Topic: "Discrimination - Disability" | Main
EEOC says Starbucks illegally fired a dwarf
May 18, 2011 by Ross Runkel at LawMemo
The EEOC has sued Starbucks. The claim is that Starbucks hired a dwarf to serve customers, and then refused to allow her to use a stool or small stepladder to serve customers at the counter, and then fired her. Starbucks says they were tying to avoid a danger to customers and employees.
EEOC is asking for punitive damages (wow) plus lost wages, compensatory damages, and an injunction to require Starbucks to formulate policies to prevent and correct disability discrimination.
Here is EEOC's official press release:
EL PASO — Starbucks Coffee Company violated federal law by denying a reasonable accommodation to a barista with dwarfism at its El Paso café and then firing her because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today [May 16].
According to the EEOC’s suit, Elsa Sallard has a physical impairment, dwarfism. She was hired by Starbucks to work in a customer service position July 2009, but was only allowed to train for 3 days before she was fired. The job description for the barista position stated that no prior experience was required. Soon after being hired by Starbucks, Sallard asked to use a stool or small stepladder to perform the essential functions of preparing orders and serving customers at the counter. Starbucks disregarded Sallard’s request and refused to consider her use of a stool or stepladder, the EEOC said. On the same day that Sallard requested the accommodation, Starbucks terminated her employment, claiming that she could pose a danger to customers and employees.
Such alleged conduct violates Title I of the Americans With Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals with disabilities in hiring, firing, job application procedures, advancement, compensation, job training and other terms and conditions of employment. The ADA requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.
“Starbucks has become a virtual icon of modern American culture, appealing to an incredibly diverse customer base,” said Robert A. Canino, regional attorney for the Dallas District Office of the EEOC. “We'd hope that when considering hiring a person with a disability, Starbucks would choose to enhance its brand with the mark of equal opportunity and access.”
The EEOC seeks injunctive relief, including the formulation of policies to prevent and correct disability discrimination. The suit also seeks lost wages and compensatory damages for Sallard and punitive damages against Starbucks Coffee Company. The EEOC filed suit (Case No. 3:11-CV00195-FM) in U.S. District Court for the Western District of Texas after first attempting to reach a voluntary pre-litigation settlement.
“Employers cannot blithely ignore a request for a reasonable accommodation by a qualified individual with a disability,” said Joel Clark, trial attorney for the EEOC. “Starbucks flatly refused to discuss Ms. Sallard’s reasonable request. Instead, they assumed the worst and fired her. The ADA was enacted to prevent that kind of misguided, fear-driven reaction.”
Threats caused by a bipolar disability are grounds for discharge
April 14, 2011 by Ross Runkel at LawMemo
In Wills v. Superior Court (California Ct App 04/13/2011), Wills claimed she was discharged because of her disability (bipolar disorder), in violation of California's Fair Employment and Housing Act (FEHA).
The trial court granted summary judgment for the employer; the Court of Appeal affirmed.
The employer discharged Wills because she sent threatening emails to co-workers.
Wills argued the FEHA prohibits an employer from discharging an employee for workplace misconduct caused by a disability in the same manner as it prevents an employer from discriminating against an employee for having a disability.
The court held that "an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers. In these circumstances, terminating the employee based on the misconduct does not amount to discrimination prohibited by FEHA."
The court rejected the contrary holding in Gambini v. Total Renal Care, 486 F3d 1087 (9th Cir 2007), at least as to conduct involving threats or violence, and followed the holdings of other federal Circuit Courts' interpretation of the Americans with Disabilities Act (ADA).
ADAAA regulations published
March 24, 2011 by Ross Runkel at LawMemo
EEOC's final regulations to implement the ADA Amendments Act (ADAAA) will be published in the Federal Register on March 25.
The regulations are designed to simplify the determination of who has a "disability" and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).
Employers win medical marijuana case
April 15, 2010 by Ross Runkel at LawMemo
"We ... hold that, under Oregon's employment discrimination laws, [the] employer was not required to accommodate [the] employee's use of medical marijuana."
Today, the Oregon Supreme Court resolved a question that has had Oregon lawyers wondering.
Oregon has a medical marijuana statute that decriminalizes the use of marijuana for medical purposes, when prescribed by a physician.
On the other hand, some employers have a zero tolerance policy that provides for discharge for using marijuana, even if off-work, even if for medical purposes.
Now the Oregon Supreme Court has decided that the employers win.
The court found that the federal Controlled Substances Act preempted a portion of the state statute, that the employee was currently engaged in the illegal use of drugs, and the employer discharged him for that reason.
Emerald Steel Fabricators v. Bureau of Lab & Ind (Oregon 04/15/2010)
$90,000 settles intellectual disability case
March 05, 2010 by Ross Runkel at LawMemo
EEOC claimed that an employee at a McDonald's franchise was harassed based on his intellectual disability, and was compelled to quit due to the unchecked verbal and physical abuse.
The suit settled for $90,000 and other relief.
$50,000 settles disability case
March 05, 2010 by Ross Runkel at LawMemo
EEOC claimed that a beverage distribution company failed to accommodate a class of disabled employees by terminating their employment because they needed medical leave.
The suit settled for $50,000 and other relief.
EEOC settles perceived disability cases
March 05, 2010 by Ross Runkel at LawMemo
EEOC claimed that a car dealership reneged on an offer to hire a salesperson only after a urine test revealed he was taking prescribed medication. EEOC said the dealership then erroneously perceived the applicant as too disabled to do the job despite normal medical test results and medical authorization to the contrary.
The suit settled for $32,500 payment to a job applicant and other relief.
EEOC claimed that a construction company fired one of its permanent construction workers because it regarded him as disabled due to his history of liver and kidney problems, including cancer.
The suit settled for $17,000 in lost wages and compensatory damages.
EEOC v. Timken Company charging disability discrimination
February 17, 2010 by Ross Runkel at LawMemo
EEOC has sued The Timken Company, claiming that it refused to hire an employee for a full-time position as a process technician because of her gender and because she is the mother of a disabled child.
Interesting because EEOC is claiming discrimination because the employee associated with a disabled person.
Press release 02/08/2010:
The Timken Company Sued By EEOC For Disability And Sex Discrimination
Federal Agency Charges Manufacturer Violated Federal Law by Refusing to Hire Employee Based on Gender and Association with Her Disabled Child
GREENSBORO, N.C. – The U.S. Equal Employment Opportunity Commission (EEOC) today announced it has filed a disability and sex discrimination lawsuit against global manufacturer The Timken Company. The suit alleges that Timken refused to hire an employee for a full-time position as a process technician because of her gender and because she is the mother of a disabled child.
Timken manufactures precision ball bearings and other friction management and power transmission products. The company employs more than 25,000 employees world-wide.
According to the EEOC’s lawsuit, Timken violated the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 by refusing to hire Carmen Halloren for a full-time position in July 2007. Halloren, whose son is disabled, had worked at a Timken facility in Randleman, N.C., as a part-time process associate for four years. The EEOC charged that Halloren applied for a full-time process technician position, but Timken refused to hire Halloren due to concerns about her ability to work full-time and care for a disabled child.
The EEOC asserted that Timken's conduct violated the ADA, which protects employees and applicants from discrimination based on association with people with disabilities, and Title VII, which prohibits discrimination based on sex. The EEOC filed suit in U.S. District Court for the Middle District of North Carolina (Equal Employment Opportunity Commission v. The Timken Company, Civil Action No. 1:10-cv-00113), after first attempting to reach a voluntary settlement out of court. The suit seeks compensatory damages and punitive damages for Halloren, as well as injunctive and other non-monetary relief.
“Employers must recognize that they cannot discriminate against employees because they happen to be caregivers for disabled children or others with disabilities,” said Lynette A. Barnes, the EEOC's regional attorney for the Charlotte District Office. “The EEOC charges that this is clearly what happened in this case -- Timken discriminated against Ms. Halloren because of her caregiver status. Women who are caregivers must be afforded the same rights and privileges of employment as men and other women who are not caregivers. It’s appalling to think that any employer would penalize the parent of a disabled child -- whether that parent is male or female -- because he or she provides care to a person who has a disability.”
Tina Burnside, supervisory trial attorney in the EEOC’s Charlotte District Office, added, “Under the ADA and Title VII, employers cannot make employment decisions based on stereotypical assumptions that a female employee with a disabled child would have to miss work or could not perform the job because the employee provides care for a disabled person.”
The EEOC enforces federal laws prohibiting discrimination in employment. Further information about the Commission is available on its web site at www.eeoc.gov.
$24,000 disability suit settlement
February 17, 2010 by Ross Runkel at LawMemo
EEOC claimed that a financial holding company denied a hearing impaired employee a transfer to a vacant position for which she was qualified.
The company agreed to pay $24,000 and to provide anti-discrimination training to its staff.
EEOC Press release 02/10/2010:
Branch Banking And Trust To Pay Damages To Settle EEOC Disability Discrimination Suit
Hearing-Impaired Worker Denied Accommodation, Federal Agency Charged
WILSON, N.C. – A major Winston-Salem, N.C.-based financial holding company will pay $24,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had sued Branch Banking and Trust (BB&T), thenation's 10th largest financial holding company, on behalf of a hearing-impaired employee who was denied a reasonable accommodation to which she was entitled under the Americans with Disabilities Act (ADA).
In its suit (EEOC v. Branch Banking & Trust, Civil Action No. 7:06-CV-00071, filed in U.S. District Court for the Eastern District of North Carolina), the EEOC charged that Linda Hewett, who worked for the bank’s Whiteville, N.C., branch as a senior teller, was denied a transfer to a vacant position for which she was qualified and as a result, was forced to resign in October 2003. Hewett had sought a transfer before she resigned because she was no longer able to perform her job due to her progressively severe hearing loss. The EEOC alleged that Hewett was denied reassignment to other vacant positions in which her hearing loss would not limit her ability to perform her job. The case was scheduled to go to trial the second week of February, but the parties reached agreement during a court-hosted settlement conference.
In addition to paying $24,000 in compensatory damages to Hewett, BB&T must take other actions set forth in the consent decree resolving the case, including providing anti-discrimination training to the staff of the banking network of its Southeast Region. Further, the company is enjoined from engaging in further disability discrimination and must report complaints of disability discrimination made at its banking network of the Southeast Region to the EEOC for monitoring.
“Workers with disabilities are productive members of the American workforce,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “Under federal law, employers are required to make reasonable accommodations to enable disabled workers to perform their jobs unless doing so would pose an undue hardship on the employer. If reassignment to an open position for which the disabled worker is qualified is the only available option to keep her employed, the employer must reassign her absent undue hardship.”
The EEOC enforces federal laws prohibiting discrimination in employment. Further information about the EEOC is available on its web site at www.eeoc.gov.
$30,000 disability suit settlement
February 17, 2010 by Ross Runkel at LawMemo
EEOC claimed that a power company fired a new payroll/accounts technician within hours of her first day at work, after her supervisor discovered that her left arm was paralyzed.
The company agreed to pay $30,000.
EEOC Press release 02/10/2010:
Akeena Solar Settles Disability Discrimination Suit
EEOC Obtains $30,000 for Woman With Paralyzed Arm Fired Within Hours of Starting Work
SAN JOSE, Calif. – The Los Gatos, Calif.-based solar power company Akeena Solar will pay $30,000 to a payroll/accounts technician and implement preventative measures to settle a federal disability discrimination lawsuit, U.S. Equal Employment Opportunity Commission (EEOC) announced today.
This resolved the EEOC’s suit alleging that Gladys Tellez, a 44-year-old Latina hired to be a payroll/accounts technician on November 13, 2006, was fired by Akeena Solar within hours of her first day at work the next day, after her supervisor discovered that her left arm was paralyzed. The EEOC’s investigation determined that Tellez was fully qualified and capable of performing the essential functions of the position despite her disability.
Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination against people with disabilities in the private sector and state and local governments. After a neutral investigation conducted by EEOC Investigator Juan Vaca and first attempting to reach a voluntary settlement through conciliation, the EEOC filed the suit (EEOC v. Akeena Solar, Inc., Civ. No. C08-4527 PVT) in U.S. District Court for the Northern District of California.
Under the terms of the consent decree, Akeena Solar will pay Tellez $30,000 in damages, post a notice in the workplace concerning the company’s commitment to complying with the ADA, institute annual training on preventing disability discrimination to staff involved in hiring and recruitment, and to report to the EEOC any disability discrimination complaints that arise for the next three years.
“All too frequently, the mainstream public, including employers, perceive people with disabilities through a filter of upon myths and stereotypes, instead of assessing each person on their own terms,” said EEOC Regional Attorney William Tamayo. “In Ms. Tellez’s case, she was not even given a full day to prove herself. We hope this resolution will encourage employers to give persons with disabilities a fair shot at establishing their individual worth and value at work.”
EEOC San Francisco District Director Michael Baldonado noted, “A truly ‘green’ business will make the most of human resources as well as energy sources. This settlement benefits Akeena Solar’s workforce by ensuring that management is educated to recognize and prevent disability bias.”
According to its web site, www.akeena.net, Akeena Solar is one of the leading designers and integrators of solar power photovoltaic systems for residential and commercial customers in California, New York, New Jersey and Connecticut.
The EEOC enforces federal laws prohibiting employment discrimination. Additional information about the EEOC is available on its web site at www.eeoc.gov.
$6,200,000 paid in Sears ADA suit
February 07, 2010 by Ross Runkel at LawMemo
EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.
The case resulted in the largest ADA settlement in a single lawsuit in EEOC history: $6,200,000.
The funds are being paid out to 235 former employees.
EEOC Press release 02/05/2010:
Court Approves $6.2 Million Distribution in EEOC v. Sears Disability Settlement
235 Former Employees Terminated at End of Workers’ Compensation Leaves of Absence to Share Settlement Proceeds After Participating in Claims Process
CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) today announced court approval of the distribution of a $6,200,000 compensation fund in the landmark Americans With Disabilities Act (ADA) litigation between the EEOC and Sears, Roebuck & Co. The distribution is being carried out pursuant to the terms of a consent decree approved by Federal District Judge Wayne Anderson on September 29, 2009. In its lawsuit against Sears, the EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. The case resulted in the largest ADA settlement in a single lawsuit in EEOC history.
Under the terms of the decree, the EEOC provided claim forms to certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy. The claimants were asked to report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work. Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300. More than twenty claimants were found to be ineligible by the EEOC. As with all EEOC litigation, none of the settlement fund will retained by the EEOC; all of it will be distributed.
“It is a satisfying day indeed when victims finally receive compensation for the wrongful discrimination they have endured,” said EEOC Acting Chairman Stuart J. Ishimaru. “The EEOC is pleased and proud that we fought long and hard on this case to protect the rights of workers with disabilities, and that many Sears employees will now benefit from our law enforcement efforts.”
Chicago Regional Attorney John Hendrickson said, “The Sears case has been a long haul, but now it’s over—this is it. The court has enjoined future discrimination by Sears and approved the amount of money each class member will receive for the particular discrimination he or she suffered. Their day for compensation is here, and as far as the EEOC is concerned, that makes it a good day for everyone involved.”
EEOC Trial Attorney Aaron DeCamp noted that, in addition to the disbursement of settlement funds, the EEOC is seeing positive effects from the consent decree. “As a result of the decree, we believe Sears has an improved workers’ compensation leave process, and it has posted notices regarding the decree. We know that employees have been seeing the notices because we’ve been receiving inquiries as a result. So we think it’s pretty clear that our lawsuit genuinely benefited the employees of Sears and strengthened the company’s human resources processes.”
The lawsuit, filed in November 2004, was assigned to Federal District Court Judge Wayne Anderson of the Northern District of Illinois and Magistrate Judge Susan Cox, and is captioned EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. Judge Anderson entered the order approving the monetary distributions on February 4.
The EEOC litigation team included, in addition to Hendrickson and DeCamp, Supervisory Trial Attorney Gregory Gochanour and Trial Attorneys Ethan Cohen, Deborah Hamilton and Laurie Elkin.
The EEOC Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.
$62,500 disability discrimination settlement
February 07, 2010 by Ross Runkel at LawMemo
EEOC claimed that a funeral chapel refused to allow an amputee who had successfully worked for the company for a year and nine months to continue working as a secretary once she required the use of a wheelchair.
The suit settled for $62,500 and other relief.
EEOC Press release 02/03/2010:
Attrell’s Funeral Chapels Pays $62,500 to Settle EEOC Disability Discrimination Lawsuit
Amputee Fired Because of Disability, Federal Agency Charged
SEATTLE – A Newberg, Ore., funeral chapel will pay $62,500 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to the EEOC’s suit, Attrell’s Newberg Funeral Chapel violated federal law when it refused to allow Barbara Jackson, an amputee who had successfully worked for the company for a year and nine months, to continue working as a secretary once she required the use of a wheelchair. Attrell’s claimed that Jackson could not carry out the duties of the secretarial position if she could not walk, and noted that having an employee in a wheelchair might make their grieving clients feel bad. After Attrell’s fired her, Jackson suffered financial hardship due to difficulties in finding a comparable job, the EEOC said.
Such alleged conduct violates the Americans With Disabilities Act (ADA). The EEOC filed suit (EEOC and Jackson v. S.C.C., Inc., dba Attrell’s Newberg Funeral Chapel; cv-09-1009-HU) after first attempting to reach a pre-litigation settlement. After the EEOC filed the lawsuit on her behalf, Jackson retained private attorney Larry Linder and intervened in the case. Jackson’s charge of discrimination was investigated by EEOC investigator Rick Thomas.
In addition to the monetary settlement, Attrell’s agreed to implement anti-discrimination policies and procedures in its workplace. The company also agreed to provide training on the ADA and reasonable accommodations to all its management and non-management employees its Newberg facility. Attrell’s will also provide periodic reports to EEOC on its compliance with the terms of the consent decree.
“Attrell’s fired Ms. Jackson based on its own stereotypes about what a person who uses a wheelchair can and cannot do,” said A. Luis Lucero, Jr., director of the EEOC’s Seattle Field Office. “Ms. Jackson was not even given the opportunity to demonstrate her abilities to carry out her work functions using a chair. Such stereotyping harms people with disabilities, but it also hurts employers because they lose out on talented and qualified employees.”
EEOC San Francisco Regional Attorney William R. Tamayo said, “Let this be a lesson to other employers: You must engage in the interactive process with employees who request accommodations. Ms. Jackson’s request was reasonable. Allowing her to continue working from her wheelchair would have benefited Ms. Jackson, Attrell’s, and the many clients who benefited from Ms. Jackson’s kind and diligent manner in attending to funeral arrangements. Instead, Ms. Jackson has been unemployed for over a year and has had to endure humiliation.”
The EEOC enforces federal laws prohibiting employment discrimination. The EEOC Seattle Field Office’s jurisdiction includes Alaska, Idaho, Montana, Oregon, and Washington. Further information about the EEOC including its guidance on employees with disabilities is available on its website at http://www.eeoc.gov.
EEOC sues Wal-Mart under ADA
January 31, 2010 by Ross Runkel at LawMemo
EEOC has filed suit against Wal-Mart, claiming a refusal to provide a reasonable accommodation to a deaf employee.
EEOC charged that in order to perform her job, the employee needed an American Sign Language interpreter and/or comprehensive written notes at various times throughout her employment to effectively communicate with her managers, co-workers and, occasionally, with customers.
$170,000 from Saks settles disability claim
January 11, 2010 by Ross Runkel at LawMemo
Saks Fifth Avenue will pay $170,000 to settle a disability discrimination suit brought by EEOC, on a claim that Saks fired a makeup because of her disability, ulcerative colitis.
$55,000 settles disability suit
January 08, 2010 by Ross Runkel at LawMemo
EEOC claimed that a debt collection agency refused to hire a qualified applicant because she was blind.
The suit settled for $55,000 and other relief.
$30,000 settles disability suit
January 08, 2010 by Ross Runkel at LawMemo
EEOC claimed that two property management firms failed to accommodate and then fired an employee because he suffers from bipolar disorder.
The suit settled for $30,000 and other relief.
$65,000 settles disability claim
December 18, 2009 by Ross Runkel at LawMemo
A loan company will pay $65,000 to settle a disability discrimination suit filed by the EEOC.
EEOC charged that the company refused to allow an employee to return to work unless she submitted to a medical exam that would detect viruses. The company insisted that she take the exam after it became aware that her husband had a medical condition related to Hepatitis C.
This medical exam was not job-related, according to the EEOC, because any possible safety risk to others posed by the loan clerk’s job duties would be insignificant. The EEOC further alleged that when the employee refused to undergo the medical exam, the company discharged her because it regarded her as disabled due to her relationship with her husband.
$142,500 ADA settlement
December 14, 2009 by Ross Runkel at LawMemo
$142,500 settles EEOC's claim that a hospital discriminated against an employee on the basis of her disability, Type I "brittle" diabetes, after she experienced a diabetic coma for which she was treated there.
Specifically, the EEOC charged that the hospital failed to grant the employee a reasonable accommodation to permit her to modify her part-time work schedule as an employee health nurse so that she would work three days in a row rather than alternate work days.
The EEOC charged that the hospital endangered the employee’s physical health and effectively terminated her employment by refusing to accommodate her request to work the modified part-time schedule.
EEOC's Proposed regulations under ADAA
September 22, 2009 by Ross Runkel at LawMemo
The Equal Employment Opportunity Commission (EEOC) is expected to file in the Federal Register its proposed regulations under the Americans with Disabilities Act as amended, some time this week.
The document is 93 pages.
The public will have 60 days within which to file comments.
5th - EEOC prevails in chronic fatigue syndrome ADA case
June 05, 2009 by Ross Runkel at LawMemo
EEOC won a major victory today, on behalf of a former employee who suffered from chronic fatigue syndrome.
The full opinion: EEOC v. Chevron Phillips Chemical (5th Cir 06/05/2009)
EEOC sued Lorin Netterville's former employer claiming violations of the Americans with Disabilities Act (ADA). The trial court granted summary judgment for the employer; the 5th Circuit reversed.
Netterville suffered from chronic fatigue syndrome (CFS). In a fact-intensive decision, the 5th Circuit concluded that there were triable issues of fact as to three aspects of the case.
(1) Disability: The court found that Netterville's CFS caused a substantial limitation on her major life activities of caring for herself, sleeping, and thinking. "Netterville's affidavit attests that she often did not shower for several days because contact with the water was painful and because her arms hurt too much to raise them to wash herself or dry her hair. When she did shower, she needed to rest afterwards. She was unable to cook, shop for food, zip up her own clothes, or even use the bathroom without her sister's assistance." The court rejected arguments that her CFS was "intermittent," her impairments were "short-lived, non-permanent, and non-severe," and symptoms were somewhat controlled by medications.
(2) Accommodation: The court found that there was evidence that the employer did not attempt to entertain Netterville's requested accommodations.
(3) Discharge for having a disability and for requesting an accommodation: The trial court found that the only reasonable inference from the evidence was that the employer discharged Netterville because she misrepresented her medical history. The 5th Circuit concluded that a jury reasonably could find that Netterville answered questions truthfully and that the employer's proffered explanation was not credible in light of all of the evidence.
Earlier report: 5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case (Jottings By An Employer's Lawyer).
Driving is not a major life activity under the ADA
April 24, 2009 by Ross Runkel at LawMemo
Marsalette Winsley sued her former employer, asserting (among other things) a disability discrimination claim under the Americans with Disabilities Act (ADA). The trial court granted summary judgment in favor of the employer.
Winsley's regular job was a public health nurse, and driving to the homes of her clients was part of the job. For medical reasons, she was unable to do any driving other than to and from work.
The 7th Circuit held that "driving" is not a major life activity under the ADA. Winsley v. Cook County (7th Cir 04/22/2009)
The court observed that the 2nd, 10th, and 11th Circuits have all arrived at the same conclusion.
The court noted that activities recognized as major life activities by the Equal Employment Opportunity Commission (EEOC) "are so important to everyday life that almost anyone would consider himself limited in a material way if he could not perform them." The court concluded, however, that "this is not the case with driving."
The court observed, "[a]lthough we hold that driving is not itself a major life activity, the inability to drive nevertheless could create a disability if it caused an impairment of a major life activity."
Added damages to compensate for adverse tax consequences of lump-sum back pay award
February 04, 2009 by Ross Runkel at LawMemo
An employee who wins a discrimination case gets a lump-sum award. Can she get an additional award to make up for the additional taxes she will pay due to getting a lump sum award?
Yes, says the 3rd Circuit: Eshelman v. Agere System (3rd Cir 01/30/2009).
Joan Eshelman sued her former employer, asserting a disability discrimination (discriminatory discharge) claim under the Americans with Disabilities Act (ADA). She prevailed after a jury trial, and was awarded substantial damages. Eshelman was awarded additional damages to compensate for the negative tax consequences arising from a lump-sum back pay award. The 3rd Circuit affirmed.
The trial court awarded additional damages to compensate for the fact that the amount of tax on Eshelman’s lump-sum back pay award was more than the amount her tax would have been had she received the funds in the normal course of employment. The employer argued that this additional award constituted error. The court disagreed.
The court held that a trial court “may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create.” The court reasoned, “[o]ur conclusion is driven by the ‘make whole’ remedial purpose of the anti-discrimination statutes. Without this type of equitable relief in appropriate cases, it would not be possible ‘to restore the employee to the economic status quo that would exist but for the employer’s conduct.’” The court noted that an employee bears the burden of showing the existence of an adverse tax consequence justifying this type of relief. The court also noted that the 10th Circuit awarded this type of relief in Sears v. Atchison, Topeka & Santa Fe Ry. Co., 749 F2d 1451 (10th Cir 1984).
My view: Sounds right to me. The key is "make whole." No more, no less.
Medical marijuana law gives no protection from the boss
January 24, 2008 by Ross Runkel at LawMemo
Gary Ross got fired because his drug test was positive for marijuana. He was using marijuana to treat chronic back pain, doing so on the advice of his doctor.
Ross sued his former employer claiming disability discrimination and claiming wrongful discharge in violation of public policy.
He relied on California's Compassionate Use Act of 1996, which gives an individual some protections from criminal prosecution when using marijuana for medical purposes on the recommendation of a physician.
Only one problem, according to the California Supreme Court. The Compassionate Use Act was not designed to have any impact on employment law. The whole idea of the statute was to protect certain users from criminal prosecution. So Ross lost, and the boss won.
The case: Ross v. Ragingwire Telecommunications (California Supreme Court 01/24/2008).
Early blog comments:
California Supreme Court: No Accommodation for Medical Marijuana from What's New in Employment Law?
CA Supreme Court: Ragingwire affirmed from Storm's California Employment Law.
ADA accommodation case taken off Supreme Court docket
January 15, 2008 by Ross Runkel at LawMemo
Huber v. Wal-Mart Stores, Inc. has been settled by the parties, and removed from the list of cases that the Supreme Court will decide this year.
It raised an interesting issue: Whether the ADA requires an employer to reassign a disabled employee to a vacant position for which she is qualified, or merely permits the employee to apply and compete with other applicants for the vacant position.
Here is how the issue was stated in Huber's petition for certiorari:
Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. (ADA), requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). The statute expressly lists "reassignment to a vacant position" as a "reasonable accommodation." Id. § 12111(9)(B). The Equal Employment Opportunity Commission (EEOC) has issued regulations implementing that definition, 29 C.F.R. § 1630.2(o)(2)(ii), and it has interpreted those regulations to provide that "[t]he employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment." The questions presented are:
1. If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require:(a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or
(b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?
Pam Huber had worked as an order-filler until she became disabled. She sought, as a reasonable accommodation, reassignment to a router position which was vacant and for which she was qualified. The employer did not automatically reassign her to the router position, but required her to apply and compete with other applicants. The employer filled the router position with a non-disabled person who was the most qualified applicant, and placed Huber in a less desirable janitorial position.
Huber sued under the Americans with Disabilities Act (ADA); the trial court granted summary judgment for Huber; the 8th Circuit reversed; the US Supreme Court granted certiorari to review the 8th Circuit judgment. Now the case has been dismissed.
Huber's position was that the employer should have automatically reassigned her to the router position without requiring her to compete with other applicants. The employer's position was that it has a nondiscriminatory policy of hiring the most qualified applicant, and that giving the router position to the most qualified applicant does not violate the ADA.
No BFOQ in ADA cases
January 02, 2008 by Ross Runkel at LawMemo
The 9th Circuit, in an en banc opinion, has rejected application of Title VII and ADEA bona fide occupational qualifications (BFOQ) in ADA cases.
Bates v. UPS (9th Cir 12/28/2007) (en banc) (3-2)
Bates sued the employer for violation of the Americans with Disabilities Act (ADA) alleging unlawful exclusion from driving vehicles of 10,000 pounds or less if hearing impaired. The trial court found in favor of Bates. The 9th Circuit reversed.
The employer imposed the Department of Transportation (DOT) hearing standard for vehicles in excess of 10,000 pounds to vehicles of 10,000 pounds or less. The court considered the claim that an employer's safety qualification standard discriminated against otherwise qualified persons with disabilities, and the showing required of an employer to successfully assert the business necessity defense to the use of such a qualification.
Because the employer linked hearing with safe driving, the court concluded that the employer bore the burden to prove that nexus as part of its defense to the use of the hearing qualification standard; however, Bates bore the ultimate burden to show he was qualified to perform the essential function of safely driving a vehicle of 10,000 pounds or less. The court remanded for Bates to prove he was a qualified individual.
The court rejected the adaptation of the Title VII and the Age Discrimination in Employment Act (ADEA) bona fide occupational qualifications (BF0Q) safety standard requirement into the ADA context, where there was no BFOQ defense as such in the ADA (overruling Morton v. United Parcel Service, Inc., 272 F3d 1249 (2001)). Relying on statutory provisions of the ADA's version of the business necessity defense, the court stated the employer must show:
(1) "job-relatedness" by demonstrating that the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job;
(2) "consistent with business necessity" by demonstrating that the disputed qualification standard substantially promotes the business's needs; and
(3) "performance cannot be accomplished by reasonable accommodation" by demonstrating either that no reasonable accommodation currently available would cure the performance deficiency or that such reasonable accommodation poses an undue hardship on the employer.
The DISSENT would require the employer bear the burden of showing, if it desired to adopt as a threshold requirement a minimum hearing level such as the DOT standard, that it can establish under the business necessity test that deaf applicants as a group who do not meet that requirement cannot drive vehicles of 10,000 pounds or less safely.
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