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Elon Musk opens Twitter up to liability in public war with fired disabled employee

Elon Musk appears in a white bow tie

Elon Musk (Dimitrios Kambouris/Getty Images for The Met Museum/Vogue)

In what has become his signature attempt-at-snark-gone-wrong style, Elon Musk publicly ridiculed a disabled Twitter employee in a manner that some experts say could instigate a wrongful termination lawsuit.

The former employee, Haraldur Thorleifsson, is a 45-year-old designer from Iceland who was born with muscular dystrophy and has used a wheelchair for two decades. Thorleifsson, who goes by Halli, sold his successful creative design company to Twitter in 2021 (before Musk acquired the company in October 2022) after the two companies successfully worked together in prior years.

After the sale, Thorleifsson teased Twitter’s then-CEO Jack Dorsey about adding a much-requested edit button to Twitter:

Thorleifsson gained nationwide praise in Iceland for structuring the financial aspect of his deal with Twitter in a manner that subjected him to a higher-than-typical tax rate and then speaking publicly about wanting to support the Icelandic health care and education systems from which he has benefitted.

Following the sale of his company, Thorleifsson became one of Iceland’s highest taxpayers and was named Iceland’s person of the year for his many notable philanthropic efforts. In particular, he was lauded for using the proceeds of the sale of his business to start Ramp Up, an initiative to have 1,000 handicap-accessible ramps in Iceland by 2026.

After Iceland’s president Guoni Th. Johannesson jokingly heckled Halli during a press event, that goal was raised to 1,500 ramps.

Thorleifsson continued as a Twitter employee after his company was acquired, until Sunday when he attempted to log on and found himself —along with 200 co-workers — locked out. Thorleifsson reached out to Twitter to inquire as to whether his employment had been terminated, but did not receive an answer. Finally, he tweeted at Musk to ask about his employment status.

Instead of answering Thorleifsson’s question about whether he was still an active employee, Musk asked, “what work have you been doing?”

When Thorleifsson responded with a list of specific tasks, Musk ridiculed him in a tweet to another user, writing, “The reality is that this guy (who is independently wealthy) did no actual work, claimed as his excuse that he had a disability that prevented him from typing, yet was simultaneously tweeting up a storm.”

Thorleifsson volleyed with a series of tweets describing the effects of his disability, which include reliance on a wheelchair and limited use of his hands and fingers.

Thorleifsson explained he is unable to do manual work, including typing on a computer for long periods of time, but that the limitation was not a particular barrier given that his position primarily required him to provide “strategic and tactical guidance.” Thorleifsson also explained that typing on a phone is easier for him because it requires only the use of a single finger.

Shortly thereafter, Thorleifsson said he was contacted by Twitter’s Human Resources department and told his employment was terminated.

“My theory is they made a mistake and are now looking for anything they can find to make this a ‘for cause’ firing to avoid having to fulfill their contractual obligations,” he told the BBC Wednesday. Thorleifsson also said that he is concerned that Twitter will refuse to honor its contractual obligations to him, such as payment of retirement funds.

Under Title VII of the Americans with Disabilities Act (ADA), U.S. companies can be held liable for terminating a disabled employee purely because of that person’s disability, even when that employee is a foreign national. Employers are required to engage in an interactive process with disabled employees to determine whether accommodations could be put in place to address the employee’s disability-related needs.

Moreover, the ADA also forbids an employer from discussing an employee’s disability status with a third party.

Musk’s tweets, which claimed that Thorleifsson “did no actual work” and used his disability as an “excuse” could certainly be used as damning evidence against Musk on both counts.

Law&Crime spoke with attorney and employment law expert Misty Marris Wednesday, who said that “there is no doubt” that Musk’s public dissemination of Thorleifsson’s disability status violates the ADA’s confidentiality requirement. While liability is clear, though, Marris explained that potential financial damages are relatively limited, particularly because Thorleifsson’s disability is well known.

Marris also pointed out that an ADA case is tougher to prove when an employee is fired as part of mass layoffs (such as Twitter’s continued layoffs, including 200 more this week).

However, Marris said “the optics of Musk’s public conversation with Thorleifsson are terrible” in that “it seems that Musk made the decision because of Thorleifsson’s disability.” She added, “It doesn’t matter if it’s because Musk didn’t believe Thorleifsson or personally questioned Thorleifsson’s veracity because as an employer, the requirement to go through the interactive process still exists.”

While Musk would not be personally liable under the ADA, his conduct as Twitter’s CEO would be imputed onto the company for purposes of establishing liability.

Should Thorleifsson choose to bring a lawsuit against Musk, he would still need to prove that he suffered economic loss as a result of his wrongful termination — a hurdle that Marris says could prove difficult and would require “a very fact-specific analysis.”  However, Marris said that based on information publicly available, “There is enough here to bring a lawsuit, and there would not be a basis to dismiss at the early stages.”

Late Tuesday, after the Musk-Thorleifsson Twitter exchange went viral, Musk apologized to the man via tweet and said his behavior had been based on a “misunderstanding of [Thorleifsson’s] situation.” Musk said that Thorleifsson is considering remaining at Twitter.

Since Musk took over Twitter, he has already faced many, many lawsuits, including some for illegal discrimination against employees. Should Musk face additional ADA lawsuits from other employees, his tweets with Thorleifsson might be admissible as an attempt to prove a pattern of disability-based discrimination.

Editor’s note: This piece has been changed to reflect a focus on Twitter’s liability under the ADA.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos