EEOC Sues T&T Subsea for Disability Discrimination
T&T Subsea, LLC, a Galveston marine services company, violated federal law when it fired an employee after he recovered from cancer surgery, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed on September 30, 2019.
According to the EEOC's suit, a diver/tender hired by T&T in June 2015 was diagnosed with cancer in December 2015. He received chemotherapy and radiation treatment in December 2015 and January 2016. After returning to full duty, he again took leave for surgery in April 2016. When he attempted to return to work at the end of August 2016, after recuperating from surgery, the diver was prohibited from doing so and terminated by T&T.
The EEOC alleges that T&T invoked a rule that a diver had to wait five years after chemotherapy to return to his job; T&T did not have the diver examined by a physician to determine his fitness to work. The EEOC asserts that T&T's actions violated the Americans with Disabilities Act (ADA).
The EEOC filed suit in U.S. District Court for the Eastern District of Louisiana (Civil Action No. 2:19-cv-12874) after first attempting to reach a pre-litigation settlement through its conciliation process.
The federal agency seeks a permanent injunction prohibiting T&T from engaging in any future disability discrimination. The EEOC also seeks back pay with pre-judgment interest, compensatory and punitive damages, in amounts to be determined at trial, and other relief.
"An employer cannot fire a worker because of myths or fears about the worker's medical condition, impairment or treatment," said Keith Hill, director of the EEOC's New Orleans Field Office.
Rudy Sustaita, regional attorney of the EEOC's Houston District Office which has jurisdiction over New Orleans, added, "Companies must evaluate each employee's situation without bias, based solely on actual evidence and science."
According to company information, T&T Subsea provides a wide variety of services to marine operators, including marine salvage support, ship husbandry, underwater welding, and vessel inspections and repairs, among other underwater services.
G&A Partners Sued by EEOC for Disability Discrimination
G&A OutSourcing, Inc. doing business as G&A Partners, a Houston-based professional employer organization that provides human resources services, violated federal law by firing a new employee the day after she disclosed that she had mental health impairments, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on Sept. 27.
The EEOC's lawsuit charges that on the first day of her employment, the employee disclosed to her supervisor that she had major depressive disorder (MDD) and attention deficit hyperactivity disorder (ADHD). The following morning, the employee was terminated because of those conditions, the EEOC says.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Civil Action No. 4:19-cv-03700) against G&A OutSourcing, Inc. d/b/a G&A Partners in U.S. District Court for the Southern District of Texas, Houston Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks an injunction prohibiting such actions in the future, as well as back pay with pre-judgment interest, and compensatory damages, in amounts to be determined at trial.
"An employee must be safe from termination when honestly disclosing disabilities to a new employer and discussing possible accommodations," said Rayford O. Irvin, district director of the EEOC's Houston District Office. "Employees with mental impairments, such as those with physical impairments, cannot be deprived of equal opportunities in the workplace afforded to all Americans."
Rudy Sustaita, the EEOC's regional attorney in Houston, explained, "A new employee should not have her employment cut short because she tells her employer that she has a disability of any kind. Such an employee is protected from discrimination by the ADA, and the EEOC is here to enforce that statute."
The EEOC's senior trial attorney in charge of the case, Connie Gatlin, added, "Situations like this are the reason Congress passed the ADA. They say honesty is the best policy - so it shouldn't be a cause for losing your job."
According to the company's website, the human resources services offered by G&A Partners to its corporate clients include HR solutions, workplace safety measures, provision and administration of benefits, payroll administration, and assistance with HR technology.
EEOC and Dish Network Conciliate Disability Charge Over Application Practices for $1.25 Million
DISH Network LLC has agreed to conciliate a disability discrimination charge regarding its online assessment for applicants with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.
DISH Network has agreed to pay $1,250,000 to compensate the original complainant and other aggrieved applicants who claimed they were denied an opportunity for employment at DISH Network due to an alleged discriminatory online application process.
In addition to the monetary settlement, DISH Network has agreed that applications will continue to contain a prominent statement regarding the company's willingness to provide required reasonable accommodations and directions on how to request such accommodations during the application process. DISH Network will also retain outside consultant(s) to conduct a job analysis and validity study, which will evaluate and revise their online assessment to ensure that questions asked on the application relate to the job.
Additionally, DISH Network will designate a compliance officer that will provide training and monitor their application process to ensure compliance with the ADA.
"Employers must ensure that all individuals with disabilities are given an opportunity to request an accommodation, even during the online application process," said Elizabeth Cadle, district director of the EEOC Phoenix District Office. "Employers should know that the EEOC has the same expectations of employers operating in the virtual world as in the real world."
Updated Job Accommodation Network Toolkit Available for Disability Accommodation Resources
Employers seeking information about potential reasonable accommodations, and tips on the interactive process, can turn to the newly updated Job Accommodation Network (JAN) Toolkit.
The Department of Labor provides funding for JAN as a free, comprehensive, online resource to assist businesses in complying with the Americans with Disabilities Act (ADA). According to the website, the Toolkit “provides resources to support organizational efforts to accommodate applicants, candidates, and employees with disabilities; to train those serving in roles critical to managing disability; and to promote disability inclusion throughout the workplace.”
Active Users of Illegal Drugs May Qualify for Disability Discrimination Protection Under Connecticut Law
The Connecticut Fair Employment Practices Act (CFEPA”) protects employees from discrimination on the basis of a present or past history of mental disability. Conn. Gen. Stat. 46a-60(a)(1). “Mental disability” is defined in the statute with precision as referring to a person who has a record of or is regarded as having a mental disorder described in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Conn. Gen. Stat. 46a-51(20).
The DSM-5, which is the latest edition of the Manual, includes addiction to illegal opiate drugs as an Opioid Use Disorder within a more general category of Addiction and Substance Use Disorders. Therefore, under Connecticut law, drug addiction would be a disability entitled to employment protection against discrimination and to a right of reasonable accommodation.
However, a past history of drug addiction, especially if the employee has been in rehabilitation or is receiving treatment, is different from being an active user while engaged in employment. The federal Americans With Disabilities Act (“ADA”), while also recognizing drug addiction (and alcoholism) as disabilities, contains a specific exception for active users: employers may enforce performance and behavior standards, without regard to accommodation, if the unsatisfactory performance or behavior is related to drug use. Some court decisions in the past have interpreted CFEPA to be consistent with the federal ADA with respect to active drug users.
However, a recent decision in the Superior Court in Bridgeport, CT, FBT CV-18-6074882S, has departed from this interpretation. Noting that the absence of any specific exception for active drug use in the CFEPA was a purposeful and meaningful difference between the CFEPA and the ADA, the Court declined to dismiss a wrongful termination lawsuit filed by a police officer who admitted that an “addictive relapse” had led him to obtain heroin from an informant and from an evidence locker at his police station, but who alleged that his department had failed to provide a reasonable accommodation for his disability.
Since this decision was a ruling on a preliminary motion to dismiss the complaint, the core issue of whether the officer’s conduct provided just cause for termination has yet to be decided. However, the take-away from the case is that termination of an employee is not automatically justified simply because the employee tests positive for illegal drug use, or even admits the use. Although current drug use may be a defense to a claim under the ADA, Connecticut employers may still have exposure to a CFEPA claim, and should have objective grounds for termination which can’t be challenged as discrimination or failure to accommodate.
8th Cir.: Dollar General worker didn't need 'magic words' to ask for ADA accommodation
Dive Brief:
- Dollar General failed to extend an accommodation to a worker with anxiety, depression and migraines who requested one, despite never using the "magic words" of the Americans with Disabilities Act (ADA) when making her request, according to the 8th U.S. Circuit Court of Appeals. The worker's failure-to-accommodate claim is now headed to trial (Garrison v. Dolgencorp, LLC., No. 18-1066 (8th Cir. Oct. 3, 2019)).
- When Rochelle Garrison texted her supervisor asking for leave, he responded that none was available and she could remain with the store so long as she "could do the job and not be sick all the time." Garrison quit a week later after leaving Dollar General mid-shift to visit the emergency room.
- The court noted that a reasonable jury could conclude that Dollar General was aware of Garrison's disability, that she requested an accommodation and that had Dollar General engaged in the interactive process, it could have reasonably accommodated her. Noting that the supervisor testified that she would have protected Garrison's job under the Family Medical Leave Act (FMLA) if Garrison had been entitled to FMLA leave, the court said it "stands to reason that Dollar General could have found a way to make leave (or some other reasonable accommodation) work under the ADA too had the supervisor considered it."
Dive Insight:
The ADA requires employers to provide reasonable accommodations for employees with disabilities unless the employer would suffer an undue hardship as a result. Once an employee has requested an accommodation, employers will want to engage in the interactive process to identify possible accommodations.
As the 8th Cir. pointed out, workers do not need to use the language of the ADA in order to make an accommodation request. "It starts when an employee goes into the supervisor's office and says something like 'I'm needing something because of a condition,'" David K. Fram, the director of ADA and EEO services for the National Employment Law Institute, told attendees at a conference last year.
The court noted that Garrison had asked about leave four times even if she never referred to the ADA or used the word "accommodation" and that the supervisor knew that Garrison suffered from various medical conditions. A reasonable jury could conclude that Garrison had requested an accommodation, even if she never used those "magic words," it said.
After a worker makes such a request, Fram said managers ought to follow up immediately by asking: "How can I help you?" From there, managers communicate with the employee to determine a reasonable accommodation, documenting each interaction along the way, as Fram recommended. Once an accommodation has been installed, supervisors should follow up to make sure the accommodation is working well. If it's not, they need to pursue a new one, Fram said.
It's worth noting that workers aren't entitled to the accommodations they prefer, as the 2nd U.S. Circuit Court of Appeals concluded in March. "Employers are not required to provide an accommodation that the employee prefers — all that is required is that the employer provide an effective accommodation," the 2nd Circuit said.
D.C. Sees Latest Test Case for Employees Seeking “Reasonable Accommodation” for Off-Duty Medical Marijuana Use
The American Civil Liberties Union (ACLU) filed suit last week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Department of Public Works, who claims that she was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she is a medical marijuana card-holder under theDistrict’s medical marijuana program. Specifically, Ms. Barber alleges that she suffers from degenerative disc disease which causes her debilitating back pain and for which she was recently prescribed medical marijuana for off-duty use only. When Ms. Barber requested a temporary transfer to a clerical position during the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a “safety sensitive position.”
The District’s actions appear to be in response to a new D.C. law providing employment protections to D.C. government employees who are lawfully enrolled in a medical marijuana program. This new law, which is pending Congressional approval but is expected to take effect October 31, 2019, would prohibit the D.C. government from taking any type of adverse employment action against individuals participating in a medical marijuana program, unless they were working in a “safety sensitive position.” Barber has argued that the D.C. Public Works recently characterized all sanitation workers as “safety sensitive” positions, notwithstanding the fact that she does not operate a vehicle or operate any heavy machinery.
Unlike other employees who have unsuccessfully attempted to seek federal employment protection under the Americas with Disabilities Act (ADA) due to the fact that marijuana remains an “illegal drug” under the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the latest in a recent trend of employees seeking to utilize state or local anti-discrimination laws as a means of requiring their employers to provide “reasonable accommodation” of their off-duty medical marijuana use.
As many of our Blunt Truth readers may recall, a New Jersey Court of Appeals recently revived a funeral director’s medical marijuana disability discrimination suit in Wild v. Carriage Funeral Holdings. In that case, which is set to be heard by the New Jersey Supreme Court this fall, the court held that while New Jersey’s Compassionate Use Medical Marijuana Act does not require accommodation of medical marijuana use, New Jersey’s Law Against Discrimination might require an employer to provide reasonable accommodation and overturned the lower court’s dismissal.
The ACLU seemingly seeks to extend this case law to D.C. with this new lawsuit in an attempt to seek new employment protections for medical marijuana users – particularly for those in the private sector in D.C. where employers are currently not prohibited from taking employment action against those using marijuana for medical reasons consistent with D.C. law. While it remains to be seen how this new lawsuit will be resolved in the courts, it serves as yet another cautionary tale for employers who maintain blanket policies prohibiting any type of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.
Fairfield County Urgent Care Provider Reaches ADA Settlement With US Attorney's Office
The government has reached a settlement with a Fairfield County urgent care provider that was facing allegations it was not in compliance with the Americans with Disabilities Act.
AFC Urgent Care in Norwalk came under file after an ADA complaint was filed by the parent of a child with developmental disabilities, United States Attorney John Durham said. The complaint alleged that a doctor at AFC Urgent Care Norwalk refused to provide the child with a school physical based on the doctor’s determination that the child’s developmental disability made him too medically complex to be seen at an urgent care facility.
Durham said that under federal law, private entities that own or operate places of “public accommodation,” including professional offices of healthcare providers, hospitals, and other service establishments are prohibited from discriminating on the basis of disability.
Under the terms of the settlement agreement, AFC Urgent Care Norwalk will submit a nondiscrimination policy to be approved by the U.S. Attorney’s Office. Once approved, AFC Urgent Care Norwalk will post the nondiscrimination policy on its website and will also physically post the policy in public view at AFC Urgent Care Norwalk's office, which is located on Main Avenue.
Additionally, AFC Urgent Care Norwalk will train its staff members on Title III of the ADA and the new nondiscrimination policy. They will also pay a $2,500 fine to the mother who levied the initial complaint.
“The U.S. Attorney’s Office enforces the Americans with Disabilities Act, which ensures that individuals are able to access places of public accommodation in Connecticut, including medical services at doctors’ offices, hospitals, urgent care and other healthcare facilities,” Durham said. “AFC Urgent Care Norwalk has fully cooperated throughout our investigation and has made clear its commitment going forward to comply in all respects with the ADA.”
How to Improve Mental Health at the Office
It's open-enrollment season--the time when you can change your health care plan for the upcoming year. While all companies don't use the calendar year, many do. You should pay special attention to the mental health coverage in your chosen plan.
If you're the HR person tasked with finding the best plan for your company for 2020, it's probably already done with the contracts signed, but keep in mind the importance of mental health care coverage.
You may say, "This isn't important. No one at the office needs this." First of all, doubtful. Second, nobody may need coverage for a broken leg today, but they may slip and fall tomorrow. Your office may be cancer-free today, but not tomorrow. You'd never say, "We don't need good cancer coverage, because no one has cancer!"
The first and best step that HR can make toward battling mental health problems is to find the best possible health care plan.
This is not easy. Mental health care is expensive. So, here are some slightly cheaper ways HR can help out.