Archive

Archive for the ‘ADA’ Category

All in an EEOC Week

The EEOC is proud of its lawsuits. I used to be proud of mine too…until I realized thy cause more damage than good…even where there was bad conduct. According to the EEOC’s press release page these are the claims from just one week:

EEOC Sues Owner of Golden LivingCenter – Dartmouth for Disability Discrimination 3/19/12

Agricultural Supplier Olam Settles EEOC Pregnancy Discrimination Suit for $140,000 in Fresno 3/15/12

Warren Tricomi to Pay $30,000 to Settle EEOC Pregnancy Discrimination Suit 3/15/12

Hal Leonard to Pay $150,000 to Settle EEOC Sexual Harassment Charge 3/14/12

Family Video to Pay $70,000 to Settle EEOC Disability Discrimination Suit 3/14/12

Sterling and Sterling to Pay $120,000 to Settle EEOC Suit for Retaliation 3/14/12

EEOC Sues GGNSC Administrative Services For Disability Discrimination 3/13/12

Menorah House Settles EEOC Religious Discrimination Lawsuits 3/12/12

As you can see from the titles, disability and pregnancy leave have been major targets. Employers must do two things to better manage these claims: First, take disability requests and harassment complaints seriously. If you don’t know what to do, then get help. Secondly, get Employment Practices Liability Insurance. See the checklist on HR That Works. I bet every one of the companies sued that didn’t purchase it wishes it had.  Also understand this – these settlements and verdicts are LESS than they would be if brought by private attorneys in state courts.

EEOC Issues Revised Guidelines on Employment of Veterans with Disabilities

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a revised publication addressing veterans with disabilities and the Americans with Disabilities Act (ADA). The revised guide reflects changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.  [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.] 

As large numbers of veterans return from service in Iraq and Afghanistan it is important for employers to be prepared.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

Categories: ADA, Disability, EEOC, USERRA, Veterans

Watch Those Doctors Notes Required by Attendance Policies

Attendance policies that require employees to provide a doctor’s note stating the nature of the absence before the health-related absence would be excused could result in unlawful medical inquiries under the ADA. In a case filed by the EEOC against Dillard’s department stores on behalf of employees who were affected by such an attendance policy (EEOC v. Dillard’s, Inc.), the EEOC claimed that the employer violated the ADA when it required that doctor’s notes in support of an absence specifically identify the nature of the illness, or the absence would be treated as unexcused. Some employees were disciplined and terminated for these “unexcused” absences.

The U.S. District Court for the Southern District of California concluded that Dillard’s attendance policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries. Dillard’s policy required employees to disclose “the nature of the absence (such as migraine, high blood pressure, etc ….)” and “the condition being treated.” Such an inquiry by Dillard’s, the court held, may tend to elicit information regarding an actual or perceived disability and invited intrusive questioning into the employee’s medical condition in violation of the ADA. Indeed, the ADA regulations make clear that an employer “shall not … make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The court found that there was no evidence indicating that Dillard’s policy was job-related or a matter of business necessity.

This case provides a strong reminder for employers to review their attendance policies to ensure that they comply with today’s interpretation of workplace laws to avoid the EEOC’s scrutiny. The court did provide some guidance for Dillard’s, and employers in general, when it noted that “Dillard’s could have required its employees to submit a doctor’s note specifying the date on which the employee was seen, stating that the absence from work was medically necessary, and stating the date on which such employee would be able to return to work.”

Categories: ADA, Disability, EEOC

All in a Month

January 18, 2012 Leave a comment

A review of the EEOC’s press release from the 30-day period between December 13 and January 13 reveals the following:

Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans 1/11/12

Family Dollar Stores of Virginia to Pay $45,000 to Settle EEOC Sexual Harassment Lawsuit 1/11/12

Matrix L.L.C. Will Pay $450,000 to Settle EEOC Race Discrimination and Retaliation Lawsuit 1/6/12

DynCorp to Pay $155,000 for Sex-Based Harassment and Retaliation In Iraq 1/6/12

Bank of Albuquerque Discriminated on the Basis of Age and Sex, EEOC Alleges in Lawsuit 1/4/12

Grand Central Partnership Fired Rastafarian for Complaining of Threatened Violence, EEOC Says 1/3/12

RCC Consultants, Inc. Sued for Disability Discrimination 12/29/11

EEOC Sues Midwest ISO for Disability Discrimination 12/23/11

Mesa Systems Sued by EEOC for National Origin Discrimination 12/23/11

American Apparel Agrees to Settle EEOC Disability Bias Suit for $60,000 12/19/11

Jim Robinson Ford-Lincoln-Mercury to Pay $56,000 to Settle EEOC Disability Lawsuit 12/16/11

EEOC Retaliation Case Against Cognis to Proceed, Federal Judge Orders 12/16/11

Wal-Mart to Pay $275,000 to Former Employee Fired after Cancer Surgery 12/16/11

EEOC Launches Small Business Task Force 12/15/11

EEOC Sues Wal-Mart for Disability Discrimination and Retaliation 12/15/11

B&B Pharmacy in Bellflower to Pay $70,000 for Disability Discrimination In EEOC Suit 12/15/11

M. Slavin & Sons to Pay $900,000 to Settle EEOC Discrimination Suit 12/15/11

Vitas Healthcare Sued By EEOC in Disability Discrimination Lawsuit 12/14/11

Dairy Queen Restaurant Sued By EEOC for Sexual Harassment and Retaliation 12/14/11

Federal Court Signs Order for Blockbuster Inc. To Pay Over $2m to Settle EEOC Suit for Sex, Race and National Origin Discrimination, Retaliation 12/14/11

UPS Unit to Pay $95,000 to Settle EEOC Disability Discrimination Suit 12/14/11

King Soopers to Pay $80,000 to Settle EEOC Disability Discrimination Lawsuit 12/13/11

Bottom line: The EEOC is cranking it up. Make sure you have your disability, discrimination, and sexual harassment training and tools up to date…or you could be the next press release!

California Supreme Court Grants Review of Important Immigration/Discrimination Law Case

December 5, 2011 Leave a comment

The Case of Salas v. Sierra Chemical (2011) caused quite a stir because the appellate court dismissed a disability discrimination claim of undocumented alien based on unclean hands. Now the California Supreme Court will decide this far ranging issue. The appellate court essential took much of the teeth out of a legislative amendment to protect illegal aliens against discriminatory and other illegal workplace conduct…regardless of their status. We’ll be keeping an eye out for this one!

Docket
Court of Appeal Opinion

State Orders Air Canada to Pay over $325,000 for Refusing to Accommodate Customer Service Agent’s Disability

October 27, 2011 Leave a comment

ELK GROVE, CA — The California Department of Fair Employment and Housing (DFEH) announced today that Air Canada must pay more than $325,000 in damages after the company fired one of its customer service representatives because of her disability. The Fair Employment and Housing Commission (Commission) found that Air Canada failed to accommodate the employee’s disability and then fired her because she could not lift cargo – a job function customer service representatives rarely perform.

“Employers must attempt to find reasonable modifications that allow employees with disabilities to keep working,” said the Department of Fair Employment and Housing Director Phyllis Cheng. “Using non-essential job functions as a pretext to deny employment to persons with disabilities is unlawful in California.” 

The employee, Caroline Messih Zemaitis, worked as a customer service agent for Air Canada at Los Angeles International Airport from 1993 to 2007.  Starting in 2004, she held a clerical position in the cargo division that did not involve physical labor.  In 2005 and 2006, Ms. Zemaitis injured her back, shoulder, knee and wrist, and her doctor restricted her from performing such tasks as heavy lifting and repeated bending.  She was able to keep working in the cargo division with minor accommodations such as Air Canada’s provision of a telephone headset and heating pad, and time off for physical therapy.  

When Ms. Zemaitis became pregnant, her back condition worsened and she took a medical leave of absence for about a year.  She tried to return to work in 2007 when her doctor released her with restrictions similar to those she had before, but Air Canada refused to respond to her many communications.  Instead, Air Canada terminated Ms. Zemaitis’s because she could not lift cargo, a job function the airline’s customer service agents rarely perform.

The Commission found during this precedential decision that Air Canada had violated the Fair Employment and Housing Act. It ordered them to pay Ms. Zemaitis $102,737 in back pay, $19,720 in lost benefits, and $125,000 for emotional distress.  Air Canada must further reinstate and pay Ms. Zemaitis $54,784 in wages plus interest and pay the State a $25,000 administrative fine.  The airline will also have to post a notice about their liability and develop a policy and train management on reasonable accommodations necessary to allow disabled employees to continue working.

Electrical Supply Company Ordered to Pay $846,300 for Firing Cancer Survivor

September 13, 2011 Leave a comment

The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext. 

After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

Employer lesson: You can’t ignore ADA restrictions simply because it’s a pain to comply with. Any employee with a disability has to perform, with or without accommodations. In this case, had ACME attempted to accommodate Mr. Wideman…and he still could not perform to standard, then there is no liability. To learn about accommodating employees with cancer go to http://askjan.org/media/canc.htm

Categories: Accommodation, ADA, California