ADA in the News: December 12, 2014

Justrite Manufacturing Company to Pay $418,000

Justrite Manufacturing Company, a Mattoon, Ill.-based manufacturer of storage, handling and security products, will pay $418,000 to settle disability discrimination complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC).

The settlement results from a multi-year EEOC investigation which found that Justrite discriminated against disabled employees in that it refused to engage in an interactive dialogue with employees to find reasonable accommodations, denied reasonable accommodations outright, and/or retaliated against those who requested accommodations or complained about discrimination. Such alleged conduct violates the Americans with Disabilities Act (ADA).

The settlement not only provides monetary relief to those who have already been discriminated against, but also ensures the company will take proactive measures to prevent discrimination from occurring in the future. Justrite will conduct ADA training for all of its 130 employees, revise and disseminate its anti-discrimination policies and procedures, including those related to providing reasonable accommodations to employees under the ADA, and provide periodic reporting to the EEOC of complaints against the company and its progress in complying with the ADA.

"The reasonable accommodation process works best when both the worker and the employer engage in a good-faith, collaborative discussion to find a mutually beneficial way for the disabled employee to perform the job," said John P. Rowe, Director of the EEOC's Chicago District Office. "Retaliation against those who seek to begin this discussion would obviously undermine that process. Such conduct is not only illegal under the ADA, but is also destructive to the greater national goal of enabling employees, disabled or not, to take their place as workers as far as their talents and abilities will take them."

Justrite denied any wrongdoing, but agreed to conciliate the matter with the EEOC and a class or individuals, including the individuals who filed charges.

Seventh Circuit permits inquiries relating to disability benefits

Lexology

In October 2014, in Wigginton v. Bank of America Corp., 2014 U.S. App. Lexis 19850 (7th Cir. October 16, 2014), the Seventh Circuit Court of Appeals rejected the plaintiffs’ assertion that Bank of America’s request for income-related information on the continuation of disability benefits was discriminatory under the Fair Housing Act, 42 U.S.C. § 3605(a) (“FHA”), the Rehabilitation Act, 29 U.S.C.§ 794, and Title III  of the Americans with Disabilities Act, 29 U.S.C. 12182(a) (“ADA”). The Seventh Circuit cited to the Equal Credit Opportunity Act (“ECOA”) for  the proposition that it is not discriminatory for a bank to collect information about “whether the applicant’s income derives from any public assistance program if such inquiry is for the purpose of determining the amount and probable continuance of income levels, credit history, or other pertinent element of credit-worthiness.” 2014 U.S. App. Lexis 19850 *2, citing 15 U.S.C.§1691(b)(2).

Although the Seventh Circuit agreed that the FHA, the ADA, and the Rehabilitation Act prohibit discrimination, it noted that “[n]one of these statutes forbids asking applicants for information that will be used to apply the same standards that govern non-disabled persons.” 2014 U.S. App. Lexis 19850 *3. The appellate court noted that a creditor is permitted to determine income levels as part of its underwriting process, and that disability benefits are not locked-in for life and may change.

Accordingly, a creditor may request information necessary to determine the continuation of such income as part of the application process.

The take-away from this ruling is that although federal fair lending law – under ECOA, the FHA  and the ADA – prohibits discrimination in obtaining applications for lending, it does not prohibit a lender from requesting income information necessary to make a reasoned underwriting decision.

When enough is enough: Disability is no excuse for misconduct

HR.BLR.com

Employers should take solace in the fact that the U.S. Court of Appeals for the 2nd Circuit— which covers Connecticut, New York, and Vermont—recently concluded that you need not tolerate workplace misconduct, even if it's caused by an employee's disability. This case demonstrates that there just comes a point when enough is enough.

Arizona employee's lawsuit for ADA, GINA violations goes forward

HR.BLR.com

Since the enactment of the Genetic Information Nondiscrimination Act (GINA) in 2008, employers have had to walk a fine line when responding to requests for accommodation under the Americans with Disabilities Act (ADA) and for leave under the Family and Medical Leave Act (FMLA) to ensure that they don't request or acquire genetic information while processing the request.

Perceived Disability Now Recognized Under Connecticut Law

JD Supra

On Monday December 8, 2014, the Connecticut Supreme Court issued its long-awaited decision in the case of Mireille Derosiers v. Diageo North America, Inc. et al. holding that the Connecticut Fair Employment Practices Act (the state counterpart to federal employment discrimination statutes, including the Americans with Disabilities Act) prohibits employers from discriminating against individuals whom they perceive as being physically disabled, even though the individual may not actually be disabled at all. Ms. Derosiers was employed by Diageo as a packaging buyer, and in that role, was responsible for repackaging Diageo’s products (beer, wine and spirits). In the months leading to her termination, she received several unfavorable performance evaluations from her supervisor and was placed on a ninety day performance improvement plan.  Ms. Derosiers alleged that she informed her supervisor that she would need to take a medical leave of absence to undergo surgery for a tumor on her right shoulder, and the following day she was terminated for “performance reasons.”  She then brought suit alleging disability discrimination based on her physical disability and/or perceived physical disability. Both the trial court and appellate court rejected her perceived physical disability claim, holding that while such a claim is expressly permissible under the ADA, it is not provided for under Connecticut law. Indeed, the Connecticut statute is silent on this issue.  It states “It shall be a discriminatory practice in violation of this section: (1) For an employer … to discharge from employment any individual …because of the individual’s … present or past history of mental disability, intellectual disability, learning disability or physical disability ….” And “physical disability” is defined as “a chronic physical handicap, infirmity or impairment.”  (In contrast, the ADA specifically prohibits discrimination against employees who are “regarded as” disabled.) The Supreme Court reasoned that an employee who is rumored to have an impairment and is treated unfairly as a result should be entitled to the same legal recourse as the employee who, in fact, does have an impairment, because the illegal animus is the same. While interesting, this case should have little impact on employers’ practices or handbook policies because the ADA has always prohibited this type of discrimination.  Only employers with fewer than 15 employees, who are not subject to the ADA but are covered by CFEPA, might have believed that discrimination based on a “perceived disability” was permissible.  But  since 1989, the Commission on Human Rights and Opportunities (CHRO) has interpreted Connecticut’s statute as providing the same protections as the ADA in this regard.  This case simply legitimizes the CHRO’s position.

A 'friendly' lesson about job descriptions

HR.BLR.com

Since the 2008 amendments to the Americans with Disabilities Act, more and more employees are able to claim that they are disabled in some way, leading to an increase in claims of disability discrimination and failure to accommodate.

Mental Illness And The Workplace: How And When Should You Disclose Your Illness To Your Employer?

Headlines & Global News

With stigmas attached to mental illnesses, like bipolar disorder or PTSD, how do you disclose a "hidden" disability to an employer?

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