Another ADA Violation and Settlement

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?

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

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

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

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

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

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.