Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

RoseMarie Loft, an HR consultant in the UK, has commented on our post which disclosed the results of a survey in the UK which found that 37% of cancer patients have experienced some sort of discrimination.  

She writes:

“I find this quite difficult to accept at face value, based on experience. Perhaps, as it's an on-line questionnaire, we are really saying that 37 per cent of those that felt strongly enough to log in and answer the questionnaire felt this way. I'm not suggesting that those affected were being untruthful nor suggesting that their feelings are invalid. However, in all of the organisations I've worked in - and it's a fair few across a number of sectors in senior interim roles - I've yet to come across a single one that doesn't suspend all normal sickness management processes, make accommodation for additional sick pay (I've often authorised extended sick pay through to end of life, and rightly so in my view), provide flexible working through treatment if the employee wishes to work, make home visits and so on. That's not to say that there can't be some dreadful ones out there.

But I have experienced a good few colleagues that find it difficult to deal with serious illness on a personal level, especially when the illness is terminal. This can often make them distant and appear uncaring. It's also been my experience that when someone suddenly becomes ill with a potentially life-threatening illness, then they can lose trust of those around them. The skill for the HR person is trying to bridge that gap.”

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Way back on October 4, 2011, we asked whether any of you were ever in a situation where you had to produce a urine sample as part of routine drug testing, or were in a football stadium bathroom with a line of impatient fans behind you who had been drinking beer for hours and were muttering menacingly because you just froze up?

The pressure was on you, that’s for sure.  It’s called “paruresis,” also known as “shy bladder” or “bashful bladder.”  It is, simply, a bladder that has performance anxiety when the pressure is on, whether in a public situation or with others around. It’s a bummer, but is it a disability for purposes of the ADA if you are not hired because you can’t show a clean drug test because of it?   What “major life activity” is substantially limited by possessing a shy bladder – urinating in public? Drinking beer at a Giants game?

The EEOC  considered in 2011 “whether paruresis is a disability under the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), and under the regulations implementing the ADAAA published by the U.S. Equal Employment Opportunity Commission (EEOC) on March 25, 2011,”  in an informal opinion letter . 

We summarized this letter in our blog post at:: http://employmentdiscrimination.foxrothschild.com/2011/10/articles/americans-with-disabilities-ac/is-having-a-bashful-bladder-a-disability-or-merely-a-problem-at-halftime-at-giants-stadium/

The EEOC came to no definitive or clear conclusion, which led us to say:  “Stay tuned because we will no doubt see such a fact situation hit the courts soon enough and learn more.”

Well, the case has arrived – an applicant for a position as a an organ transplant financial coordinator at Iowa Methodist Medical Center failed a job-related drug test and was refused hiring because she could not complete the urine test – yep, paruresis. She sued under the ADA claiming that the Medical Center failed to make a reasonable accommodation for her alleged disability.

She claimed that she had always managed this condition by using single-stall restrooms or by running water to cover the sound of her urinating. Her court filing states that if she "cannot flush the toilet or run the water in the sink, she is generally unable to urinate in a public restroom." 

Should, or could, she have been accommodated without undue hardship?

Finally, we may get an answer to these weighty issues.  In the meantime, don't drink too much beer if the water's running. 

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Employers should embrace this mantra - “Beauty Lies In Diversity,” and not run from it.  It may sound “politically correct,” which to some is anathema, but it will prevent many claims of discrimination, and as studies tell us, it is good for business!   

On July 29, 2011, we reported on an Oklahoma jury which awarded $20,000 in damages in a religious discrimination case against Abercrombie & Fitch (EEOC v. Abercrombie & Fitch) where a Muslim job applicant was refused hiring when she appeared for an interview wearing a religiously-required headscarf.   Abercrombie argued that the scarf violated its strict "look" policy, which was in implemented to insure a unified "preppy" brand image.

Abercrombie & Fitch has once again been hauled into court because of its “look” policy – this time in London and this time accused of disability discrimination.   A law student with a prosthetic arm alleges that she was removed from the shop floor and "hidden" as a sales assistant in a stockroom when she refused to remove her cardigan which she wore to cover her prosthetic arm.

As reported in the The Guardian, the “‘look" policy stipulates that all employees ‘represent Abercrombie & Fitch with natural, classic American style consistent with the company's brand’ and ‘look great while exhibiting individuality.’ Workers must wear a ‘clean, natural, classic hairstyle’ and have nails which extend ‘no more than a quarter inch beyond the tip of the finger.’"

The employee claims that “A female A&F manager used the 'look policy' and the wearing of the cardigan as an excuse to hide me away in the stockroom. I knew then that I was being treated different and unfairly because of my disability. Her words pierced right through the armour of 20 years of building up personal confidence about me as a person, and that I am much more than a girl with only one arm. … "

"Abercrombie taught me that beauty lies in perfection, but I would tell them that beauty lies in diversity.”

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A Nevada engineering company, which the EEOC accused of requiring a pregnant employee to be certified to carry live ammunition and explosives, has -- surprise! -- just settled this case of pregnancy and disability discrimination for $70,000. 

  The employee was a pregnant and disabled technical assistant who was employed, along with her husband, at the Hawthorne Army Depot.  The EEOC alleged that:

1.  A manager made derogatory remarks to her and denied her request for an accommodation -- to move her office closer to the restroom because of her severe nausea and vomiting.  

2.  The company changed her job description while she was out on pregnancy leave, to require that she be certified to carry live ammunition and explosives, and then fired her.

3.  The company demoted her husband, and fired him for complaining of his wife's treatment and participating in the EEOC investigation of his wife's case.

The EEOC reiterated in its press release that ADA and pregnancy-related limitations comprise one of the six national priorities identified in its Strategic Enforcement Plan (SEP).

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Well, here to start your day is one more lawsuit brought by the EEOC against a health care facility for alleged disability discrimination.  This spate of suits in the health care industry is not simply an aberration but a concerted targeting by the EEOC. 

The suit alleges that a large health care institution in North Carolina refused to hire a phlebotomist because of a permanent physical impairment to his left knee, despite medical clearance

The EEOC said that he “was fully qualified for the position and could perform its duties, but was denied hire simply because Presbyterian Healthcare perceived him to be disabled as a  result of his knee injury.”

The last time we blogged about such a suit was --- one week ago, when we said that "It remains a mystery how a company whose purpose is to help those with disabilities can turn around and fail to accommodate disabled employees.  ... Can it be that they know their business well enough but do not know the law?”

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You get sued by the three different plaintiffs on the same day all alleging that they were terminated after taking a medical leave.  I was checking out the report of cases filed in New Jersey, which I get on a daily basis because that's how geeky we attorneys are.  In any case, I see three different disability discrimination lawsuits filed by the same attorney and against the same employer. 

This could simply be a case of an opportunistic attorney who found a target du jour, but it is a little unusual to get three simultaneous lawsuits alleging that employees were discriminated against after taking leave for a variety of medical conditions.  It might be more common to see, for example, a claim that all employees who took leave for a particular condition, such as AIDS, were discriminated against.  The theory in those cases is usually that there is a particular hostility to persons with AIDS due to fears of contagion.  Where there is not this common theme or illness to unite the claims, three different plaintiffs with three different medical conditions may show less about a particular bias and more about a misunderstanding management has about its obligations to accommodate disabilities.

It is, of course, entirely possible that the company in these cases fully engaged in the interactive process and either could not continue to accommodate these individuals or that the individuals had legitimate performance deficiencies that justified termination.  However, the normal rule of thumb should be where you see a rash of similar complaints, further investigation into how managers are handling matters is warranted.

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In a new report entitled “Working with Schizophrenia,” the UK Work Foundation finds that only eight per cent of people with schizophrenia have jobs, and that 7 in 10 of them experience “severe discrimination” because of their disability.   This means that tens of thousands of people with schizophrenia are left out of the workplace.  

The Independent states that the report “blames a lack of understanding, stigma, fear” towards people with schizophrenia and urges “government action to prioritise work as part of the recovery for those with mental illnesses.” 

Indeed, the report notes that “People with schizophrenia in paid employment are over five times more likely to achieve remission from their condition than those who are unemployed or in unpaid employment.” 

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A Chinese job applicant who is HIV-positive became the first person ever in China to receive a damages award (45,000 yuan, or £4,600) for the employer’s refusal to hire him because of his condition.   

According to the Guardian, about 780,000 people in China are HIV-positive or have AIDS, and face intense social stigma. “Experts say that discriminatory hiring practices based on pre-employment health checks will likely remain a problem in China, especially for companies in highly-coveted sectors that can afford to be picky about who they hire.”

Geoff Crothall, communications director at the Hong-Kong based China Labour Bulletin, said that these health checks are "a kind of legacy from the time when there was a significant imbalance between supply of labour and demand for labour.  The checks that they insisted workers go through were based on a lot of fear and misunderstanding about the effects of having somebody with a quote-unquote contagious disease in the workforce (emphasis added)."

We just wrote how employers can get into trouble if they consider “fears, myths and stereotypes” in their hiring or employment practices.  Apparently, China has a lot longer way to go.

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In the November 2012 election, Massachusetts voters overwhelmingly approved a ballot initiative to legalize medical marijuana.  The law went into effect on January 1, 2013.

Massachusetts now joins 17 other states and Washington D.C. in legalizing medical marijuana use.  We previously wrote about some of the difficulties employers face under those other laws (See October 14, 2011 post "But I Have a Prescription for that Marijuana Dude").  This new law presents similar issues.

Under the new law, there is an exception that says that the law does not require accommodation of on-site medical use of marijuana in any place of employment.   The law is silent, however, regarding employer's continued use of drug tests and the attempts to rely on a positive test for marijuana.  Presumably, it will be interpreted to also mean that employees cannot be under the influence at work, but that remains to be seen once the regulations are implemented and the first legal challenges are made under the law.

In the meantime, an interesting part of the law is the "personal caregiver" Section 4 which states that a personal caregiver cannot be punished under any law or denied any right or privilege for possessing marijuana for the use of a patient.  Employers who provide health care services, such as home health aids and hospice workers, need to be aware this may mean that you cannot discipline an employee who is found to be in possession of marijuana at the workplace.

High times indeed.

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One in seven people suffer from migraines, ranging from “nuisance” headaches to a debilitating condition that one UK lawyer said was “protected by law as a disability.”   Yet more than one third of migraine sufferers claim to have experienced discrimination at work due to employers failing to make reasonable workplace adjustments.

The Migraine Trust, “the health and medical research charity for migraine in the United Kingdom,” conducted a survey and found that almost one half of migraine sufferers said that  they were unfairly treated at work because of the absences that their condition required them to take. Moreover, 30% claimed to have been disciplined as result of their condition, with 21.7% having been fired because of it.  Perhaps 25 million days are lost yearly in the UK from work or school because of such absences.  

The Migraine Trust’s free Employment Advocacy Toolkit is a good resource for both migraine sufferers, and management and HR departments. 

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The EEOC announced today that it has settled what it called a “historic” class action suit under the Americans with Disabilities Act (ADA) against Interstate Distributor Company for a whopping $4.85 million. The suit alleged that pursuant to the company’s “maximum leave” and “no restrictions” policies, Interstate Distributor denied reasonable accommodations to hundreds of employees and fired them.

The challenged company policies was quite clear, and quite illegal. Under the maximum leave policy, any employee needing more than the maximum 12 weeks of leave was fired – no questions asked and no reasonable accommodations discussed. Under the no restrictions policy, an employee with a medical restriction was refused a return to work and, again, no questions were asked and no reasonable accommodations discussed.

An EEOC attorney stated that "This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities."

We blogged this week that “company policies are great and desirable,” but that they cannot be discriminatory!
 

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On July 2d we wrote that only one state – Michigan – and only 6 cities prohibit discrimination based upon physical appearance or obesity, but noted that a few courts have taken the position that obesity is a “disability” under the expanded ADA definition.

Apropos our recent blog, it has just been reported by the EEOC that BAE Systems Tactical Vehicle Systems, a Virginia-based military vehicle manufacturing company which had been sued under the ADA by the EEOC on behalf of an employee who was fired allegedly because he was “morbidly obese,” has entered into a consent decree and has agreed to pay the employee $55,000 and provide six months of outplacement services.

The fired employee weighed 680 pounds when employed (but now weighs about 350 pounds), but was alleged by the EEOC to have been qualified to perform the essential functions of his job, and to have been denied any reasonable accommodations by his employer.

Although the EEOC’s lawsuit was based upon the ADA, and not upon a law that explicitly bans discrimination against person who are obese, we once again commend our readers to an important new working paper drafted by a Vanderbilt University academic which suggests that laws which make the obese a protected class are more effective in combating such discrimination than treating obesity as a disability under the ADA.
 

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Under the ADA, a qualified individual cannot be discriminated against based upon his “disability.”  A disability is defined as a physical or mental impairment that substantially limits one or more major life activities. 

Courts have held that to be considered a disability, each impairment must be considered on a case-by-case basis -- there is no “one size fits all” to determine whether it is a defined disability. 

A recent federal case is interesting because the employee with diabetes claimed that his condition prevented him from working night shifts, because it interfered with his recognized major life activity of eating; he claimed that it affected his eating habits and dietary regimen which was necessary to control his diabetes. 

However, medical testimony in the case demonstrated that the employee was capable of maintaining his required dietary regimen whether he worked days or nights, as long as he stuck to his established regimen of meals, rest and medication. The employee’s implicit argument, however, was that because his diabetes could be a debilitating condition with serious health consequences if he did not follow his dietary regimen, then his diabetes should be considered a disability under the ADA.    

The Court disagreed. It held that the employee’s argument was hypothetical, and not in the nature of the required case-by-case analysis. It stated that when and under what conditions diabetes is a disability under the ADA is matter of degree, and the “modest dietary measures” which the employee must take to mitigate the effects of his condition must be considered. 

Accordingly, the Court concluded that “no genuine issue existed as to whether his impairment substantially limited his eating,” and therefore he is not disabled under the ADA’s definition of the term.       

What is the takeaway from this case? Its that even a serious and life threatening illness and impairment such as diabetes may not always be considered a disability under the ADA for purposes of employer accommodation. 

It all depends.  

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That’s right, readers – a court has actually held that an applicant for employment does not have a viable claim for disability discrimination under the ADA if the prospective employer fails to hire him because of his prior conviction for possession with intent to sell heroin and cocaine. Shocking, huh?   

We are being a little facetious, of course, since this federal appeals court decision is self-evident. However, we think that its is blogworthy nonetheless to illustrate a few points. 

First point – anyone can file a lawsuit and sue anyone about anything no matter how frivolous, especially a pro se litigant, which is someone (such as the plaintiff here) who files a lawsuit by himself without an attorney.  So don’t be alarmed if you too find yourself someday at the wrong end of a summons – the case may very well lack any merit whatsoever and be dismissed quickly.

Second point – with a pro se litigant, a court is likely to bend over backwards to make sure that his rights are protected. The court in this case did this by reviewing all possible claims that could be read into the plaintiff’s inartful complaint. The court reviewed the elements of an ADA claim, and found that the plaintiff did not allege that he had the required physical or mental impairment necessary to demonstrate a disability.  

The court next reviewed claims under Title VII, which plaintiff raised for the first time on appeal – he claimed that defendant’s alleged failure to hire him because of his criminal conviction was discrimination not only under the ADA but also under Title VII.   The court correctly ruled that “we do not consider claims presented for the first time on appeal.” However, in true “bending over backwards” fashion, the court still considered plaintiff’s allegations under the standards of Title VII. 

The court stated (again correctly) that Title VII indeed prohibits any employment practice that causes a “disparate impact” on members of a protected class, and noted that it had previously held that an employer who refuses to hire because of a prior criminal conviction may run afoul of Title VII if the employer’s policy has a disparate impact on a protected class. However, the court found that plaintiff in this case did not allege that he was, in fact, a member of a protected class.  Case dismissed.

Last point – just as anyone can file a lawsuit, no matter how frivolous, it is also true that a court can, at least in the initial stage of a lawsuit, read some potential legal claim into the allegations in the complaint that will permit a plaintiff to go forward with the case. So don’t ignore a summons, and make sure that it is dealt with professionally.    

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Please visit our California Employment Law blog entry by our colleague Jeff Polsky for a discussion of the June 8, 2011 EEOC meeting at which there was a discussion of issues surrounding leave of absence as a reasonable accommodation for disabled employees.

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Under the Americans With Disabilities Act (“ADA”), an employer cannot discriminate “against a qualified individual on the basis of disability.”   A person “currently engaging” in illegal substance use is not “qualified” under the ADA.  However, the ADA specifically exempts a person who, for example, has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs.

The question has often arisen for employers as to when a person is no longer engaging in the illegal use of drugs, since many people after completing a rehab program cease such use only to relapse, and it is not at all clear when a person is permanently “off” drugs as opposed to merely engaging in one episode after another.

A recent case discussed all the approaches taken by courts to answer the question which is asked by employers – when is it OK not hire such a person? The Court concluded that an employer should consider many factors – such as the severity of the problem, the relapse rate for the substance being abused, the level of responsibility given to the employee and level of competence required for the job, and past performance of the person.   

The central question that an employer must ask herself is - can we reasonably conclude that the substance abuse prevents the person from performing the essential functions of the employment position?    

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On March, 24, 2011, the United States Equal Employment Opportunity Commission (“EEOC”) issued its Final Regulations (“Regulations”) to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).  The new Regulations tend to simplify the determination of who has a disability and in accordance with the ADAAA’s broader definition of “disability” make it easier for employees to establish that they are protected under the ADA. Under the ADAAA Disability is still defined as:

• a physical or mental impairment that substantially limits one or more major life activities (“actual disability”);
• a record or past history of such an impairment (“record of disability”); or
• being regarded as having a disability (“regarded as disabled”).

But the ADAAA and the Regulations state that that the term disability should be interpreted in favor of broad coverage of individuals. In addition, there are some key provisions of the Regulations that will likely lead to an increased number of disability claims stemming from a broad range of employees.  

Expanded definitions of individuals with an "Actual Disability" or a "Record of"

There are three key ways that the new Regulations will afford coverage to more individuals under the first two prongs of the ADA.  They are as follows:

1.  Lowering the threshold for determining if an employee is substantially limited in a major life activity.

• The Regulations specifically state that demonstrating that an employee is "substantially limited" should not be a demanding standard;
• No scientific, medical, or statistical analysis required for an employer to compare the individual with other members of the general population;
• Positive effects of mitigating measures, such as prosthetics, implantable hearing devices, mobility devices, etc. are ignored; and
• An individual who is, despite a physical or medical condition, able to perform at a high level, may still be disabled as the focus is not on outcome they can achieve, but rather on whether the disability substantially limits a major life activity.

2.   Another major change in the Regulations is that they reverse prior case law and specifically state that temporary impairments are protected:  “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” and within the protections of the ADA. In addition, episodic conditions are now covered, even if in remission, if the impairment “would substantially limit” a major life activity in an active state. Further, the Regulations provide a non exhaustive list of episodic impairments which are statutorily covered:

• hypertension,
• asthma,
• epilepsy,
• multiple sclerosis, and 
• psychiatric disabilities such as bipolar disorder and post-traumatic stress disorder,
   

3.  Per Se Disabilities -- Although the EEOC encourages employers to conduct an individualized assessment when determining if an individual is disabled, the Regulations also list various conditions that “in virtually all cases, result in a determination” of disability. The list includes:

•  deafness,
• blindness,
• autism,
• cancer,
• diabetes,
• HIV,
• multiple sclerosis,
• partially or completely missing limbs,
• serious mental disorders such as bipolar disorder,
• obsessive compulsive disorder, and
• post-traumatic stress disorder.

Expanding “regarded as” prong

The ADAAA also expressly increased the coverage for individuals who are “regarded as disabled”, prohibiting discrimination based on an employer’s alleged perception of an impairment, even if that impairment is not perceived as an impairment that substantially limits a major life activity. An employee who requires an accommodation or who was denied an accommodation can not proceed under a “regarded as” standard. Rather, an employee who is arguing an employer should have made an accommodation, must be able to prove either that they have an actual disability or have a record of such disability.  Employees with minor restrictions could be protected and could pursue an ADA claim for being “regarded as” disabled.

Employers can take solace in the fact that they are not required to provide reasonable accommodations to those “regarded as” having a disability, or for those disabilities which are transitory and minor. The ADAAA defines “transitory” as lasting less than six months. However, there is no definition in either the ADAAA or the Regulations as to what is meant by a “minor” disability.

Looking Forward:

The Regulations and the ADAAA amendments they implement appear to make it easier for employees to qualify as disabled under the ADA, therefore businesses should act strategically to mitigate their ADA exposure. Focus must shift from debating whether an individual is disabled and more on the possible accommodations for disabled employee. Because of the potentially significant liability exposure, employers will generally want to consult with qualified legal counsel when confronted with any employee disability issues. In addition, employers will want to seek assistance in reviewing and updating their organization’s employment practices and/or employee policies in response to the EEOC’s Regulations. 
 

(This entry was in large part researched and written by my colleague Todd A. Palo, Esq., to whom I offer my thanks).

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Last week, we posted about the new ADAAA regulations that significantly expand the definition of who is disabled under the Americans with Disabilities Act.  Employers in New Jersey may not have paid too much attention to the ADAAA hullabaloo because the New Jersey Law Against Discrimination already provided the broad coverage now found under the ADA. 

However, New Jersey employers should take notice that proposed amended regulations do expand when an accommodation must be made for an employee that is disabled.  The official public comment period on the amended disability regulations expired on March 19, 2011.  As of now, there is no indication when the amended regulations will be published or if there will be any significant changes to the proposed regulations.  If passed the amended regulations will impact employers in two ways:

1. Changes the definition of undue hardship -- the amended regulations continue to provide that one of the factors to be considered when deciding if an accommodation causes an "undue hardship" is the cost to the employer.  However, the amended regulations specifically note that when looking at the cost, the employer must also consider whether there are available tax credits and deductions and/or outside funding that could be available to the employer for either employing the disabled person or to help pay for the requested accommodation; and
2. Limits the Availability of the Public Hazard Defense -- It is currently the law that where an employee with a disability poses a safety risk to the employee or others in the workplace, the employer need not hire the individual and may be justified in terminating the employee.  The amended regulations limit the use of this defense significantly by stating that this is only the case "where the hazard cannot be eliminated or reduced by reasonable accommodation."

The first change will definitely mean that there are more times that an employee has to be accommodated.  This is not surprising given the historical focus on increasing protections for disabled persons. 

What is concerning is the limitation on the public hazard defense.  If the regulations are passed as proposed, employers will find themselves in the classic Greek dilemma -- between a rock and a hard place.  New Jersey law would certainly impose liability on an employer where an employee hurts another person on account of his disability and the employer knew that the employee posed a risk.  However, the proposed regulations would make it so that the risk is not a defense if a reasonable accommodation could reduce, but not eliminate, the risk.  Employers who decide that even though risk of harm is reduced by a reasonable accommodation, the safety risk to the public is still too great, will find themselves possibly unable to defend a disability discrimination case where they terminate the employee.  

We will keep you posted on when and what the final regulations say.

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The ODEP's National Employer Technical Assistance, Policy, and Research Center (“the Center”) has launched a website to assist employers in the recruitment, hiring and retention of employees with disabilities.

A self proclaimed “one stop resource for private and federal employers seeking to recruit, hire, and retain qualified employees with disabilities,” the Center was established to provide free, confidential consultation, training, and support to assist employers in expanding their inclusion and diversity efforts by integrating employees with disabilities in the workplace.

The new website, furthers the Center’s goal of education and inclusion by providing among other things, links to sister organizations and a database of pre-screened student and recent graduates with disabilities seeking internships and/or permanent employment.

However, before you implement any policies or changes based on the information gather at this or any other website, please review it with counsel to ensure you are covering all the bases.
 

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A recent commentator noted that according to surveys "weight bias" is widespread in employment, with some reporting that within the continuum of employees who were overweight to severely obese there was a 12 to 100 times more likelihood of discrimination.   Only one state - Michigan -outlaws weight discrimination in employment, as do a small number of municipalities.  

Some plaintiffs, as well as the EEOC, have also taken the position that weight discrimination may violate the Americans With Disabilities Act ("ADA"), if, for example, the employee's weight substantially impairs a major life activity.  Moreover, it may be coupled with conditions caused or exacerbated by obesity, such as hypertension or diabetes, which have been held to be disabling.    

Another related area of the law that is still undeveloped is so-called "beauty bias," or "appearance discrimination" -- bias one way or another based upon appearance, which, again, surveys show exists in the workplace to a large degree.   More on that later!  

Should employment discrimination based upon weight or appearance be illegal? 

Please give us your comments!

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The now-playing Mark Wahlberg/Christian Bale movie "The Fighter" celebrates the "Pride of Lowell," but a recent court decision focuses on a different fighter – a firefighter. On December 13, 2010, a trial court awarded a Lowell, Massachusetts firefighter $350,000 under the state's Fair Employment Practices Law after a jury found that the city had discriminated against him by refusing to rehire him due to his asthma.

James McLaughlin was a fire captain on the force for 23 years, but was advised to retire in 1997 when his asthma flared up after fighting a fire. Three years later, his condition improved and, he sought to be reinstated to a vacant captain's position. Initially, a three-member medical panel unanimously found McLaughlin fit for duty. Later, one member reversed his vote after the city said McLaughlin's possible use of an inhaler at a fire would violate fire department policy. Specifically, the city said that the use of an inhaler would violate a rule that prohibited firefighters from removing protective gear when fighting fires. McLaughlin argued that the inhaler rule was fabricated and also claimed that there was no evidence he actually would need an inhaler in the future. The jury rejected the city’s cited “safety concerns” and awarded McLaughlin $400,000, which was reduced to $350,000 when the jury found that McLaughlin had failed to mitigate his damages.

Employers routinely face challenges in accommodating disabilities, especially in safety-sensitive positions. The McLaughlin case is a reminder to employers that the mere fact that an employee has a physical disability and a high-risk, physically demanding job, does not necessarily create a safety-risk. Employers should tread carefully when making accommodation decisions and should rely on actual medical evidence regarding the employee’s restrictions rather than assumptions about limitations the employee may have.

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