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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

One Last Public Service Announcement On Sleep Apnea

Posted in Americans with Disabilities Act

Wow, did our recent sleep apnea post about the police officer who was fired strike a chord — don’t know how many folks wrote in, mostly about sleep apnea itself and not about the employment law aspect of the matter!

From the nature of the comments, it seems like this serious medical condition has been kept under wraps or hidden from view, with few people understanding the nature and severity of it, and that sufferers and their advocates seem eager to discuss it.  

Because of the flood of comments, and what appears to be a need for people to understand this condition, we publish one more comment — from one suffering reader who found relief:

CPAP : Man with sleeping apnea and CPAP machine, devise, asleep peacefully with wife in bedroom their house. Healthcare management patient with sleep apnea. Human respiratory, airway, system health issues.

Rosalind Strasser, a training project coordinator in the Orlando area:

“I can’t imagine life without my CPAP. I adjusted immediately and would say my quality of life improved 400% from before using it (seriously).  I love it when I have a cold because it pushes through the congestion allowing me to breathe. I don’t snore while using it – a benefit my husband really appreciates.  Carrying it around is a small price to pay for feeling as great as I do now.

I never understood why I would always get drowsy in the middle of the day and if riding in the car, I would be asleep within 10 minutes and if driving on a warm day, I had to fight to stay awake. I snored and had lots of anxious dreams.

It wasn’t until our secretary was diagnosed with sleep apnea that I understood what was happening to me. She was sitting at an intersection on moment and in a ditch the next. Turns out that she fell asleep at the intersection and drove into the ditch. She told me about her condition and then I heard a radio program about it. I decided to get checked and it turned out that I too, suffered.

Ironically, my dad had just got tested and had a very severe case. I wasn’t that bad, but it made me wonder how long it might have been before something bad could have happened to one of us – or someone else because of us!”


Fired Pregnant Employee Offered Job Back After Our Blog Post!

Posted in Uncategorized

Boy, do we have clout or do we have clout!

Just two days after we posted about a NYT article which reported that an employee with a high-risk pregnancy was fired because her doctor refused to let her work overtime, the NYT reports today that the employer said it was all just an “unfortunate misunderstanding” — and that she can return “immediately without loss of seniority and without fear of retaliation.”

(Had nothing to so with the NYT article, we just want you to know).

pregnant women : pregnant businesswoman at work. isolated on white background  Stock Photo

New York City’s Pregnant Workers Fairness Act requires employers to make reasonable accommodations for pregnant workers.

Takeaway:  If only the employer had read our blog — before it chose to fire her, and not after!



Sleep Apnea Can Be Deadly: A Sufferer Comments

Posted in Americans with Disabilities Act

Our post the other day on the case of a fired police officer with sleep apnea awarded $1 million brought in a ton of comments — about the dangers of sleep apnea and how it can easily go undiagnosed and untreated.

So we want to post this comment — for all to read — from a sufferer who was treated successfully — and is happy that he did. 

Andrew Steenson, a union labour relations expert in Toronto:

“Let me say this. As a sufferer of Sleep Apnea I can tell you this is no joke. Untreated it can be deadly.

My sleep clinic study showed I stopped breathing almost every minute. I was told I never hit REM sleep and that my 8 hours of “sleep” was equal to the average person’s nap.  I suffered for 10 yrs undiagnosed and could have easily been in the same situation.

Once diagnosed it can still be a very challenging situation to manage. Things are not always what they seem on the surface.  This is not something that can be easily “fixed” either.  It took me well over a year to get used to having this apparatus [CPAP] on my head in bed.  It is useless if you have a cold or if the power goes out.

sleep apnea : Adult Man Frustrated with CPAP Mask Stock Photo

Man With CPAP Apparatus

I can say this. If you have sleep apnea and get a machine, even though it is a pain in the A$$ to have to wear, carry around when traveling etc., etc…once you finally have a good night’s sleep you will never want to sleep without it again.”


Sleep Apnea And Shakespeare?

Posted in Americans with Disabilities Act

Our recent post on sleep apnea as a disability brought some good reader questions and comments which bear posting.  One, from a Mexican lawyer, and a second, from a Canadian talent officer, ask some good questions about American laws — does anyone want to try responding?

The last brings Shakespeare (Shakespeare?) to bear on sleep apnea. 

Shakespeare : William Shakespeare in period clothing sitting in school desk with laptop and shrugging at viewer.

Luis Daccarett, Judicial Law Clerk in the 2nd Constitutional Court of Appeals in Mexico:

“I wonder if the real underlying cause was apnea or insubordination.

Two questions arise from my reading, if I may:

(1)  Why wasn’t he offered his job back instead with the police? In the event he were, did he have to take it?

(2)  Is the paying of damages the only way to settle an employment dispute in legal America?

Just curious!”

Sonia Dhaliwal, a corporate chief talent officer in Toronto:

“I’m a HR manager from Canada who advises for our divisions in the US.  I’m still trying to get to know my US federal and state employment law.

I have a truck driver who suffers from insomnia. There’s a lot of safety concerns in his case. He’s off now and not driving, but we’ve considered letting him go. Would insomnia also be considered as a disability?   It’s part of his essential job duty to drive and there’s no way to accommodate him.

I’ve asked for a fit for duty assessment to be filled out by his doctor or provide us at least with what we can accommodate him with and it’s been 3 weeks and hasn’t returned any medical documentation.  And it’s in the state of Illinois which is considered “employment at will.”

I’m wondering if we can terminate him? There’s potential safety risk for himself and others. Even if he’s prescribed the proper medication it doesn’t guarantee that he won’t fall asleep at the wheel. If he was in an accident, it could be a potential liability because we didn’t protect the public or him.

Any thoughts?”

sleep : Side view of businesswoman sleeping on counter in office Stock Photo

Finally, Johann Scheepers, Commissioner at the Commission for Conciliation, Mediation & Arbitration, in Pretoria, SA, our faithful rapporteur from South Africa, had this sleep-related case to add, in which he weaves in the immortal words of the great Bard:

“Apnea is indeed a serious medical condition and classified as a disability. Without timely medical intervention the said ‘sleep disorder’ may have disastrous consequences.

Having read the posting a recent matter came to mind that was before the South African Labor Court in the form of an application for review of an arbitration award.  The Applicant contended that the presiding Commissioner [Arbitrator] had based his findings on irrelevant considerations, that that the award was irrational and unreasonable. However, a further unusual ground for review was raised – that the Commissioner had snoozed through the arbitration hearing.

The Court set down a new ground of review:  statutory Arbitrators must be alert and awake at all times during the proceedings, or they perpetrate a “defect” within the scope of section 145(2) of the LRA.

Not applying the mind is bad enough. But succumbing to “Nature’s Soft Nurse” takes the cake.

The writings of Shakespeare came to mind:

‘O sleep, O gentle sleep, nature’s soft nurse, how have I frighted thee, that thou no more wilt weigh my eyelids down, and steep my senses in forgetfulness’.   [William Shakespeare, Henry IV, Part II, Act III, sc. 1].”



Pregnant Employee Fired Because Her Doctor Forbids OT

Posted in Pregnancy Discrimination

An article just published in today’s New York Times deserves a read:  it is about a woman who lost her desperately-needed job when her doctor insisted that she not work overtime because of a high-risk pregnancy.

The company refused to accommodate her, telling her that it needed a “full duty release” from her doctor if she wanted to continue working.

pregnancy : Stress at pregnant woman. Problems, sad, depression woman.

The Times wrote about the existing NYC law:  “This month marks the first anniversary of the Pregnant Workers Fairness Act, which was signed into law by former [NYC] Mayor Michael R. Bloomberg on Oct. 2, 2013.   The law, which went into effect in January, represents a big step forward for working women.

It requires employers to make reasonable accommodations for pregnant workers — such as providing rest and water breaks, modified work schedules and light duty – so long as the accommodations don’t cause undue hardship for the employer.”

Guess that this employer did not get the message.




Fired Sleep Apnea Sufferer Awarded $1 Million By Jury

Posted in Americans with Disabilities Act

This post is no joke:  not as a matter of law or of health.

Law360 has reported that after a jury verdict, a federal court has just ordered a Kansas city to pay almost $1 million to a former police officer who fell asleep on the job numerous times and was then diagnosed with severe sleep apnea, for which he was prescribed a medical device and medication.  He was fired.

SLEEP APNEA : Snoring man. Couple in bed, man snoring and woman can not sleep, covering ears with hands for snore noise. Middle aged couple, attractive woman, caucasian man sleeping in bed at home. Face expressions

The city’s contention was that he was fired for legitimate business reasons, such as insubordination.

SLEEP APNEA : Man with sleeping apnea and CPAP machine

The Mayo Clinic’s web site defines sleep apnea as “a potentially serious sleep disorder in which breathing repeatedly stops and starts. You may have sleep apnea if you snore loudly and you feel tired even after a full night’s sleep.  There are two main types of sleep apnea:  Obstructive sleep apnea, the more common form that occurs when throat muscles relax; and Central sleep apnea, which occurs when your brain doesn’t send proper signals to the muscles that control breathing.”

Untreated, it can cause hypertension, stroke, or heart failure.  One treatment is the use of a CPAP device, worn by the patient in the photo, above.

The takeaway here:  sleep apnea has been found to be a disability under the ADA, and left untreated can be very dangerous.


Posted in Age Discrimination in Employment Act

We have compiled a long list of words or terms used by employers to describe older employees — which the employees have later used in court as direct evidence of age discrimination under the ADEA.

Add another word to the list, which includes “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “bag of bones,” “not enough runway,” and “a little long in the tooth.”

Meloney Sallie-Dosunmu, a corporate HR director in the Allentown, PA area, reports:

“I was on a conference call one day and heard someone refer to some other colleague’s mistake as ‘senioritis.’


seniors : Portrait of a happy senior man smiling isolated on white Stock Photo

“How Can We Accommodate You?”

Posted in Americans with Disabilities Act

A recent post of ours dealt with a new decision from an Illinois federal court which held that the employer had enough facts about an employee and her condition to infer an “implicit” request for an accommodation and a need to engage in the “interactive process.”

This led us to ask:  Does an employee who needs an accommodation for a disabling condition actually have to request it, or can/should/must the employer infer such a request from the circumstances of the case?

asking for help : A person drawing and pointing at a What can we do for you Chalk illustration Stock Photo

We think that these questions need a thorough discussion with experts in the field, and so we published some good reader comments.  

Here are two more incisive comments:  

Geoffrey Mort, an employment Lawyer in NYC:

“This is a troubling but important question. Many employees with disabilities who are having trouble at work and could benefit from a reasonable accommodation have no idea that they are entitled to request one. I’ve handled several matters where an employee who was likely disabled under the amended ADA talked to HR and others in the workplace about their problems handling certain assignments, but didn’t know about reasonable accommodations and thus didn’t ask for one.

It’s not realistic to expect such employees to know the law or consult a lawyer, and courts should recognize that in some situations there can be implied requests for an accommodation that trigger the responsibility to begin an interactive process about what can help the employee capably perform his/her duties.”

Kerry Rieder-McLaughlin, an HR consultant in Montgomery, Illinois:

“In situations where someone has an obvious disability, i.e., pregnant, in a wheelchair or obviously has trouble seeing, it is safe for the employer to ask if the employee would require an accommodation to make doing their job more comfortable, etc.  In addition, as the NLRB noted, if the employer has enough information that they should have known that a disability existed then they can begin that discussion as well.

I strongly urge against employers becoming mindreaders, however, and encourage them not to ask someone if they have a disability when they only have suspicion of one. I believe that employees with disabilities are savvy enough to know what their rights are and what they need in order to perform the essential functions of a job they are qualified for, whether it is a magnifying glass, an additional break, or an ergonomic workspace.”

Don’t Forget “Perception” Of Disability Provision Of ADA

Posted in Americans with Disabilities Act

Complying with the ADA in hiring (and in the workplace) means not only “treating people equally despite whatever physical challenges they may face” (as per the EEOC), but also not making assumptions or buying into biases or stereotypes about an applicant’s abilities based on a disability.

Treating someone adversely or differently based upon a “perception of disability” violates the ADA as much as discriminating based upon the  disability itself. 

As put by an EEOC trial attorney in another case:  

“In this case an employee suffered financially because an employer misjudged her condition and her ability to work. … [E]mployers should not make decisions based on perceptions about someone’s supposed impairment. This case should remind all employers that the ADA requires employers to make an individualized assessment about an applicant or employee’s ability to do the job instead of acting out of speculative fears or biases.”  stereotypes : A man rides an arrow to jump over the word Stereotype to illustrate the power of justice and fairness in overcoming stereotyping, discrimination and racism

This point is illustrated in a new case filed by the EEOC under the ADA.  A restaurant in North Carolina fired an applicant for a busboy position as soon as he reported for work when the owner saw that his arm was amputated above his elbow.  The owner allegedly told him that he “could not bus tables because he had only one arm,” even though the applicant told the owner that he had bussed tables at another restaurant.

An EEOC attorney said that “Employers need to understand the importance of treating people equally despite whatever physical challenges they may face. In this case, we allege that [the applicant] was not hired because of assumptions made about his abilities based on his arm amputation. Employers must be careful not to violate federal law by making assumptions about people with disabilities.”

Takeaway:  Don’t forget the “perception of disability” provision of the ADA — it has doomed many an employer! 


76-Year Old Employee Told To “Hang Up His Superman Cape” Loses Age Case On Appeal

Posted in Age Discrimination in Employment Act

Way back in September 2013 we wrote that age cases would not be age cases if not for the vast number of creative ways employers refer to employees as “old.”  

We reported on cases in which the following terms were used:  “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “is like a bag of bones,” “not enough runway,” and “a little long in the tooth.”

In that same post we discussed an appeals court decision which was reported at the time in which a 76-year old security guard in Missouri claimed that he was fired because of his age, and his direct evidence of this was his supervisor’s comment to him, among other things, that he “needed to hang up his Superman cape.” 

New one for our list. 

old cape man : Full length portrait of an elderly in superhero costume isolated on white background

The appeals court panel held 2-1 that the employee stated a prima facie case of age discrimination.

But wait! 

We have just learned that the full bench of 12 federal appellate judges re-heard the case, and by a 9-3 vote reversed the prior decision – holding that while plaintiff indeed proffered direct evidence of age animus, such as the “Superman cape” comment, he nonetheless failed to show that the reasons given for his firing were pretextual.

Takeaway:  Don’t pick up your erasers – there was nothing in the new decision that would lead us to delete this “Superman” comment from our ever-growing list of age-related comments.