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!

 

Last January, we posted about a newly-filed EEOC lawsuit which alleged that a  nursing care facility offered two part-time positions to an applicant who is deaf (dietary aide/assistant cook).  The claim was that when he was called in for a follow-up interview with different managers he was “grilled about his ability to communicate,” after which he was informed that the facility had “decided to pursue more experienced candidates.”

health care facility : Background concept wordcloud illustration of healthcare glowing light Stock Photo

Now the employer has agreed to pay the price — $75,000 in settlement — for failing to judge job applicants with disabilities “on their ability to do the job and [] not be rejected based on preconceived, unfounded notions about their limitations,” as an EEOC attorney put it.

It’s been awhile since we used our “shooting fish in a barrel” mantra as a way of describing the EEOC’s targeting of heath care providers for disability discrimination claims under the Americans With Disabilities Act (“ADA”).”   We zero in on all lawsuits filed by the EEOC against medical professionals and health care facilities for alleged violations of the ADA, and have suggested many times that the EEOC targets these facilities for disability discrimination claims likely because they are fairly easy marks, and make good PR.

In fact, a good many, if not most of the ADA case filings we have seen recently are against medical or health care facilities.   Think about it, because the EEOC does — how do you suppose the public reacts to doctors and clinics, there to treat the sick and injured, being sued for allegedly discriminating against their own employees or applicants who are sick or injured?

The EEOC has said many times that:  “Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).”

So, once again, health care providers must be extra careful when it comes to the ADA — train, train, train your employees well!

 

 

On March 24, 2013 we commented that “stammering” is  a  “speech disorder in which the flow of speech is disrupted by involuntary repetitions and prolongations of sounds, syllables, words or phrases as well as involuntary silent pauses or blocks in which the person who stutters is unable to produce sounds.”

But is it a disability as understood under the Americans With Disabilities Act, and amendments?  Two readers have good comments.

Kailee Goold, an employment layer in Columbus, Ohio:

“In most cases, stuttering will be a disability.  A disability is an impairment that significantly impacts a major life activity. The ADA includes “speaking” and “communication” as a major life activities. So, if the stutter significantly affects one’s ability to communicate, it will be a disability.

I recently gave a presentation on the broadening scope of “disability” under the ADA Amendments and what it means for companies — i.e., more focus on the interactive process. To see the slides and my interactive process flowchart, visit my microsite: http://ow.ly/uXlog.”

Geoffrey Mort, a NYC employment lawyer:

“I don’t know of any cases on this issue, but agree that stuttering — as it does substantially limit the major life activity of speech — is in many cases a disability, particularly in view of the ADA Amendments’ more liberal view of “substantially limits.”

With a substantial number of jobs, stuttering would not be an impediment to carrying out the position’s responsibilities. But, if a job requires, say, making verbal presentations to clients, it’s difficult to imagine what reasonable accommodation would allow one to effectively do that.”

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26736791_sThe headline above says it all – need we repeat out “low hanging fruit” or “fish in a barrel” mantras?   Or should we let the EEOC’s press release do it for us:  “Once again, an employer involved in the health care field has impermissibly allowed fear and bias to enter into the hiring process. The ADA clearly prohibits covered employers, including those staffing health care positions, from refusing to hire someone based on disability.”

This time a Pittsburgh-based staffing service for nurses and other health care professionals with 360 offices nationwide refused to hire someone who already received an offer contingent upon completion of a health status certification.  the certifucation showed his HIV-positive status and his offer was withdrawn.  He was cleared to work, though, in a position of sitting with patients at a VA medical facility.

We said recently appropos another such case that “the EEOC seems to be saying that it will ‘challenge’ health care facilities in particular for acting as if they are above the law or feeling invulnerable simply because they ‘do good work.’”

Our takeaways today:  (1) the EEOC is gunning for health care and medical facilities which may have violated the ADA (the “Americans With Disabilities Act”); (2) staffing companies also seem to be in the EEOC’s cross-hairs; and (3) don’t violate the ADA!

 

On November 1, 2012 we reported that “A strategic enforcement plan (“SEP”) has been drafted by the EEOC which currently has three guiding principles: (1) targeted enforcement; (2) an integrated approach to public sector and private sector enforcement; and (3) accountability.”

We described what two EEOC officials told a PLI audience as to what areas the EEOC intended to target in its future litigation.  Given the EEOC’s four-year enforcement plan to attack “systemic employment discrimination,” the EEOC said that it would file more suits relating to:  vulnerable workers (i.e., immigrants and migrants); emerging legal issues under the ADA Amendments Act and ADA accommodations, discrimination against members of the lesbian, gay, bisexual, and transgender (“LGBT”) community; accommodation for pregnant workers; sexual harassment; Genetic Information Nondiscrimination Act (“GINA”) cases; and the use of criminal records in hiring.

Anyone who has read our blog since then knows that the EEOC has, indeed, brought lawsuits in each of these areas.

Now that the EEOC has just closed the books on fiscal year 2013, it appears that, in actuality, of the lawsuits filed in the last year by the EEOC, two areas stand out: more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims.  Religious discrimination cases were also noteworthy.

Got that employers?  The vast majority of recent EEOC lawsuits have dealt with ADA ,and sex and pregnancy discrimination claims.

Don’t say we didn’t warn you!   

On March 13, 2013 we cautioned that:

“The EEOC is serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA) – very serious – especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child. We have repeatedly issued this warning, and have cited new case filings or settlements to support our concerns.

Take this seriously … because the EEOC has made obtaining not just monetary damages but also “targeted, equitable relief” – such as all sorts of injunctions — one of its top priorities … This means that you could be scrutinized closely by the EEOC and/or the Court for years.”

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Law360 published an interview yesterday with the EEOC’s General Counsel David Lopez in which he candidly predicted the areas of the anti-discrimination laws in which the EEOC will be filing future lawsuits.  First, he said, he wanted to see more Equal Pay Act cases, as well as more age-related cases, given the aging population.

Additionally, he cautioned employers that pregnancy discrimination cases, “which are pretty easy and straightforward,” are on the EEOC’s radar (as well as retaliation cases).

As if to underscore his cautionary message, yesterday the EEOC sued a Holiday Inn franchisee in Mississippi for alleged pregnancy discrimination.  The EEOC charged that the company hired a woman as a desk clerk and when it found out on her first day that she was pregnant, she was fired in favor of another woman, who was not pregnant.

Question:  we have not yet seen the complaint, but we wonder how the company knew (or the EEOC for that matter) that the replacement clerk was not pregnant – did they ask her?

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P.S.  G.C. Lopez also noted that the increase in disability cases filed by the EEOC over the last 3 years was “probably by design,” because he wanted to “really give life” to the ADA amendments.

See EEOC v. Jiji Inc., 3:13-cv-00212, N.D. Miss.

The human body is a frail vessel, prone to defects, injuries, and limitations.  Nonetheless, employers must negotiate the thicket of illnesses, injuries, and all manner of medical conditions which their employees suffer ever mindful of the changing and complex rules of the Americans With Disabilities Act (“ADA”).

Issues such as what constitutes a physical or mental impairment, what “substantially limits one or more major life activities,” or, indeed, what is a “major life activity” must be dealt with, and reasonable accommodations must be made – assuming an employer knows what is considered  “reasonable” under the circumstances.   A recent court decision illustrates the complexity of the situation.

A “pharmacy technician” in a Florida store, although born deaf in one ear, was nonetheless employed satisfactorily answering the phone, dealing with customers, filling prescriptions, and working with the store pharmacists.  Unfortunately, she required cancer surgery on her good ear which caused her to experience sufficient post-operative pain that she could not hold the phone to the good ear.

When she came back to work she tried using a speakerphone, but had to abandon that because of customer confidentiality concerns.  She was able to devise a way to put the phone handset to the side of her head and could satisfactorily use the phone to accomplish her job duties.   The company was apparently unhappy with this, and for some reason made her take a hearing test.  They learned nothing new – that she was deaf in one ear, had normal hearing in the other ear, but required, according to her doctor’s prescription, pain management care for the good ear.

The company, however, never attempted to accommodate her, by, for example, letting her use the already tested “headset to the temple” arrangement, but instead placed her on a leave of absence, and then fired her. 16126490_s

She sued under the ADA, and state law.  The Court denied summary judgment to the company, holding that she had an “impairment” and was “disabled” under the ADA:

“Not only is [she] deaf in her right ear, but she has neuropathic pain in her left ear.  … an impairment that is more severe and limiting than either impairment on its own. … [She] claimed her impairment has affected her ability to sleep, dress, groom, and touch anything to her ear.  [She] has submitted evidence that, when taken in a light most favorable to her, suggests she has substantial limitations in several ‘major life activities’ under the ADA, including sleeping, hearing, communicating and working.”

The Court concluded that in light of the ADAAA (the broad ADA amendments) and for purposes of summary judgment, “[she] has presented enough evidence to suggest she is actually disabled. …”  And contrary to the claim of the company that she was not a “qualified individual” with a disability (i.e., someone who can perform the essential functions of an employment position, with or without a reasonable accommodation), the Court found that a reasonable jury could find that she was able to perform the essential functions of her job with an accommodation, and thus is a qualified individual.

Takeaway:  “Reasonable accommodations” may take strange or unorthodox forms, but they are required under the ADA if they do not create an undue burden on the employer.

 

 

With the recent, long-awaited publication on May 18th of the 900-plus page DSM-V, the so-called “Bible”  of the American Psychiatric Association (its $100,000,000 publishing baby), there has been the usual battle between and among psychiatrists, psychologists and other mental health professionals over its content.  It adds many diagnoses and deletes others.  It renames some (“Gender Idenity Disorder” has become “Gender Dysphoria” with a flick of a pen, or a click of a keyboard).

Should “caffeine-withdrawal” be classified a psychiatric disorder?    Should “parental alienation syndrome?”  “Sluggish cognitive tempo?”  “Excoriation” (i.e., skin picking)?

The answers are found below.*

The National Institutes of Mental Health will no longer use the DSM-V’s diagnoses in its research projects. Some critics say that it has become a sales manual for the drug companies, and others, such as The Daily Kos, says of the DSM-V:  “Psychiatric junk science based on subjective ‘diagnoses’ represents a form of medicine that went out in the 20th century in every other part of medicine.”

So why do we write about it here?  Well, think about it.  With the addition of “caffeine-withdrawal syndrome,” will limiting an employee’s trip to the coffee machine be a violation of the ADA?  Will every new diagnosis become a court case?

The next interesting ADA case is limited only by the imagination of a shrink, or plaintiff’s lawyer.

*Answers to quiz:  The first and last of the above disorders were included in the DSM-V.  The second and third were not.  Give yourself a point for each correct answer.

 

Hearing impairment has garnered some attention these days as it relates to employment discrimination under the ADA.  Yesterday we wrote about a new EEOC lawsuit on behalf of a hearing-impaired employee who was not given the accommodation of an American Sign Language interpreter.  

The EEOC also announced a new suit against Toys "R" Us on behalf of a deaf applicant who the company refused to accommodate by providing an interpreter and then failed to hire. An EEOC attorney repeated the EEOC mantra that “It’s not only bad business to forgo hiring a qualified  employee simply because of fears, biases or stereotypes against people with disabilities, it’s also a violation of the law."    

Now comes news that a federal court in Pennyslvania has ruled that deafness in one ear does not constitute a disability under the ADA.  Plaintiff claimed that she "became totally deaf in one ear and had balance problems due to surgery removing a brain tumor. … [and] was able to continue performing her job functions without accommodation, but had difficulty concentrating."

 

The Court said that the plaintiff “testified that her deafness in her left ear was not a distraction … and she did not mention any specific instances where her hearing loss caused a problem other than that she ‘didn’t hear some things.’”  Therefore, this hearing impairment in one ear was not a disability under the ADA, even under the expanded ADA Amendments Act.

 

Is this evidence of a new foray by the EEOC and plaintiffs into employment discrimination on the basis of hearing impairment?

 

 

The EEOC announced today the settlement for $92,500 of a disability discrimination lawsuit against University of Maryland Faculty Physicians, Inc.

The complaint claimed that an employee with Crohn’s disease whose job included answering phone calls and scheduling appointments, was undergoing medical treatment and couldn’t work for two weeks, and when she asked for one more day of medical leave she was fired.

The EEOC contended that providing her with the additional day of leave was a reasonable accommodation, and her firing pursuant to a company attendance policy violated  the ADA and its amendments (the “ADAAA”), “because it did not provide for exceptions or modifications to the attendance policy as a reasonable accommodation for individuals with disabilities.”

The District Director of the EEOC stated that "It is not only a good business practice to provide reasonable and inexpensive accommodations that allow employees with disabilities to remain employed, it is required by federal law."