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 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 CDL obtained after training at Roadmaster, a Werner-owned driver training center. Robinson had obtained an exemption from the Federal Motor Carrier Safety Administration 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 in which 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 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 Sept. 28, 2018.
Werner was a defendant in the case along with Drivers Management LLC, 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.”
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 Gerrard as essentially creating what the truckload carrier calls 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.
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 cannot 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.
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.”
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Charles
I had to get hearing aids to pass my physical. I could hear horns,sirens,trains and other things but couldn’t pass. Now I have passed my hearing test ,
Charles
I lost my CDL because I couldn’t pass the physical because I lost the hearing in my left ear.I have hearing aids and have since passed my hearing test.
DD. Gearjammer
If he’s deaf he has no business behind the wheel. He’s a liability and a danger on the road .Not being able to hear sirens, train horns, abnormal noises that the truck can make signifying a potential problem. Has no business behind the wheel
Audrey
You should have to have certain physical requirements to drive a rig. If you can’t hear a siren, train horn, car horn, truck horn, or any other emergency vehicle, then how can you properly drive a truck down the road. This is a ridiculous amount of money. Look, I’m sorry he’s deaf, but requirements are requirements to keep the public safe. Oh, I didn’t hear the horn from the car blowing, with 3 kids and 2 adults in it, while misjudging and going back into the right lane. Had he heard the horn at night, he might have swerved back in his lane. Now the family is dead. So many scenarios….I would appeal that ruling if I was Werner. The guy can do other jobs…doesn’t have to be truck driving.
Wesley Bush
I would die to be a dishwasher in the ’80’s…
David Cothern
Jesus Christ the next thing you know they’ll be sued for not hiring a blind driver that company already is notorious for having some of the worst drivers on the road a deaf individual is just what we need going over a pair of railroad tracks and not looking like normal.
Tom McDermott
I have been in the business for 50 years. 40 of them as the company owner. This is just one more classic example of why the industry is in the shape that it is in. The people that make the rule, and the people who make these awards don’t realize that this is why the industry is in such a bad place. It effects EVERYTHING AND EVERYONE! You can’t wear headphones while driving, but you can be deaf. Would you like to own this business?
Ronald Lee Kuehne
It has been way too much deregulation to the point that there is a point at which there is no money enough to pay drivers. Carriers have preached in my lifetime to cut costs, do not burn so much fuel, do not pay cash for lumpers or tolls (That comes out of your pay) etc. so What was left after taxes for a few miles each week did not support the necessary things in life alone, much less children, homestead, wife and bills or retirement.
In the 70’s Deaf People like myself gained the right to drive and other small freedoms. My family then living violently expressed their shock that I graduated and passed my Class A License back then. How dare I reach for something better than being a nice dishwasher in life. In the late 80’s Deregulation has taken hold and everyone is all about not paying very much of anything for anything routine in the Industry. No pensions either. My parents preached pensions after a lifetime of work with the Gas Company or in Government or a nice LTL with the “Big CF Outfit” in town. That company and freighting failed in some years after that time period.
You are told to pick up this load of something in Town A, go to town B next week monday and deliver this load and call when empty for the next load. Thats all theres to it. How you did it was up to you and your Boss better not hear about damage, costs, tickets, inspections in particular and tolls or lumpers etc. For all intents and purposes you, the driver was responsible for everything as long you got to Town B with a load thats not damaged next week at sunrise and called when empty. All is well.
Fast forward to today. Trucking has become a gilded cage of enforcement, extreme micromanagement and drivers dont have any say in anything except one of two things. Either “Im sick” or “I quit” and you had 50 new drivers ready for your tractor at any time weekly in orientation and months in so called training with a team trainer. again cutting costs. its easier to pay a licensed CDL Driver of age, qualified and fit for the work 300 dollars for weeks or months under the guise of training or “Driver Placement” instead of actual wages which should be a few thousand gross per 8 days driving to the same driver.
The job itself is not difficult. A deaf, handicapped or a monkey can do it. Go to A get loaded drive to B get empty in tractor trailers costing upwards of half a million total with complete almost robot self aware technology. At some point paying humans will be too expensive. Particularly uppity deaf people who dared to reach for the world on the big road outside of being just a nice dishwasher.
The job itself is not hard. The problem is money in the entire industry and time. China takes several months to make stuff we buy here in our stores and we want that truck delivery yesterday as if it was very important and our National Survival is staked on it. But refuse to pay for the services and freight that is worth paying for of good qualilty.
And finally the Government does not understand or care that these costs of training new workers that will support America in the Industry is a tax write off in so many ways. And you wonder why our Nation is constantly declining in trucking quality and ability to thrive in the world more than a short time without it.
Its all about the dollars. I had a thought this morning over coffee. I am deaf. I should hire onto werner with my grandfathered CDL and so on and exemption from DOT so hearing matters not. Get discharged in training next week and have my hand out for 300,000 dollars statuary award to me from Werner. Or any other trucking company out there. When Drivers hire on they are not being approved by the company, DOT, FMCSA, Doctor or any of that. Its the Insurance Company that decides if so and so is worth paying for coverage to hire. And not until then.
Until these changes are rooted out and cleaned up behind the scenes you will never have the strong trucking culture that founded our modern Nation 100 years ago in both peace and war.