, whether that be its professional drivers, customers or the motoring public at large.” Werner said in the statement. “Werner prides itself on fostering an inclusive workplace where our associates are encouraged to bring their full selves to work, including our valued associates who may have a disability.”

The EEOC, in its statement, said Werner’s’ actions “hurt not only (Robinson), but the entire Deaf community,” quoting three attorneys on the agency’s trial team: Joshua Pierson, Meredith Berwick and Lauren Wilson. “As this verdict demonstrates, companies like Werner that deny reasonable accommodations to drivers with disabilities do so at their peril.”

More articles by John Kingston

Werner’s appeal of $100 million Texas verdict focuses on legal arguments

Sentencing in Louisiana staged truck accident case now a December doubleheader

A first for Werner: small group of workers votes to unionize