The Elements Make All the Difference—Sixth Circuit Affirms Summary Judgment in Favor of Coal Brokerage Company in Age and Disability Case
Lexology
When evaluating a discrimination case, one can never forget to go back to the basics and start with the elements of the cause of action. For example, if you are facing an age discrimination claim, is the employee in the protected class, i.e., over 40 years old? Were they replaced by someone outside of that class? A lawsuit cannot move forward if a plaintiff fails to provide evidence to support each element required by law. For that reason, the first line of defense for an employer accused of discrimination should be to attack the foundation of an employee’s claims. In Stearman v. Ferro Coals, Inc., the Sixth Circuit reminds us that an employee’s misguided theories about an adverse employment decision are insufficient to survive summary judgment in an age and disability case.
Reassignment: The Often-Overlooked Accommodation of Last Resort
The National Law Review
What happens when, at the end of a good faith interactive dialogue and despite the parties’ best efforts, there is apparently no reasonable accommodation that will enable the employee to perform the essential functions of their job? Can the employer safely terminate, resting assured it has done all it can and that such an employee is not a “qualified individual” under the ADA? Not if the employer has at least 15 employees. The Americans with Disabilities Act (ADA) expressly identifies reassignment as an accommodation that will be reasonable in some circumstances. Employers who view the reasonable accommodation process as limited to the employee’s own job are at significant risk of disability discrimination claims.
When must an employer consider reassignment?
Reassignment is considered an accommodation “of last resort,” meaning that there is no obligation to consider reassignment to another position until it is determined that the employee cannot be accommodated in their own position.
What are the limits of an employer’s obligation to reassign a disabled employee?
The law is clear that an employer need not create a position in order to make reassignment possible; nor is an employer required to bump an employee from a position in order to create a vacancy. The reassignment accommodation is limited to existing jobs that are currently vacant, or that the employer knows will become vacant in near future. Employers do not need to consider positions for which the employee is unqualified. Moreover, if the only available and suitable position constitutes a demotion or pays less than the employee is earning in their current job, the employer may nonetheless reassign the employee to that position, reducing the employee’s rank or compensation as appropriate for the new position.
Does reassignment simply mean allowing the employee to compete for a vacant position, or must an employer prefer a minimally qualified disabled candidate over other, more qualified, candidates?
The answer to this question is unsettled, and varies by jurisdiction. The Equal Employment Opportunity Commission (EEOC) has long taken the position that a disabled employee unable to perform their own job and minimally qualified for a vacant position must be placed in the vacant position, without being required to compete for it, even if there are other more qualified applicants for the job and even if the employer has a best-qualified applicant policy.
Several United States Circuit Courts of Appeal (e.g. 7th, 10th, and D.C.) have effectively agreed with the EEOC, either expressly requiring preferential treatment for the disabled individual requiring reassignment or holding that, to be meaningful, reassignment as a reasonable accommodation must require more than the mere opportunity to apply and compete for a position. Others, however, (e.g. 5th, 6th, 8th, and 11th) have held that the ADA does not require “affirmative action.” The 1st Circuit Court of Appeals has not yet been called upon to confront the issue directly, but a statement in a relatively recent 1st Circuit decision has led many to speculate that, when forced to decide the question, it will hold that preferential reassignment is required. Audette v. Town of Plymouth, 858 F.3d 13, n. 10 (1st Cir. 2017).
Although the United States Supreme Court has not weighed in on this precise question, it has held that an employer was not required to reassign a disabled employee to a vacant position when another employee was entitled to the position under an established seniority system. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Whether the Court would find that a best-qualified applicant policy is akin to a seniority system is an open question, and the answer could depend, at least in part, on whether the best-qualified applicant policy is well-established, reduced to writing, and consistently followed by the employer, as the seniority system was in Barnett.
While different jurisdictions have defined the scope of the reassignment accommodation differently, one thing is clear: the ADA expressly contemplates that reassignment may be a reasonable accommodation. Thus, when the interactive dialogue fails to identify an effective accommodation that would keep the employee in their current job, the employer must consider whether there are other vacant positions the employee can perform, with or without reasonable accommodation.
Navigating the Murky Waters of Accommodations of Pregnancy-Related Limitations
Lexology
There has been increasing media coverage regarding the extent of an employer’s obligation to accommodate pregnancy-related limitations that fall outside the scope of the Americans with Disabilities Act (ADA). While the Pregnancy Discrimination Act (PDA) does not require employers to provide accommodations to employees due to pregnancy or pregnancy-related limitations, it creates a potential trap for the unwary in which employers may be liable for pregnancy discrimination if they fail to provide certain accommodations in connection with pregnancy or pregnancy-related limitations.
Couple sue Greene, Tweed & Co. for alleged noncompliance with ADA
The Pennsylvania Record
A couple are suing Greene, Tweed & Co. Inc., a Pennsylvania company, citing alleged discrimination, failure to uphold Americans with Disabilities Act regulations, loss of consortium, racial discrimination, retaliation, and violation of the Family and Medical Leave Act (FMLA).
Emmanuel and Leonette Stocker filed a complaint on Oct. 19 in the U.S. District Court for the Eastern District of Pennsylvania against Greene, Tweed & Co. Inc. alleging that the Pennsylvania company violated rights of employees to family and medical leave.
According to the complaint, the plaintiffs allege that Emmanuel Stocker has suffered an adverse employment action by being wrongfully terminated on March 7, 2017, from his position as a production machinist for the defendant's manufacturing plant at 2075 Detwiler Road in Kulpsville as retaliation by the defendant for exercising his rights under the FMLA and for filing a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) for defendant's discrimination towards plaintiff on the basis of race, disability, and retaliation. Additionally, co-plaintiff was deprived of her spouse's companionship, affection, society, moral support and solace.
The plaintiffs hold Greene, Tweed & Co. Inc. responsible because the defendant allegedly failed to take action to address the ongoing harassment of Emmanuel Stocker, and failed to take steps to address Emmanuel Stocker's medical conditions resulting from and exacerbated by the ongoing harassment and unwarranted discipline, and terminated plaintiff as retaliation for taking FMLA leave.
The plaintiffs request a trial by jury and seek judgment against defendant for compensatory damages in excess of $150,000, punitive damages, attorney's fees, front pay and back pay, and any other relief the Court deems necessary and fair. They are represented by Gerard Egan and Brian McCarthy of Egan & McCarthy, Attorneys at Law in Exton.
The U.S. District Court for the Eastern District of Pennsylvania Case No. is 18-cv-04503.
UPS cut pay of sidelined drivers with medical issues but not DUIs. Judge: it’s illegal
Kansas City Star
The EEOC filed a disability discrimination lawsuit against UPS and the Teamsters’ national negotiating committee.
UPS and the union have fought the lawsuit for years. This was part of their negotiated contract, UPS argued in court.
In court filings, UPS attorneys pointed out that the contract allows the driver sidelined by medical reasons to replace, or “bump,” one of the dock workers. It ensured he’d have work, though they acknowledged it would be at the 90 percent pay rate.
In contrast, a driver sidelined for a DUI or other non-medical reasons couldn’t bump anyone. He’d earn 100 percent pay but might not get any work if the dock didn’t need additional help.
“That’s not the point. That doesn’t make it legal,” Doty said.
A federal judge has agreed.
“There are no circumstances under which paying a disabled driver 90 percent of what others earn is legal under” the Americans with Disabilities Act, Chief U.S. District Judge Julie A. Robinson said in a Nov. 1 order.
Robinson was ruling on UPS’ effort to overturn her previous decision in the case. It had prohibited the company from shaving pay of disabled drivers it transfers to other jobs and banned UPS and the Teamsters from negotiating labor deals that included such terms.
She has not yet ruled on Diebold’s complaint about his specific case.
UPS is appealing the case to the 10th Circuit Court of Appeals.
In an emailed statement, UPS said it has “robust policies regarding the accommodation of disabilities under the Americans with Disabilities Act” and state laws. “While UPS disagrees with the EEOC’s position and the Court’s opinion, the company has nonetheless agreed voluntarily to modify its practice to address the EEOC’s or the Court’s concern.”
Officials for the Teamsters negotiating committee declined to comment.
Robinson’s ruling came the same day that UPS Freight began to “empty” its network of freight. It has been refusing new cargo from commercial shippers in anticipation of a Teamsters strike.
Workers rejected one contract offer. Any disruption is not expected to interfere with UPS consumer package deliveries.
Continued negotiations have led to a vote Friday, Nov. 9, on what UPS calls its “last, best and final” offer to the union. A 30-day extension of the current agreement expires Monday, and the union has told members there would be a strike if they reject the offer.
Should I Disclose My Autism to a Prospective Employer?
U.S. News & World Report
IF YOU HAVE AUTISM spectrum disorder, should you disclose that fact when you're interviewing for a job? If you've been hired without sharing your spectrum disorder with your boss, should you tell him or her about it?
For people with ASD, whether to disclose their diagnosis is a complex and deeply personal question, says Leslie Long, vice president of adult services at Autism Speaks, a research and advocacy organization that focuses on autism across the spectrum and throughout the life span of people with ASD and their families. "Disclosure is a very individualized decision," Long says. The Americans with Disabilities Act prohibits employers from discriminating against people with ASD. It requires employers with 15 or more workers to provide a reasonable accommodation for an employee with a disability.
Though the law is clear, and some firms recruit people on the autism spectrum, there's no guarantee a prospective employer or a work supervisor will welcome someone with ASD. Long has spoken to people with ASD who have disclosed their spectrum disorder to a boss or a prospective employer. Some had good experiences, in which their boss or potential manager was supportive and, when needed, provided reasonable accommodations called for by the ADA. Other people with ASD have told her they felt stigmatized after disclosing their spectrum disorder. "I don’t think people (with ASD) should disclose unless they need to," Long says.
Ask Amy: Can a Company Ask About Your Mental Health History on an Audition Application?
pointemagazine.com
I was applying to audition for this ballet company, and the form asked if I had a history of mental issues (i.e., eating disorders, anxiety, depression) and to give a detailed description of them and steps taken for treatment. Is this something that companies normally take into account during auditions? Moreover, are they allowed to ask this? I felt so strongly about not wanting to give that information that I decided not to apply. —Melanie
How Can We Ensure the Disabled Community Has Equal Access to Cannabis?
MERRY JANE
New initiatives are seeking to overcome the challenges and discrimination faced by disabled medical marijuana users.
An MLS is making it easier to find ADA-compliant properties
Inman.com
A multiple listing service in the Pacific Northwest has rolled out a new system that makes it easier to list and search for properties that have features catering to disabled homebuyers.
The new accessibility system will be part of the broker-owned Northwest Multiple Listing Service, which operates primarily in western and central Washington. It’ll work by presenting agents and brokers with 12 different checkboxes when they go to list a property. The checkboxes cover categories such as “accessible approach,” “accessible entrance,” “modification for hearing/vision” and “accessible elevator or lift installed.”
Brokers on the other end who are trying to find properties for their clients can then filter their search results according to those categories.