A recent lawsuit illustrates the potential liability employers face when making assumptions about an employee's disability limitations.
Drake Solomon, who spent three years energizing crowds as the Denver Nuggets' mascot, Rocky, recently sued his employer, Kroenke Sports & Entertainment, alleging claims of disability discrimination and retaliation. He also alleges that his supervisors aided and abetted Kroenke's unfair employment practices.
Mr. Solomon stepped onto the court as Rocky in 2021, continuing a family tradition started by his father, Kenn Solomon, who created the character more than three decades earlier.
During the 2022-23 NBA season, Mr. Solomon was diagnosed with avascular necrosis ("AVN") and underwent surgery to treat his condition. Unfortunately, the surgery did not alleviate all of his symptoms, and his doctors determined that he needed a total hip replacement. After notifying Kroenke that he required a second surgery, his supervisors told him that they would be holding tryouts for the Rocky position "regardless of the outcome" of his surgery. This was notable because Mr. Solomon's father never participated in a tryout during his thirty-plus-year tenure, and Mr. Solomon was the only person invited to try out for the role of Rocky in 2021.
Mr. Solomon's surgery was successful, and his recovery went so well that he returned to work earlier than expected. Despite Mr. Solomon's miraculous recovery, defendants still conducted try-outs for his position because he had "burned them last time" (i.e., via his AVN surgery). During the try-outs, Mr. Solomon hit every mark, including his famous dunk stunt.
Kroenke fired Mr. Solomon shortly after his slam-dunk audition. Adding insult to injury, Kroenke provided Mr. Solomon with a separation agreement that violated Colorado law.
This case is important to employers for multiple reasons.
First, employers must be extremely careful when employees return from injury-related leave to avoid ADA violations and other legal issues. For example, employers should not assume that an employee can't perform their job duties, which may be what happened when Kroenke assumed Mr. Solomon could not perform all of Rocky's essential duties, and held an open tryout for the first time in the 30+ years of the Rocky position.
Kroenke will likely allege that it had a legitimate reason to terminate Mr. Solomon, namely, that he did not come in "first" during the tryout. But was a tryout even necessary if Mr. Solomon was able to perform all essential functions of his job without an accommodation?
Second, supervisors can be liable for aiding and abetting wrongful conduct. Here, Mr. Solomon also sued two of his supervisors, Steve Johnson and Craig Dzaman, for creating a hostile work environment when he returned from his hip replacement surgery. For example, Mr. Johnston, allegedly sarcastically asked Mr. Solomon: "So you can go dunk now?"
Third, employers with Colorado employees must comply with comprehensive state employment laws, including the Protecting Opportunities and Workers' Rights (POWR) Act, or risk facing costly class action litigation. The Colorado POWR Act applies to agreements that include confidentiality and non-disparagement provisions. A violation of the POWR Act can result in a $5,000 penalty per instance, plus potential liability for actual damages, costs, and attorney fees. Here, Kroenke provided a separation agreement to Mr. Solomon that allegedly violates the POWR Act. Mr. Solomon surmises that if Kroenke provided him with an agreement that violates the POWR Act, it provided the same illegal agreements to other former employees, which could lead to a class action lawsuit against Kroenke.
What Should Employees Do in Light of Solomon v. Kroenke?
Employers must exercise extreme caution to avoid discrimination when dealing with employees who have taken leave or disclosed disabilities. They cannot treat employees differently simply because they took leave, nor can they discipline or terminate employees based on their leave history or disability status.
Employers must avoid making assumptions about an employee's ability to perform job duties and instead conduct individualized assessments focused on essential functions and actual performance. The timing of adverse employment actions requires particular attention, as actions taken shortly after leave or disability disclosure can appear discriminatory and invite legal scrutiny. Perhaps most critically, employers must guard against pretextual reasoning for termination, such as when the employer's stated reason for an adverse action is false or manufactured to cover discriminatory intent (like holding a tryout when the employee can perform all essential job duties).
Employers must also ensure that their employment documents and practices comply with all state and federal laws. Specifically, here, employers should confirm that their separation agreements comply with the POWR Act to avoid the possibility of class action liability.
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