Disability Discrimination

If you were a critical care hospital would you fire a nurse with cancer who asked for an accommodation to get chemotherapy?  Even if you had meritorious grounds, would you do it, given the stark appearance of an ADA violation, as well as the horrendous publicity?

We wrote about such a case in a post a year ago called “Critical Care Hospital Fires Nurse Who Asked For Chemo Accommodation.” It discussed a newly-filed EEOC suit against a North Carolina full-service critical access hospital for refusing to accommodate a registered nurse’s need for cancer chemo treatments, and then firing her.

We asked then:  “What were they thinking?”

cancer care : Mid adult woman talking to doctor about her diagnosis

We don’t know, but after a year of litigation with the EEOC, the facility has just agreed to a settlement of $85,000.

It was only a matter of time.

And an EEOC attorney underscored our constant warning that the EEOC was targeting health care facilities for alleged ADA discrimination:  “One would hope that hospitals and other health care facilities would understand and respect an employee’s need for an accommodation resulting from cancer treatments.”

The EEOC Has Targeted Medical Facilities For ADA Violations For A Long Time

We have a particular penchant for, among other things, tracking new cases filed (or settled) by the EEOC accusing medical and health care providers of discriminating against people with disabilities (mainly because, as employment attorneys, we are amazed at how obtuse and oblivious some employers can be).

In that same post last year we noted that the EEOC had also just sued a Michigan operator of a chain of assisted living facilities for violating the ADA.  The claim – after hiring an administrator of the new facility, the company learned from her at her physical examination that she suffered from epilepsy.  What did they do?  Fired her the first day that she worked.

And then, “as a postscript,” we mentioned that the EEOC had just reported that a second North Carolina health care facility agreed to pay $51,000 to settle an ADA suit brought on behalf of a certified nursing assistant with asthma who was required by a new company policy to supervise residents during smoking breaks, which made her asthma worse. She submitted a doctor’s note and requested to be excused from this chore.

She was fired.

asthma and smoking : smoking causes disease in children

Do Not Succumb To “Baseless Myths, Fears And Stereotypes About Persons With Disabilities 

We cited EEOC attorneys who said that the EEOC “will vigorously pursue violations of the ADA when employers base their decisions on baseless myths, fears and stereotypes about persons with epilepsy,” and that “Employers must be sensitive and reasonable about an employee’s complaints about a workplace hazard to their health, and health-related facilities should be especially cognizant of this.”

We have often cautioned employers about succumbing to “myths, fears and stereotypes” when it comes to people with disabilities.  See, for example, our post about an army veteran with a prosthetic hand.

Takeaway

When will employers listen to us?

 

Another employer has settled a GINA class action brought by the EEOC – for $187,500.

The EEOC told a Practising Law Institute conference two years ago of a number of workplace issues which it planned to address, one of which was  targeting violations of the Genetic Information Nondiscrimination Act (“GINA”).  The law was new (2009), and few cases had been filed.

What Is “GINA?”

GINA makes it illegal to discriminate against employees or job applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information.

Under GINA, employers cannot, in the hiring process, request such genetic information and family medical history.

genetics : Orange cartoon character with loupe and dna. White background.

The First GINA Lawsuit

The first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA was settled in May of 2013.  The EEOC alleged in that Oklahoma case that the employer refused to hire a woman who had been given an offer of a permanent position because tests it had conducted concluded that she had carpal tunnel syndrome (“CTS”). The company had sent her to an outside laboratory for a drug test and physical, and there she had to fill out a questionnaire disclosing the existence of numerous listed disorders in her family medical history.

According to the EEOC, “[t]he questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family. [She] was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether [she] suffered from carpal tunnel syndrome (CTS).”

Although her own doctor found that she did not have CTS, her offer was revoked because the company’s outside lab indicated otherwise.

genetics : Genetics sign on a white background. Part of a series.

GINA And The EEOC’s Strategic Enforcement Plan (“SEP”)

On May 17, 2013 we reported that in accordance with the priorities in its Strategic Enforcement Plan (“SEP”) (and its promise to the PLI conference) the EEOC filed a GINA class action against a Corning, N.Y. nursing and rehabilitation center, its first systemic lawsuit under GINA.

The EEOC alleged that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.  The case was settled for $110,400.

The New Settlement

The EEOC has just announced that it has settled another GINA class action brought against three California farm suppliers who required job applicants to take physical exams and fill out questionnaires which asked about medical conditions, and the applicants’ family medical histories.

One applicant was required to report disability-related information and family medical history which was unrelated to the job requirements, and ultimately refused hiring “due to his perceived disability.”

Takeaway

An EEOC attorney cautioned employers: “The law with respect to genetic information is relatively new, and this is one of the first cases resolved in litigation by the EEOC in this district.  … Employers need to familiarize themselves on the prohibitions with respect to pre-employment inquiries and maintaining the confidentiality of medical information.”

Another EEOC attorney summed up compliance with GINA:  “There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire. Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”

 

Last week we reported about the EEOC entering into a consent decree settling a disability suit for $30,000.  The suit was against a Minneapolis-area home health care provider for failing to provide a reasonable accommodation to a housekeeping employee who suffered from fibromyalgia and osteoarthritis — and then firing her.

We stressed a few major points which employers should “take away” from this case:
Train your managers and employees in all aspects of the ADA;
Always engage in an interactive process re seeking a reasonable accommodation for employees with disabilities; and
Do not rely upon stereotypical assumptions about people with disabilities.
One of our readers, Suzanne Benoit, a management consultant in Portland Maine, sent in an interesting comment in which she provided some additional helpful “takeaways” and mantras, such as “focus on performance not assumptions.”
She wrote:
“Great information Richard, thanks for posting it. For me, the bottom line is to focus on what is happening inside the office and relate it all to performance, not assumptions. The article also points out that managers and supervisors have to be trained to refrain from assuming or discussing anything about employees who are performing their duties at an acceptable level.
There is another issue in these situations worth noting, though not at issue in this case. In addition to training management, as the article points out, I find that it also helps if all new employees are oriented initially NOT to share information about their illnesses freely with coworkers.
You can’t control this completely but you can let employees know that the company has an obligation to maintain employee privacy regarding all medical conditions no matter how small.

talkative : High angle full length portrait of a loquacious long-winded businessman looking up at the camera talking with his mouth open emphasising the point with his finger Stock Photo

When [employees] share information freely, the employer has less control over what opinions coworkers and supervisors form about the employee’s ability to carry out their duties.

Employees will make assumptions based on very little real data!”

stereotypical : 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

 

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].”

 

 

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.”

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!

 

On October 7th we asked the questions:  Must an employee who needs an accommodation (disability-related) actually request it?   Or must the employer be “clairvoyant” and infer such a request from the circumstances of the case?

We spotlighted a new decision from an Illinois federal court which held that the employer (the US Postal Service) had enough facts to infer an “implicit” request for an accommodation and a need to engage in the “interactive process.”

discussion : Consulting with expert. Two men talking while one of them writing something in clipboard

Our experts opined helpfully, as set forth below:

Marc Brenman, instructor at Morgan State University in Olympia, WA:

“I would exercise caution where there is no self-identification by an employee as a person with a disability or a request for a reasonable accommodation (though no “magic words” are necessary).

The ADA prohibits treating an employee like a person with a disability where there is no disability. The employer should not make assumptions or guesses. In the particular decision cited, the employer had various pieces of evidence that the employee might have a disability.

But without that strong evidence, I’d be reluctant to leap to the reasonable accommodation process. (Unless, as EEOC has noted in pregnancy reasonable accommodation cases, where the employer in effect reasonably accommodates everyone …).”

Christopher Fields, HR consultant in the Greater Memphis area:

“Usage of the work “Must” seems definitive.  The USPS should have made an attempt or an inquiry before terminating the employee. They seemed as if they weren’t concerned at all. So I think employers should make a reasonable accommodation to assist employees.”

Michele Sommer, HR expert, Trumbull, CT.:

Interesting article, Richard. I agree a bit with both Marc and Christopher. I don’t normally leap to making an accommodation, however as part of discussions with employees who are having performance or attendance issues I do talk about what needs to change.

If an employee brings up a medical issue or has a doctor’s note, I do mention that regardless of the reason why they are out, the fact that they are out frequently or without communication is a problem. I then tell them that if they think that their medical condition is the reason for the performance or attendance issues, then they may want to speak with their medical provider and if there was something that they or their medical provider felt that any of us could do to help them be more successful they should document that and get back to me.

That way I wasn’t making a specific offer, but was making it clear that I was open to discussing. And if they said that they didn’t want or need an accommodation, then I would document that as well.”

Marc Brenman added:

“It’s important to note that disabilities don’t have to be “medically related.”  Often there is no doctor involvement.

Second, most doctors aren’t very helpful about what accommodations a person with a disability might need, since they’re not work or job oriented. An exception is the chain of “light duty” cases, and situations where a doctor says an employee has to sit down for X minutes every hour.”

 

Our Canadian employers may be interested that on November 3, 2014, Doug MacLeod of The MacLeod Law Firm in Toronto will be co-hosting a seminar on managing disabled employees.

seminar training : Portrait of a confident senior manager giving presentation to his colleagues at office

As he says:  “There is a perfect storm developing when it comes to managing disabled employees. The workforce is aging and some older workers can’t perform all of their job duties. The level of workforce stress is increasing which is causing more mental illness. The number of recognized mental disabilities is increasing. And new legal obligations are being imposed on employers with respect to disabled employees.”

Among the legal issues he notes that he will discuss are:

1. What is a disability? Is a flu or cold a disability at law? Is an alcoholic or a smoker disabled? You will learn whether or not you are obliged to accommodate these kind of medical conditions.

2. If an employee is disabled then an employer is generally required to bring the person back to work when he can perform some of his job duties unless he cannot perform his essential job duties with accommodation. You will learn how to use job descriptions and physical demand analysis to improve your legal position when it comes to assessing whether a person is capable of performing his “essential” job duties.

3. If a person is not capable of performing his pre-disability job, are you required to offer him alternative employment? For work-related injuries, you will learn your obligations under workers compensation legislation, and for non-work related obligations you will learn your obligations under the Ontario Human Rights Code.

4. Did you know the Ontario Human Rights Commission has a 36 page “Policy and guidelines on disability and the duty to accommodate”, and a 78 page “Policy on preventing discrimination based on mental health disabilities and addictions”. You will learn how the Commission interprets the duty to accommodate and what kinds of policies you should have in place to satisfy the duty to accommodate.

5. Effective January 1. 2016, employers with 50 or more employees must have written individual accommodation plans in place for every disabled employee. You will learn what must be included in these plans.

Click here for more info: http://www.macleodlawfirm.ca/employers/2014/10/the-macleod-law-firms-next-seminar-managing-a-disabled-employee/

A useful seminar!

 

 

Although we frequently write about the Americans with Disabilities Act, we rarely write about Title III of the ADA which requires places of public accommodation to be barrier-free to disabled persons.  Title III of the ADA can be very complicated to understand and as a result claims of violations have become a bit of a cottage industry for some plaintiffs’ attorneys.

There are, to be sure, legitimate claims by disabled persons that they cannot access a building.  However, unfortunately business owners have also discovered that there are certain repeat attorneys paired with the same plaintiff who file dozens of ADA lawsuits.

I once handled a public accommodation case for a client and discovered as we were gathering facts that the case filed against my client was the 82nd lawsuit filed by the plaintiff and his attorney in less than a year period.  Even disability rights organizations have labeled these claims “drive-by lawsuits,” noting that the filing of such lawsuits does not appear designed to make the community more inclusive of disabled persons.

These lawsuits have been roundly criticized by business owners as they are usually filed after the plaintiff’s attorney’s hired expert has gone through the facility and come up with a checklist of supposed violations.  This is often done even where the disabled plaintiff has not actually entered the building. Most public accommodation claims are settled as it is rare to find that there is no violation.  The violation can often be something as simple as a required sign fell down, resulting in a technical violation.

So what is a business owner to do in defending against one of these cases?

  1. Get your own architect — Without an expert in Title III, you may be at the mercy of the plaintiff’s hired gun.
  2. If you are a tenant, check your lease agreement — These lawsuits are usually filed against both the landlords and tenants.  It is important to determine early on who might be liable for the violations.
  3. Evaluate your legal strategy and be aggressive where warranted — If faced by one of these “drive-by lawsuits,” you may want to consider not simply resolving the claim as is done in the vast majority of the cases.  An important note to remember is that in order to prevail, plaintiffs must not only demonstrate that there is a violation, the plaintiffs must also demonstrate that they plausibly intend to return to the place where they previously encountered an ADA violation, or show that there is a likelihood of discrimination should they return to that place.   Where a plaintiff is complaining that one of your multiple locations is not wheelchair accessible and you discover that the Plaintiff has never been in the locations right where he works or lives even though they are wheelchair accessible that may be evidence the plaintiff really does not intend to do business with you.  Since the law is a strict liability statute, once any violation is found, no matter how small, the plaintiff may be entitled to attorneys’ fees, so you will want to be careful before you increase the attorneys’ fees by going through discovery.

26968094_sAnother option where you seem to have multiple filings by the same attorney is to focus on the attorney.  Recently our firm took that tack and opposed the pro hac vice admission of an out-of-state attorney who filed an application to be temporarily admitted in New Jersey.  The federal court judge, who granted our motion and denied the special admission, noted that the Florida attorney seemed to be avoiding the New Jersey bar rules by using this special admission 24 times in a two-year period.  Although this does not mean that a case goes away, making it difficult for serial filers may mean that future claims are less about a quick buck for the plaintiff and his or her attorney and more about addressing serious violations of the ADA.

 

 

The need to accommodate disabled employees is well-established in the US.  The same is true in Canada.

A very helpful article was published by Carissa Tanzola of the Toronto law firm of Sherrard Kuzz, which quickly set out what a Canadian HR person should know – it doesn’t have to be painful, she says.    Take “an individualized approach,” and  “understand the legal landscape.”

She then sets out “the legal landscape” from the prevailing statute (at least in Ontario), through the “four fundamental steps to accommodation,” in easy to understand bullet points.

She provides 7 helpful tips – which we will not re-print here so that you can read them in her own words.

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