Articles Posted in Americans with Disabilities Act (“ADA”)

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Well-known clothing retailer Abercrombie & Fitch has taken plenty of media heat thanks to its restrictive “look policy.” At one time, they dictated everything from the length of employees’ fingernails to the color of their hair. In addition, employees were required to purchase clothes from the retailer.

Lawsuit word breaking through red glass to illustrate legal action brought by a plantiff against a defendant in a court of law through opposing lawers or attorneys

Abercrombie & Fitch is now being sued for this aspect of their look policy. Judge Jesus Bernal recently ruled that a lawsuit that was originally filed by two former employees could move forward as a class action. The class could potentially have thousands of members, making this case much more significant, and possibly much more costly, if the plaintiffs prevail.

At the heart of the lawsuit is the store’s policy that required its approximately 62,000 employees to exclusively buy their work attire through the brand. The complaint, which was filed in California, notes that workers were expected to purchase clothes at least five times per year to coincide with the seasonal fashions found in the stores. Allegedly, all employees were given a “style booklet” outlining what they were supposed to buy and how it should be worn.

The complaint claims that this policy caused the hourly pay rate to fall below minimum wage. At the same time, the plaintiffs say that Abercrombie benefited from the policy. Although employees received a discount on their purchases, the retailer nonetheless made a substantial profit through requiring workers to shop there. Moreover, employees working on the sales floor were considered “models” who were displaying the store’s latest fashions. This enticed customers to spend more money to attain the same look that employees were wearing.

Abercrombie has already drawn fire for refusing to hire a Muslim female who needed to wear a hajib and for firing another worker who had a prosthetic arm. Their situation provides a helpful reminder for other employers that employee dress codes need to be well thought-out and reasonable. Most importantly, they should be in line with the law and all Constitutional rights. It is a wise idea to have an experienced attorney review a dress code policy to minimize the opportunities for litigation.

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Home improvement retail giant Lowe’s has agreed to pay an $8.6 million settlement to disabled workers that the company fired. The agreement was reached after the federal government’s Equal Employment Opportunity Commission filed a lawsuit against the company in California.

Gardne center worker in a wheelchair holding a flower pot in a greenhouse

The settlement money will be distributed to former Lowe’s employees who were fired from the company between January 1, 2004 and May 13, 2010. Eligible employees were terminated after exceeding the company’s 180-day or 240-day medical leave policy. All of the affected employees were either disabled, “regarded as” disabled or were associated with someone who was disabled.

While Lowe’s stipulated a maximum leave policy of either 180 days or 240 days, officials with the EEOC argued that the policy was not in line with the Americans with Disabilities Act, or ADA. In fact, the EEOC charged that Lowe’s “engaged in a pattern and practice of discrimination” against employees who were disabled. Moreover, the lawsuit argued that Lowe’s routinely failed to provide adequate accommodations for disabled workers.

Also as a part of the settlement agreement, Lowe’s is required to hire ADA consultants who can help to reshape the company’s leave policies and assist them to address accommodation issues. Lowe’s will be required to create a system for recording and tracking employee requests for accommodation and how those requests are dealt with. Additionally, staff and management members across the company will be asked to undergo training related to ADA issues.

Lowe’s executives argue that they revamped their leave policies and more closely examined their compliance with ADA in 2010. Nonetheless, they agreed to this settlement to further the effort to comply with all facets of the ADA.

Lowe’s situation acts as an important lesson to other employers who are not sure if they are in compliance with all applicable aspects of ADA. Hiring a consultant or seeking legal advice before a serious problem arises is the best way to avoid a costly lawsuit from the EEOC or a former employee. Proactive measures toward offering accommodations and not violating ADA medical leave policies are important for any company that is seeking long-term success.

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Schools and businesses beware. Electromagnetic Hypersensitivity Syndrome (EHS) may be hurting your students, employees and customers. While Science has not yet proven a causal link between EHS and the symptoms of its growing numbers of sufferers, lawsuits are being filed here in the US and abroad.

WiFi%20sign%2068234810-001.jpgA woman in France has been awarded about $32,000 in compensation for pain and suffering brought about by an allergy to WiFi. She claimed that she was forced to relocate to the countryside because digital wireless transmissions caused her severe discomfort. Her award will be paid out over the next three years.

Recently, the parents of a 12 year old boy in Southboro Massachusetts have filed a lawsuit claiming that the schools WiFi signal is causing their son to become ill and lose focus and concentration in school.

The complaint alleges that the boy was diagnosed with EHS after experiencing headaches, nausea and nosebleeds after the Fay School installed new, stronger wireless internet equipment in 2013. The lawsuit seeks accommodations and $250,000 in damages.

The World Health Organization acknowledges that EHS is a collection of symptoms, but clarifies it is not a medical diagnosis, and the symptoms may not be caused by a single medical problem.

A number of EHS sufferers have relocated to Green Bank, West Virginia in the Appalachian foothills. Green Bank is within the 13,000 square mile radio free zone in the US. Virtually all wireless devices are against federal law in that zone.

Is the beginning of a trend of EHS lawsuits? Should schools and businesses pay closer attention to the wireless waves being showered on anyone nearby? Will EHS become an ADA issue/category? It is just too soon to tell, but we will keep you informed.

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A California appellate court has ruled in favor of a white employee who suffered from discrimination by his Hispanic boss. The court ordered the City of Los Angeles to give James Duffy $3.2 million for the harassment he received from his supervisor, Abel Perez.

Retaliation%2032004699-001.jpgAccording to court records, Perez told Duffy that he hated Caucasians. Three of Duffy’s Hispanic coworkers related that Perez also told them that he was biased against white people. Additionally, the court determined that Perez harassed Duffy because he was disabled.

Duffy was a gardener for the city from 1991 until 2010. In 2001, Perez began regularly calling his partially disabled subordinate insulting names and making up reasons to write him up for poor performance.

In 2004, Duffy received a workplace injury that resulted in a traumatic brain injury. The injury caused speech and cognitive difficulties for Duffy, including difficulty thinking and repetitive speech. Perez took advantage of Duffy’s added disabilities, ramping up the abuse and even hiding the man’s tools so that Perez could discipline him for not completing his work. He also forbade other employees from coming to Duffy’s aid.

Although he was eventually investigated and transferred, Perez continued to be Duffy’s indirect supervisor and maintained control over his assignments. Perez assigned Duffy harsher working conditions and began driving past Duffy as the man worked, honking his vehicle’s horn and yelling insults.

Throughout the years of abuse, Duffy made report after report. However, the abuse was never stopped. Perez, who maintains his position with the city, denies Duffy’s claims and insists he has never been disciplined by the parks department.

In spite of Perez’ protestations, however, the original court found in Duffy’s favor. The City of Los Angeles appealed the large settlement, claiming that Duffy waived his right to sue when he accepted early retirement. The city also claimed that video testimony of Duffy’s fatally ill wife taken during her deposition was inadmissible because it was hearsay.

The appellate court dismissed the city’s claims as groundless and ordered it to pay the settlement. According to Duffy’s legal counsel, the case was unusual in the realm of employee harassment cases because of the wealth of direct evidence to prove Duffy’s claims.

The case is James Duffy v. City of Los Angeles, available HERE.

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A U.S. Supreme Court decision made in March 2015 has led the EEOC to issue a new enforcement guidance with respect to pregnancy discrimination. The amendments may impact employers going forward, and it’s best to be aware of the changes now in order to avoid possible future complaints that could lead to lawsuits.

Pregnant%20at%20work%202822222%20%282%29.jpgPart-time worker Peggy Young sued UPS, her employer, for not providing her with reasonable accommodations in relation to her pregnancy. Her doctor wanted her to follow certain lifting restrictions. Young asserted that other workers who had been injured received accommodations similar to those she was requesting, such as light duty, but that she was denied. Her case was decided via summary judgment by a lower court, so Young took the matter to the U.S. Supreme Court. The justices ruled that UPS had committed discrimination against Young because of her pregnancy. Accordingly, the summary judgment was vacated and the case continues on.

The EEOC felt it would be beneficial to issue a new enforcement guidance on pregnancy discrimination. Much of the document remains unchanged since the July 2014 update, which was the first revision to have been made in 30 years. The amendments relate to the treatment of workers who are pregnant and include a portion that addresses light duty work for such employees.

The changes are relatively minimal and leave much of the July 2014 revision unedited. For instance, there is no change on the stance about the illegality of firing or refusing to hire someone because they are pregnant and forced leave policies are still prohibited. Similarly, employers are still required to treat both male and female employees equally when considering parental leave.

Keeping up with EEOC changes is important for human resources personnel and for anyone within an organization who may make employment related decisions. A single misstep can have serious consequences, exposing an organization to long, costly litigation that may damage its reputation. Supervisors and managers may want to consult with an employment attorney regarding these EEOC updates to ensure that they are fully understood before being confronted by these issues in the workplace.

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A Supreme Court ruling may have implications for employers who have not given particular consideration to their policies regarding pregnant workers. In the Peggy Young v. United Parcel Service Inc. case, the highest court in the U.S. ruled in favor of the plaintiff and sent the case back to a lower court.

pregnant.work%2049594695-001.jpgPeggy Young was a part time UPS driver stationed in a Maryland facility in 2006 when she became pregnant. On advice from her midwife, Young informed her employer that she was no longer able to lift packages that weighed more than 20 pounds. UPS requires that its drivers be able to lift a minimum of 70 pounds. Nonetheless, the employer has made accommodations for injured employees in the past who could no longer meet that requirement.

Young asserts that she was asking for a similar accommodation. However, UPS informed the driver that the lifting restriction would render her unable to work. For most of her pregnancy, Young stayed at home without pay. Eventually, she lost the health insurance that her employer had been providing.

She filed a lawsuit, arguing that UPS had failed to accommodate her when they had a history of accommodating other employees working under similar restrictions. UPS countered with the argument that those workers had been injured or disabled on the job. Moreover, many of those who received accommodations were part of a class protected by the Americans with Disabilities Act.

UPS was initially successful in fighting Young’s claims, but the plaintiff kept appealing until the case reached the Supreme Court. In a six to three decision, the highest court noted that “there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.”

The decision sends the case back to the 4th Circuit Court where Young will have another chance to make her argument. It’s clear that UPS intends to fight this case to the end. The company has even introduced temporary light-duty positions for pregnant employees who are under physical restrictions in an effort to bolster their anti-discrimination stance.
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Auto parts retailer AutoZone is in hot water with the Equal Employment Opportunity Commission (EEOC). The government entity recently filed its fourth lawsuit against the company for violations of federal law.

AutoZone%20Logo-001.jpgThe lawsuit stems from the firing of an employee at AutoZone’s Ottawa, Illinois location. The complaint alleges that the employee had Type 2 diabetes, and would sometimes have an adverse insulin reaction that would cause him to have to leave his shift early. Under federal law, these absences were protected, but AutoZone’s policies failed to take this into account.

Instead, employees across the country were subject to a points system that kept track of their absences. Any employee who racked up 12 points was subject to termination, and no guidelines were in place for workers with disabilities. This means that workers who had a legitimate, legally protected reason for being absent were essentially being given demerit points that contributed to their eventual termination.

The EEOC has sued AutoZone three other times in recent years. In the other lawsuits, an employee had been passed over for promotion because of a visual impairment. The second lawsuit involved an employee whose disability made it impossible for him to mop floors without injuring himself. The company insisted that he perform the task anyway, and his subsequent injury formed the basis for the suit. The third case was filed on behalf of an employee whose disability meant that she was restricted to only lifting objects below a specified weight, a restriction which the company refused to acknowledge.

This latest EEOC litigation against AutoZone is also based on the claims of another employee who says he protested the company’s neglect of federal laws that protect workers with disabilities. The employee also filed charges with the EEOC against the company, and claims to have been fired by AutoZone as a result.

EEOC already attempted a pre-litigation settlement with AutoZone which did not succeed. Its next step was to file the lawsuit claiming violations of Title I and Title V of the ADA. The case will be decided in the U.S. District Court for the Northern District of Illinois by Judge Marovich.

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Children with autism face a number of challenges. It isn’t easy for them to relate to others, and life changes can prove distinctly distressing for them. That’s why a practice of moving autistic children from one school to another in the Philadelphia School District with little warning was so troubling.

Special%20ed%20brain%20puzzle%2048932564-001.jpgParents whose autistic children attended public school in Philadelphia called the practice the “autism shuffle.” Children in kindergarten through eighth grade were subject to being moved from one school to another in order to receive the support they required. Some schools simply weren’t equipped to deal with the needs of autistic children as they advanced through grade levels. Essentially, the district had divided the support services into three categories. One for kindergarten through second grade, the next for third through fifth and the last for sixth through eighth. When a child was moving beyond the service level provided at their current school, they would be abruptly sent to another one. Parents had no input, and the transitions were often alarmingly difficult for the children.

A class action lawsuit was filed in an effort to improve the practice. Recently, a settlement was reached between the parents with autistic children and the school district. District officials have agreed to halt the practice of immediately moving children from one school to the next. Under the new deal, parents will be informed by January if the district expects their child to attend a different school in the fall. A formal notice letter will be sent out in June.

Parents have the right to meet with district officials to discuss the changes and, unlike before, they have plenty of time to do so. The new agreement also makes it easier for teachers to help their vulnerable students prepare for changes on the horizon. Best of all, the students themselves have time to adjust to the idea of attending school in a different environment. They may have time to visit the school before the term begins to familiarize themselves with their new surroundings. The decision appears to be a win for the students and the district.

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As a federal law, the Americans with Disabilities Act (ADA) is one of the most litigated laws that protects people from discriminatory practices. While the ADA does provide all kinds of protection, these are not automatic for anyone who is disabled. A recent federal court case demonstrated that fact. Under ADA, people with disabilities must go through a certain procedure in order to file a lawsuit.

Disability%2055444138-001.jpgIn order to prove that someone with disabilities was discriminated against under ADA, employees must show three elements have occurred. First,the employee has to provide evidence that he has a disability. In addition, the employee must show that he is qualified to perform the functions of the job as necessary. Lastly, disabled employees must show that he has suffered discrimination based on the disability.

In a court case brought up to the 10th Circuit Court of Appeals named Dinse v. Carlisle Foodservice, Douglas Dinse was a product engineer for Carlisle Foodservice Products suing his employer after he was terminated due to poor performance. This was allegedly because Mr. Dinse had serious health problems. Mr. Dinse decided to sue because he said that he was discriminated against because his employer failed to provide reasonable accommodations to help with his illness. The 10th circuit affirmed the district court’s holding that employers only had to provide accommodations under ADA if the employee made an adequate request for reasonable accommodation.

The request lets an employer know that that the employee is disabled and needs the accommodation. Mr. Dinse had requested a laptop in order to perform his work while he recovered from surgery, but he didn’t indicate that the request was because of the injury. Since Mr. Dinse did not make the right type of request under ADA, the 10th Court affirmed the district court’s decision in favor of the defendant, Carlisle Foodservice.

Even though an employer may be aware that an employee is disabled, the company isn’t allowed to be held liable under ADA unless the employee goes through the proper channels to report that they have a disability. They have to formally request a reasonable accommodation for their disability as Mr. Dinse found out when he lost his case.

From the Court documents:

“In this case, it is true that Carlisle never engaged Mr. Dinse in an interactive process, nor provided him with a reasonable accommodation. But we conclude based on the undisputed evidence that Mr. Dinse never asked Carlisle for an accommodation.”

“In other words, it is the request for an accommodation for an employee’s disability that triggers an employer’s duty to engage in the interactive process, not an awareness of a disability that may (or may not) necessitate an accommodation.”

“Dinse failed to provide Carlisle with legally adequate notice of his desire for an accommodation. As a consequence, Carlisle had no legal duty to attempt to provide Mr. Dinse a reasonable accommodation. And, as Mr. Dinse acknowledges, he was not qualified-without an accommodation-to perform his job.”

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Workers who allege retaliation against their employers may now have a tougher battle ahead of them thanks to a ruling handed down by the U.S. Supreme Court. The highly contested case known as University of Texas Southwestern Medical Center v. Nassar has been making headlines for about three years now, and the ruling by the nation’s highest court is likely to resonate in lower courts across the country.

Retaliation%2032004699-001.jpgDr. Naiel Nassar was employed by the university in 2001 to work at its Parkland HIV-AIDS clinic. His employment went smoothly until 2004 when Dr. Beth Levine became chief of infectious disease medicine. In Nassar’s original complaint, he alleged that Dr. Levine constantly harassed him because of his Middle Eastern descent. The workplace became so unbearable for him that Nassar resigned in 2006, sending a resignation letter that detailed the harassment to Levine’s supervisor and other high level college administrators. At the time, Nassar was anticipating transferring to work at the medical center. The offer of employment was abruptly rescinded after the letter was sent. Nassar sued, believing the loss of the employment offer was solely based upon retaliation for the letter.

Initially, Nassar won his case. The university was ordered to pay nearly $4 million in damages, but they appealed the ruling instead. The case was taken all the way to the U.S. Supreme Court where the university prevailed by a narrow margin. In a five to four decision, Justice Anthony M. Kennedy wrote that Nassar is required to furnish “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action … of the employer.” This application of “but for” causation demands a strict interpretation of Title VII of the Civil Rights Act of 1964.

At this point, the case has been kicked back to the Fifth Circuit Court where this higher standard will be applied. Regardless of the ultimate outcome of this litigation, it seems clear that the Supreme Court ruling alone will set a precedent that will require future plaintiffs alleging retaliation against their employers to meet a higher, more exacting standard of proof.