The Hershey Company Sued by EEOC For Disability Discrimination
Global candy manufacturer The Hershey Company violated federal law when it refused to accommodate an employee with a disability and chose instead to fire her, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit.
According to EEOC's suit, Hershey was aware of Kristina Williams's herniated discs and her lifting restrictions at the time of her hire in 2011 as a part-time retail sales merchandiser. Williams was diagnosed with spinal stenosis and took a short medical leave of absence in early 2015. The EEOC's investigation found that when Williams requested flexibility to divide her daily break into smaller portions to help her stay within her lifting restrictions, Hershey refused to allow her to return to work, effectively suspending her for three months. Finally, in a letter dated Aug. 19, 2015, Hershey denied her request for accommodation and instead fired her.
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to qualified employees who have a disability. After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC filed its lawsuit (EEOC v. The Hershey Company, Civil Number 2:17-CV-01092) in U.S. District Court for the Western District of Washington. The agency seeks monetary damages on behalf of Williams, training on anti-discrimination laws, posting of notices at the worksite, and other injunctive relief.
"Employers cannot ignore a request for a reasonable accommodation from an employee with a disability," said Nancy Sienko, director of the EEOC's Seattle Field Office. "The law requires an employer to explore possible solutions to ensure that a worker can perform the essential functions of her job."
EEOC Supervisory Trial Attorney John Stanley said, "Employers cannot unilaterally decide to respond to an injury by refusing to allow an employer to return to work. According to the ADA, the exploration of possible accommodations must include the input of the employee."
According to company information, The Hershey Company is based in Hershey, Pa., employs over 20,000 people in 37 different states and had over $7.38 million in net sales in 2015, the year in which Williams last worked in the company's Seattle District.
Temporary Worker Not Entitled To Leave As A Reasonable Accommodation
JD Supra
The Tenth Circuit recently addressed whether an employer had failed to make a reasonable accommodation under the Americans with Disabilities Act, 42 U.S.C. § 2000e et seq., (“ADA”) regarding a temporary worker’s request for time off as a reasonable accommodation and although it affirmed the Colorado District Court’s grant of summary judgment in favor of the defendants, it held that the McDonnell Douglas burden-shifting framework was not applicable in a failure-to-accommodate case in the 10th Circuit because such cases do not require the plaintiff to demonstrate discriminatory intent by the employer.
Is Your Website Accessible to Disabled Users? If Not, Courts Say You Could Be Violating the ADA
JD Supra
Yes, seriously. This is no longer a remote threat cautioned by overzealous lawyers. This is now a real threat that business owners should address now. If you own and/or operate a business, and the business has a website that markets its goods or services, you could be liable for violating the Americans with Disabilities Act (“ADA”) if your website is not accessible to disabled users. That means ensuring that your website content can be converted to audio or text depending on the user’s disability. This can be accomplished through the use of conversion software—something you’ve probably never heard of because you delegated website management to someone else. Recent court rulings from various jurisdictions—including a particularly alarming ruling out of Florida—have ordered businesses to make their websites accessible and held business owners liable for the disabled plaintiff’s attorney fees.
Concerned enough to learn more? You should be.
Accommodating Workers with a History of Substance Abuse
SHRM
Employers don't have to accommodate any alcohol or illicit drug use in the workplace, but they must be careful not to discriminate against workers with a history of substance abuse who are no longer using.
The Americans with Disabilities Act (ADA) protects workers from discrimination based on a qualifying disability or a perceived disability—including alcoholism and past illegal drug use, explained Todd Wulffson, an attorney with Carothers DiSante & Freudenberger in Orange County, Calif.
Therefore, employers should try to arrange a reasonable accommodation if, for example, an employee needs to leave early for an Alcoholics Anonymous meeting, Wulffson explained.
The ADA covers businesses with 15 or more employees and protects workers with a history of illicit drug use who:
- Have successfully been rehabilitated and are no longer using illegal drugs.
- Are currently participating in a rehabilitation program and are no longer using illegal drugs.
- Are erroneously regarded as illegal drug users.
Alcoholism may also be considered an ADA-qualifying disability, but employers may:
- Prohibit the use of alcohol in the workplace.
- Forbid employees from being under the influence of alcohol in the workplace.
- Hold employees with alcoholism to the same performance standards as other employees, even if alcoholism is the reason for substandard performance.
"All employers should have a clear, written drug and alcohol policy in place that is supportive and written in a way that employees with addiction problems feel safe to come forward," said Rebecca Flood, CEO and executive director at New Directions for Women—a drug and alcohol rehabilitation program for women in Southern California.
Employers Still Struggle With Accommodating Those With Disabilities, Injuries
Managed Care magazine
Employers should do their best to accommodate workers with disabilities or who are recovering from injuries, but there’s been little change in the total unemployment numbers of such workers since the passage of the Americans With Disabilities Act in 1990, Workforce reports. But just what constitutes an undue hardship? It’s worth knowing. Attorney Shawn Toor tells the publication: “The nature and cost of the accommodation needed, the financial resources of the employer and the structure of the employer’s operation constitute undue hardship.”
Disabled 11-year-old's father sues Colonial Williamsburg for Discrimination
Williamsburg Yorktown Daily
A Maryland family is suing Colonial Williamsburg on behalf of their 11-year-old son, who they claim was kicked out of Shields Tavern for bringing in his own food during a class trip. The child, who is referred to only as J.D. in the suit, has a “severe” gluten allergy as the result of an autoimmune disorder, the suit claims.
The suit, filed in federal court Wednesday night, claims the Foundation violated the Americans with Disabilities Act by removing J.D. from the restaurant after the child’s father, Brian Doherty, began serving him “safe food” that was not on the tavern’s menu.
Will Employers Be Forced To Accommodate Employees Who Test Positive For Marijuana?
JD Supra
On July 17, 2017 the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies. While this decision is binding only in Massachusetts, it could represent the beginning of a significant shift in how employers will need to deal with employees using marijuana to treat a disability.
Is Medical Marijuana A Reasonable Accommodation? Mass. Court Says … Possibly
Lexology
On July 17, 2017, the Massachusetts Supreme Judicial Court (“SJC”), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual’s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies.
Despite the proliferation of medical and recreational marijuana state laws across the country in recent years, employers have been relatively incubated from exposure for refusing to employ individuals who use marijuana. Indeed, many state laws contain explicit protections for employers. According to the SJC’s decision in Barbuto v. Advantage Sales and Marketing, LLC, however, employers in Massachusetts should pause before refusing to employ qualified individuals who use marijuana off-duty for medicinal purposes.