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

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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.

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A recent policy change is raising the eyebrows of more than a few CVS Pharmacy employees. The policy change relates to the employee health insurance program. About 200,000 CVS employees receive health benefits through their employer. The new policy requires each of those employees to submit to a wellness screening or face a $50 per month penalty on their insurance premium.

Heart%20health%20screening%20%2048038504-001.jpgBefore May 14, CVS employees are required to keep an appointment with a physician who can perform a WebMD Wellness Review. The check up will include tests for common health concerns like cholesterol, blood sugar, body mass, body weight and blood pressure. Test results must then be submitted to the employer, though CVS insists that the company will not be reviewing the test results, nor will there be any penalties for unfavorable results.

Instead, CVS states that they are motivated by increasing the wellness factor among its employees. As Dr. Richard Besser, the chief health and medical editor for ABC News, notes: “If your employees are healthy they’re going to work better and they’re going to cost the employer a lot less money.”

Such programs are not new. Many health plans require regular screenings. However, this new CVS policy does have some distinctive differences. While CVS officials declare that participation is “voluntary,” the stiff penalties for not participating suggest otherwise. Many employer sponsored health plans that ask for screenings do so on an incentive basis in which an employee is rewarded for participation. This new CVS policy is much more penalty based and carries a negative connotation.

The spokesperson for Patient Privacy Rights calls the policy a “coercive and blunt” tactic that is based on the notion that workers “need to be penalized in order to make themselves healthy.” Peel worries that the plan is actually “technology-enhanced discrimination” that will lead to the firing of ailing employees.

Though it is controversial, CVS appears to be moving forward with the policy. Time alone will tell if the policy leads to a healthier workforce and whether or not CVS intends to make personnel decisions based on worker health.

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Should food allergies be considered a disability? Perhaps they should, at least according to a settlement recently reached between a college in Massachusetts and the Justice Department. The college in question, Lesley University, is now required to make accommodations for students who suffer from severe food allergies. The specific allergy in question is a wheat allergy called celiac disease, but this settlement may make a precedent for other food allergies.

Food%20Allergy%2048535487-001.jpgSupporters of the settlement say that it will grant important rights to college students who, in many cases, are required to participate in an on campus meal plan. Many institutions require students to purchase a cafeteria meal plan while living in on campus housing. For most students, this is an economical and convenient choice. However, those students who suffer from various food allergies may find that their food choices in the cafeteria are severely limited.

The result is sometimes weight loss and nutritional imbalance. Some students with food allergies and no alternatives are forced to pay for meal plans they never use while finding other ways to prepare appropriate food for themselves. On occasion, students have even taken the extreme step of moving off campus in order to enjoy more freedom to prepare their own food.

Those in opposition to the settlement suggest that federal government involvement in the food served by college cafeterias is absurd. They feel that colleges should be encouraged to work with students on a case by case basis, allowing some students to opt out of mandatory meal plans and providing appropriate dietary choices for others.

The settlement between the federal government and Lesley University provides only that the school must make reasonable modifications for students who consider themselves disabled as a result of their food allergy. However, many people who have food allergies are not yet accustomed to the idea that their disorder actually is a disability.

The finding that food allergies may qualify as disabilities is a surprising one that may provide future government protection not just for on campus college students, but also for students in elementary, middle and high schools.

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A federal lawsuit has been filed against the Hillsborough School District in Tampa, Florida for the death of a seven-year old girl with special needs. Although Isabella Herrera was confined to a wheelchair because of her muscular dystrophy, the seven-year old wanted to feel like the rest of her classmates; Isabella insisted that her mother let her ride the school bus.

School%20Bus%2043843684-001.jpgEven though it is clearly stated on Isabella’s Individual Education Plan (IEP), video footage from the school bus shows that neither the aide, Joanna Hamilton, nor the bus driver, Tonia Pizarro, properly tilted Isabella’s wheelchair. For seventeen minutes, Isabella’s unstable head bobbed backwards and forwards, and she started choking.

On January 25, 2012, Lisa Herrera, Isabella’s mother, received the call. Instead of calling 911, the aide on the school bus called the girl’s mother.

Isabella’s parents are outraged about how the adults on the bus reacted once they realized that something was wrong with Isabella. Even though Isabella had turned blue, video footage shows how neither the bus driver nor the aide ever called 911. The adults never tried to perform CPR on Isabella either. Ironically, the bus stopped in front of a pediatric clinic and neither Pizarro nor Hamilton tried to get help for Isabella. Isabella died the next day at the hospital.

Isabella’s parents are suing on the grounds of negligence. Her parents hope that their lawsuit will prevent other family’s from losing their children. They also feel that Isabella’s civil rights as a disabled person were violated when the school district failed to effectively meet Isabella’s transportation needs that are protected under the Americans With Disabilities Act.

A spokesperson for the Hillsborough School District Stephen Hegarty, commented that their bus drivers do receive basic training in things like CPR. However, bus drivers and aides do not have to receive training for assisting children with special needs, even though this training is available. Hegarty claims that the school district is currently reevaluating its training policies.