Disability Discrimination Blog

Another ADA Violation and Settlement

2010-12-06T15:55:00.000-06:00

National Waste Removal Firm IESI recently settled a disability discrimination case brought by the EEOC on behalf of one its former employees. Truck driver Ronald Harper lost his job when his new supervisor found out that he's dyslexic. Dyslexia is a learning disability that causes sufferers to inappropriately or unsuccessfully interpret graphic symbols when reading. Jay Leno often famously and openly discusses his own dyslexia in the media.

Harper was able to perform the essential functions of his job, but just four hours after informing a new supervisor that he was dyslexic, the supervisor fired Harper because he said he didn't want Harper's dyslexia to cause him to "see things swirly" and cause an automobile accident.
The supervisor's perceptions of Harper's disability obviously had no basis in fact or reality. Further, it's a blatant violation of the ADA to terminate an employee because of a perceived or actual disability, especially in cases where the employer fails to engage in the "interactive process" to accommodate disabilities.

The ADA protects employees with physical and mental disabilities, including learning disabilities. Rather than appear before a jury, IESI admitted it discriminated, agreed to pay $95,000, and will institute several policy changes to prevent discrimination in the future.

Wal-Mart Afoul of the ADA?

2010-11-12T13:35:00.001-06:00

The Americans with Disabilities Act celebrates its 20th anniversary this year, but several large employers, which should be well aware of the law, continue to violate the Act. The EEOC recently filed suit against Wal-Mart for violating the ADA when it terminated a long-time employee who requested an accommodation for his disability. The Plaintiff, a cancer survivor with limited function in his right arm due to cancer related surgery, worked as a forklift operator for 12 years. He performed his job well and received outstanding performance evaluations (including an outstanding evaluation on the last day he worked).

In November 2008, Wal-Mart asked the employee to relieve another worker in the shipping department during a 20 minute break. He was unable to replace the employee because that individual’s work required lifting, which the Plaintiff could not perform due to his shoulder disability. Rather than accommodate him (i.e., allow him to remain in the same position he performed successfully for 12 years), Wal-Mart removed him from his forklift position and placed him on unpaid leave, declaring that he could not perform the essential functions of his job. He complained, filed a discrimination charge, and Wal-Mart fired him a few months later.

Wal-Mart’s alleged conduct violates the Americans with Disabilities Act, which requires employers to: accommodate employees with disabilities, refrain from discriminating against employees because of their disabilities, and refrain from retaliating against employees who request accommodations or file complaints about potential violations of the Act. Wal-Mart may be ordered to reinstate employment, issue back and front wages, pay interest, costs, and attorney fees, and potentially pay as much as $300,000 in punitive and compensatory damages if the EEOC succeeds in its lawsuit.

Disablity Discrimination Filings on the Rise

2010-10-07T15:42:00.001-05:00

The Equal Employment Opportunity Commission (EEOC) received more Americans with Disabilities Act (ADA) complaints in 2009 than in any calendar year since the enactment of the law. The EEOC, sometimes in partnership with state agencies, investigates claims of discrimination, harassment, and retaliation based on disability, age, religion, race, sex, national origin, and pregnancy. The EEOC assigns investigators who determine whether or not there is probable or reasonable cause to believe that discrimination occurred. Aggrieved employees are required to file ADA claims with the EEOC before filing a lawsuit in federal court.

In 2009, only 5.1% of ADA cases filed with the EEOC received favorable initial determinations (the lowest percentage since 1997). Less than half of those "probable cause" cases resulted in successful conciliation efforts before heading to court or independent alternate dispute resolution. However, more than 22% of ADA cases filed with the EEOC in 2009 resulted in settlements, were withdrawn with the desired benefits conferred to the complaining party, or were successfully conciliated.

Because of the nuances of the law and the administrative process, litigants who hire attorneys are typically at an advantage over litigants who file with the EEOC pro se. If you have a medical condition or disability and your employer refused to work with you to accommodate your condition, you suspect your employment has been terminated because of your disability or medical restrictions, or you are receiving less favorable treatment than other individuals who are not disabled, you should contact an experienced employment lawyer.

Under the federal law, employees have 180 days to file a complaint with the EEOC. In some states, like Wisconsin, employees are permitted 300 days to file a complaint with the local agency (Department of Workforce Development in Wisconsin). If successful, you may be awarded a number of remedies, which may include: reinstatement to your position, an accommodation, recovery of back pay, recovery of interest, recovery of attorney fees, and in some cases, recovery of punitive and compensatory damages.

Welder Gets Trial on Disability Discrimination Claim

2010-09-03T10:26:00.000-05:00

Heather Spees worked as one of the few female welders at James Marine, Inc. After she became pregnant and eventually lost her job, she sued her former employer for pregnancy discrimination and disability discrimination.

Ms. Spees’ welding job was physically demanding and required her to lift heavy equipment, cram herself into small crevices, climb ladders, bear hot temperatures, deal with fumes and dust, and handle overhead equipment.

Ms. Spees’ supervisor described her as a good employee and even ribbed the male employees about how well she performed in comparison to them. After she became pregnant, her doctors and supervisors both began imposing restrictions on Ms. Spees. Her job duties were altered and her doctors eventually prescribed bed rest. The employer ultimately made the fatal decision to tell Ms. Spees that it was firing her because she was pregnant.

Ms. Spees included with her pregnancy discrimination claim a claim that the employer discriminated against her because of a disability when it transferred her to the "tool room" after learning that she was pregnant. Spees admittedly did have not a permanent disabling condition and it is well established that pregnancy alone does not constitute a disability for purposes of the ADA. So naturally, the main dispute in the disability discrimination case was whether Ms. Spees was “disabled” for purposes of the statute.

Spees’ ADA claim hinged on her contention that the employer erroneously perceived her to be disabled “based on her history of conditions with a previous pregnancy.” (she previously had experienced miscarriages). This type of claim exists where “(1) an employer mistakenly believes that an employee has a physical impairment that substantially limits one or more major life activities, or (2) an employer mistakenly believes that an actual, non-limiting impairment substantially limits one or more of an employee’s major life activities.”

Ms. Spees will get a chance to present her “perceived disability” case to a jury because the employer regarded her as having a disability (high-risk pregnancy), the employer believed that the perceived impairment limited a major life activity (her ability to work as a welder), she was qualified to weld (with or without an accommodation), and the employer took adverse action (when it transferred her to the tool room).

Copper company sued under ADA

2010-08-24T15:50:00.000-05:00

The EEOC recently filed suit against KobeWieland Copper Products, LLC for refusing to hire an individual as a caster due to his actual and perceived disability. KobeWieland offered the Plaintiff the position on September 24, 2008. When he appeared for work, the Defendant’s HR specialist noticed that the Plaintiff was missing digits on his left hand. Instead of working with the Plaintiff to ensure a reasonable accommodation, the Defendant rescinded the job offer because of its concerns that the Plaintiff could not perform the job. The Plaintiff alleges that he could have performed the job with or without an accommodation, but was not even afforded the opportunity to show that he could do the work, despite offering to demonstrate that he could perform the job.

If the Plaintiff’s allegations are true, the Defendant could be held responsible for paying the Plaintiff’s back wages with interest, reinstating his employment, and paying any costs and attorneys fee he may have accrued.

Woman "Perceived as Disabled" Under ADA

2010-06-29T13:57:00.000-05:00

Kimberly Ann Norman, a Union Pacific Railroad (“UNP”) employee, had a number of physical medical conditions, including irritable bowel syndrome, requiring short term and long term disability leave in the early 2000s. As with many LTD plans, the insurance company, or in this case, UNP, questioned whether Ms. Norman’s medical conditions were due in part to mental illness, thus subjecting Norman to a limited term of benefits known as a mental illness limit. The company required Ms. Norman to undergo an independent medical examination (“IME”), which resulted in the company’s physician determining that Norman’s long term disability resulted from mental, not physical conditions.

When she was later terminated, Ms. Norman claimed discrimination under the Americans with Disabilities Act (“ADA”) because UNP regarded her as mentally ill and terminated her because of the perceived disability. Despite the fact that she did not regard herself as mentally disabled, never voluntarily sought treatment for mental disabilities, never received a second opinion from a physician confirming mental disability, and filed appeals and extensions allowing her to collect LTD benefits for her physical disabilities, the 8th Circuit Court of Appeals agreed with Ms. Norman’s argument. For purposes of the ADA, Ms. Norman established an ADA-qualifying disability because the employer regarded her mentally disabled due to the findings of its own physician in Norman's LTD claim.

The “perceived as disabled” rule prevents employers, insurance companies, and plans from arguing in LTD cases that the employee’s disabilities are rooted in mental illness, and then turning around and arguing in an ADA discrimination case that the employee does not have an ADA-qualifying mental disability.

Two "failure to hire" Disability Discrimination Suits Resolved

2010-06-23T13:38:00.000-05:00

On June 15, 2010, the EEOC reported that it reached an agreement with Starbucks to settle a suit for Starbucks' failure to hire Chuck Hannay, who suffers from multiple sclerosis. Among other terms of the agreement, Starbucks paid $80,000 to resolve the suit. Mr. Hannay applied for one of six open barista positions at a store in Russellville, Arkansas, but the store did not contact Mr. Hannay in response to his application. It instead hired other, less experienced candidates to fill the open barista positions. Starbucks reportedly worked in a cooperative manner with the EEOC to insure that similar discrimination would not occur in the future. Failure to hire individuals with physical or mental impairments that substantially limit one or more of their major life activities is illegal under the Americans with Disabilities Act.

On June 16, 2010, the EEOC issued a news release revealing that it settled a similar case against Balance Staffing. Balance's owner and manager hired Jocelyn Snower as a recruiter. When the owner learned that Ms. Snower is blind, he immediately revoked the job offer, despite the fact that Ms. Snower is an experienced recruiter. This is an example of "direct" disability discrimination, which is unlawful under the ADA. In order to resolve the suit, Balance was forced to pay $100,000 and the owner was compelled to enter ongoing EEO training. Individuals who are subjected to such adverse treatment should contact an employment lawyer and the EEOC.

Airline Settles Disability Discrimination Suit

2010-04-27T17:36:00.000-05:00

The Equal Employment Opportunity Commission ("EEOC") and Pinnacle Airlines recently settled a lawsuit against the airline for disability discrimination in violation of the Americans with Disabilities Act ("ADA"). Accoding to the EEOC, the airline terminated Vickie Cowie because she walked too slowly. A short time after commencing her employment with the airline as an administrative employee, working primarily behind a desk, Ms. Cowie saw her doctor about pain in her knee. Her physician diagnosed her with arthritis. Cowie continued working and performed her job competently, despite the fact that the arthritis caused her to walk with a limp and use a cane. The EEOC filed suit on Ms. Cowie's behalf, alleging that the airline terminated her because the pace of her gait was too slow.

Rather than trying the case in court, the airline agreed to enter a public settlement agreement. As a part of the agreement, the airline paid Ms. Cowie $20,000 and agreed to reform its human resources policies and procedures.

Employees who are treated unfairly because of their disabilities should contact an employment lawyer immediately and file a charge with the EEOC within 180 days of the adverse treatment.

Employers Must Provide Reasonable Accommodations for Disabled Workers to get to Work

2010-04-14T13:26:00.003-05:00

During her employment as a cashier with Rite-Aid, Jeanette Colwell became blind in one eye due to a medical condition completely unrelated to her employment. Ms. Colwell informed her supervisors that it became difficult for her to drive at night due to her blindness and provided a note from her doctor regarding the same. Her supervisor, however, refused to schedule her exclusively during the day because the supervisor felt it would be unfair to other employees. Ms. Colwell eventually resigned her employment by submitting a note indicating that she felt she was treated unfairly.

Ms. Colwell brought suit under the Americans with Disabilities Act "ADA" and the state equivalent. She argued that Rite-Aid constructively discharged her, failed to accommodate her blindness, and retaliated against her because of her disability. The parties agreed that Ms. Colwell did not require an accommodation once she arrived in the workplace, and the District Court therefore found that Rite-Aid did not fail to accommodate Colwell's disability. Colwell’s constructive discharge and retaliation claims were also summarily dismissed by the lower federal court.

On Colwell’s appeal, Rite-Aid argued that it had no duty to even consider changing Ms. Colwell's shift because Colwell's difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not require employers to accommdate such issues. The Third Circuit Court of Appeals disagreed and held that changing Ms. Colwell's working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates, even though it was technically outside of the workplace and working hours. Employers are required under the ADA to provide reasonable accommdations to help alleviate their disabled employees' disfficulties in getting to work, so employees should readily communicate those needs to their employers in order to intiate the process of accommodation.

7th Circuit Dismisses ADA Psoriasis Claim

2010-02-19T10:34:00.003-06:00

In Turner v. The Saloon et al., the Seventh Circuit Court of Appeals affirmed the district court’s determination that Psoriasis did not meet the “substantially limiting” element of an ADA protected disability in that case. The Plaintiff argued that his psoriasis substantially limited his ability to walk. He admitted under oath, however, that at worst, his psoriasis periodically causes “severe pain causing him to walk with his legs more astride, appearing as a limp.” When it comes to walking, the Seventh Circuit had previously determined that walking with difficulty is not a significant restriction on walking. Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 785 (7th Cir. 2007). It has also held that that an employee is not disabled when he admitted that he could walk “distances of less than a mile ‘consistently,’ [and] that a mile walk ‘wouldn’t be any problem as long as I’m paying attention to what I’m doing.’ ” Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir. 2000). Although psoriasis is a bona fide and often serious medical condition, arguments that it limits one’s ability to walk and therefore qualifies as an ADA protected disability, absent a particularly severe or unusual case, will be hard-pressed to succeed. This doesn't, however, mean that psoriasis will never qualify as a disability, provided it substantially limits walking or other life activities.

ADAA Changes to ADA Benefit Disabled Workers

2010-01-13T12:03:00.001-06:00

Last year, the Americans with Disabilities Amendments Act (“ADAA”) redefined the meaning of the term “disabled” under existing law by emphasizing disability is to be interpreted more broadly. The Americans with Disabilities Act (ADA) defines “disability” as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” For employees claiming disability discrimination, the definition and interpretation has traditionally encompassed both major life activities required at work and major life activities outside of work. The ADA definition remains, but the ADAA specifically overturned recent Supreme Court decisions and EEOC guidelines for interpretation of the term “substantially limits”. No longer do employees have to show that they are “unable to perform” or are “severely restricted from performing” major life activities in order to qualify as disabled under the ADA. Rather, the new interpretation kept the language of the Act intact, but legislatively changed the legal standard that had been developed by the EEOC and the courts to a more liberal standard. New EEOC rules and regulations, issued in September 2009 conform to the relatively new law.

The interpretation of “major life activities” has also been redefined by the recent Amendments. The ADAA now lists major life activities as “includ[ing], but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” In addition to being a non-exclusive list, the list itself encompasses a broad scope of major life activities. If thinking, concentrating, breathing, and hearing are major life activities for purposes of the ADA, driving, caring for family members, having sexual relations, and using the internet also may be considered major life activities.

Also notably included as major life activities under the new amendments are “major bodily functions” such as: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This completely redefines the notion of disability as it had been interpreted by the courts. Although an individual may be able to perform major life activities in the typical sense the phrase, i.e. walking, communicating, performing manual tasks, if his immune system, kidneys, or other body processes are “substantially limited”, he may be considered disabled for the purposes of the ADA. Just as with more traditional major life activities, the new “substantially limited” interpretation is less stringent than the old “severely restricted” standard for major bodily functions.

Nick McLeod practices disability law as an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding disability discrimination or employment law, please contact him at: NMcLeod@employee-advocates.com