Cooper Machine Company to Pay $20,000 to Settle Disability Discrimination Lawsuit
According to the EEOC's lawsuit, on or about April 17, 2017, Janet Bryant, who worked for the company as a purchasing agent, was fired by the company's chief financial officer after informing the company that she was required to take medication because of her disability, anxiety disorder.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Equal Employment Opportunity Commission v. Cooper Machine Company, Inc., Civil Action No. 1:18-cv-00085-JRH-BKE in U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.
Under the consent decree settling the suit, Cooper Machine Company will pay Bryant $20,000 in lost wages and compensatory damages. In addition, Cooper Machine Company will be required to distribute a formal, written anti-discrimination policy to all employees at the site where the disabled employee worked. The decree also requires that the company provide annual equal employment opportunity training to its managers, supervisors and employees. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.
"Disabilities are not to be the basis for terminating employees, if the employee can perform the essential functions of a job," said Antonette Sewell, regional attorney for the Atlanta District Office. "Ms. Bryant was performing well but was terminated solely because of her condition. This is unlawful and unacceptable, and the EEOC is here to fight for such people's rights."
Darrell Graham, acting director of the EEOC's Atlanta District Office, added, "Employers must not fire employees merely because they require some form of medication. If that practice were legal, it would devastate the American workforce."
Universal Diversified to Pay $30,000 to Settle EEOC Disability Discrimination Lawsuit
According to the EEOC's lawsuit, a sheet metal worker / installer lost his left eye in injury sustained outside of the workplace. After recovering from the injury and being cleared to return to work by his medical provider, his employer, without any assessment, refused to allow him to return to work.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of Florida (EEOC v. Universal Diversified Enterprises, Inc., Case No. 18-cv-23575-UU) after first attempting to reach a pre-litigation settlement through the EEOC's conciliation process.
In addition to the $30,000 in damages, the five-year consent decree settling the suit requires Universal Diversified Solutions to adopt and distribute a comprehensive ADA policy; schedule yearly management and employee training on the ADA that the EEOC can attend; post a notice about the lawsuit; and report all complaints of disability discrimination or request for accommodation to the EEOC.
"Employers must understand that they cannot treat employees differently based upon stereotypes and unfounded fears," said EEOC Miami District Director Michael Farrell. "We are glad to see this company will be taking steps to ensure its staff is educated about federal disability discrimination law."
EEOC Regional Attorney Robert Weisberg added, "In the past year, the Miami District Office has brought enforcement actions on behalf of many people with visual, hearing and physical impairments who were unlawfully denied employment based on their disabilities. We will continue to protect the rights of perfectly capable workers who are denied opportunities on such an unfair and illegal basis."
Golden Corral to Pay $31,000 to Settle EEOC Disability Discrimination Suit
According to the EEOC's lawsuit, B. Fehr, LLC, doing business as Golden Corral, fired Alicea Cruce in May 2016 after it accused her of "being unwilling or unable to control her epilepsy."
This alleged conduction violates the Americans with Disabilities Act (ADA), which protects individuals from discrimination based on their disability or perceived disability. The EEOC filed suit (EEOC v. B. Fehr, LLC d/b/a Golden Corral, Civil Action No. 1:18-cv-00145-JRH-BKE) in U.S. District Court for the Southern District of Georgia, Augusta Division after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.
In addition to providing monetary damages to Cruce, the consent decree settling the lawsuit requires Golden Corral to implement and distribute a policy prohibiting discrimination. The decree also requires the company provide equal employment opportunity training to its management and non-management employees. The two-year decree further requires the restaurant to post a notice to its employees about the lawsuit and to provide semi-annual reporting to the EEOC about disability discrimination complaints.
"The agency is pleased that Golden Corral agreed to resolve this case quickly and to train its employees on its obligations under the ADA," said Antonette Sewell, EEOC Atlanta District Office regional attorney. "The EEOC will continue its efforts to eradicate discrimination suffered by employees on the frontlines," Darrell Graham, acting district director of the Atlanta District Office, said. "The employer apparently concluded Ms. Cruce's condition posed a direct threat to herself or others in the workplace, however, that determination must be based on actual evidence and not mere speculation."
Worker fired for panic attacks can take ADA claim to a jury, court says
HR Dive
Dive Brief:
- A car dealership employee with anxiety, depression and panic attacks can continue her claim that her employer violated the Americans with Disabilities Act (ADA) by firing her because of her disabilities, a federal district court ruled (Equal Employment Opportunity Commission v. Crain Automotive Holdings, LLC No. 17-cv-00627 (E.D. Ark. April 11, 2019)).
- Contrary to her employer's argument, a reasonable jury could conclude that Judith Vaughan has a disability, the court found, as her anxiety, depression and panic attacks interfered with her thinking, breathing and communicating — major life activities, as defined by the ADA. When she first experienced chest pains that were symptomatic of panic attacks, Vaughan notified her supervisor and later followed up to inform her that she had experienced a panic attack. She continued to communicate with her supervisor as she underwent medical treatment and provided doctors' notes and other forms of documentation.
- Her employer also argued it did not know she was disabled and therefore couldn't have fired her because of her disability, but the court denied summary judgment, saying a jury could find otherwise: Vaughan testified that her supervisors informed her during a meeting that "'due to [her] health, it wasn't going to work out and [she] should take time for [her]self,'" according to court documents.
Dive Insight:
HR professionals and managers have been vocal about the confusiondisability and absence management creates. Only 1 in 4 HR professionals report having a successful absence and disability management program, according to The Standard's Absence and Disability Readiness Index. The recent report found that employers are particularly flummoxed by legal compliance and accommodations.
Hope for the 75% of HR professionals perplexed by absence and disability management lies in education and training, according to Ogletree Deakins Office Managing Shareholder Gregory J. Hare. "Every single manager needs to know a little something about employment law 101," he told attendees at a conference earlier this year. Managers speak on behalf of their companies, so when they make a mistake in managing someone's employment, the company is held accountable. This means managers need training, Hare said.
With training, managers and HR professionals can come to understand that the ADA requires employers to provide employees accommodations that enable them to perform the essential functions of their jobs. There are some limitations imposed, of course; an employer does not need to provide an accommodation that causes it an undue hardship. But employers need to be prepared to provide accommodations, which the U.S Equal Employment Opportunity Commission says can include:
- Modified work schedules or supervisory methods;
- Altering how or when job duties are performed;
- Telework beyond that provided to others;
- Changes in workplace policies (e.g., concerning granting breaks or providing leave);
- Accessible parking if the employer provides on-site parking to all employees; and
- Reassignment to another job.
6th Cir.: Employee fired for health issues has viable ADA 'regarded as claim
HR Dive
Dive Brief:
- An employee with heart problems, who was told he was fired due to "health issues and doctors' appointments," was allowed to proceed with his claim that he was regarded as disabled and fired on that basis, in violation of the Americans with Disabilities Act (ADA) (Baum v. Metro Restoration Services, Inc., No. 18-5699 (6th Cir. April 11, 2019)).
- The employee, Jonathan Baum, was unable to prove he had a disability under the ADA because he failed to use his doctor, or anyone else with specialized medical knowledge, as an expert witness, so he lacked the evidence he needed to create a viable issue of fact on this point.
- Although the employer claimed that Baum was fired due to "excessive absenteeism and failure to perform his job duties," the stated reason for firing him — health issues and doctors' appointments — could allow a jury to find that Baum was perceived as having a physical impairment and was fired because of that perception. Accordingly, the 6th Circuit reversed a lower court's ruling of summary judgment for Baum's "regarded as" claim, allowing it to proceed.
Dive Insight:
The complicated and costly nature of absence and disability management can create headaches for employers and their HR departments. But a solid comprehension of relevant laws and thorough training can enable employers to treat workers with disabilities in a way that complies with legislation and allows business to continue functioning.
Depending on an employee's condition, it may be appropriate for an employer to grant leave under the Family and Medical Leave Act on either a one-time or intermittent basis. In some cases, the ADA may even require leave beyond what FMLA guarantees. It may also be possible to work with the employee to find a reasonable accommodation that enables them to perform the essential functions of their job.
For some jobs, regular attendance is considered an essential function, meaning it would not be reasonable for an employer to accommodate an employee by allowing them to work from home. For other types of jobs, however, an employee need not be in the office every day. As remote work becomes more common across the workforce generally, it becomes a more reasonable — and less burdensome — ADA accommodation.
There are limits, of course, to any accommodation. An employee must still be able to perform the essential functions of his or her job, with or without reasonable accommodations, to be considered a qualified individual. Earlier this year, the 8th Circuit ruled that a meat and processing facility worker in Iowa who racked up 195 unplanned absences in a single year did not qualify for ADA protection.
What's "reasonable" depends on a number of different factors, including the type of work the employee performs, the nature of the employee's disability, and the specific tasks that constitute the essential functions of the employee's job. It's important to keep an open dialogue with employees and try to work out a mutually satisfactory arrangement in good faith.
Managers should understand all of this, Ogletree Deakins Office Managing Shareholder Gregory J. Hare told attendees at a conferenceearlier this year. "Every single manager needs to know a little something about employment law 101," he said. Why? Managers speak on behalf of the company, Hare said. When they make a mistake, the company may be held accountable.
Attorneys Sued by Riverside County for Lawsuits Targeting Businesses
NBC Southern California
The defendants are accused of filing more than 100 lawsuits against individuals and small businesses in Riverside County alleging violations of the American with Disabilities Act.
Second Circuit Adopts Heightened “But-For” Standard But Rejects “Sole-Factor” Test for Disability Discrimination Claims
Lexology
In a recent 2-1 decision, the Second Circuit Court of Appeals rejected its prior precedent,1 joining the Fourth,2 Sixth,3 and Seventh4 Circuits in adopting a “but-for” causation standard in disability discrimination cases brought under the federal Rehabilitation Act of 1973.5 In doing so, the Second Circuit explicitly noted that, with respect to employment discrimination claims, the Rehabilitation Act incorporates the same causation standard as appropriate under Title I of the Americans with Disabilities Act of 1990, and amendments thereto (ADA).6
Typically, the burden of establishing that discrimination was the sole cause for an adverse action is more difficult than showing that but-forthe protected characteristic, the adverse action would not have taken place. Under the “sole-factor” standard, the claimant must prove that nothing else motivated an employer’s decision. However, under a “but-for” analysis in a disability discrimination case, claimants must show that, even if other factors were considered, the adverse action would not have occurred if the employee did not have a disability. In other words, the adverse action occurred because of the employee’s disability, even if the disability was not the sole cause.
Employing the “but-for” standard, the Second Circuit in Natofsky v. City of New York7 upheld summary judgment in favor of the employer. The court rejected, however, the lower court’s sole-factor analysis under which it concluded that no reasonable jury could find the employee suffered an adverse action solely because of his disability.
The employee, relying on prior Second Circuit precedent, argued that he should have to show only that his disability was a motivating factor or that there were mixed motives—one of which was his disability—for the adverse action. The majority was not persuaded by the employee’s contention that this lower causation standard should apply.
Instead, the Second Circuit concluded that, unlike certain Title VII claims, the ADA does not expressly incorporate a motivating factor standard and there was nothing to suggest that Congress intended to incorporate such a standard into the ADA. The majority followed the U.S. Supreme Court’s similar reasoning in adopting a “but-for” standard for age discrimination and Title VII retaliation claims8 by reading the ADA’s prohibition of discrimination “on the basis of disability” language as implicitly incorporating a “but-for” causation standard. The Second Circuit majority concluded that “on the basis of” is synonymous with the phrase “because of”—which, in turn, means that but-for the employee’s disability the adverse action would not have occurred.
The Second Circuit’s opinion carries implications both due to the merger of the ADA causation standard into Rehabilitation Act employment discrimination claims and due to the court’s agreement with three other circuits that the “but-for” standard applies to ADA claims. In the wake of the Supreme Court’s decisions incorporating a “but-for” causation standard in age discrimination and Title VII retaliation claims, the Second Circuit’s opinion may be emblematic of a burgeoning trend amongst circuit courts to incorporate this heightened standard into other types of employment law claims.
Employers should be mindful of these evolving causation standards when defending against disability discrimination claims. While, depending on the jurisdiction, employees may not need to show that their disability was the only reason an adverse action was taken, employers should be prepared to counter arguments that but-for the employee’s disability the employer would not have undertaken the action at issue or made the same decision. These standards will serve as guideposts for employers both in defending against disability discrimination claims (including development of jury instructions) and minimizing risk when making future employment decisions.
'Reasonable accommodations:' A cautionary tale
BenefitsPro
On April 12, in the U.S. District Court for the Western District of Pennsylvania, a jury returned a verdict that serves as a reminder of the importance of treating mental health issues with sensitivity and consistent with the Americans with Disabilities Act (ADA) and taking a practical approach to reasonable accommodations.
Need to Know: What Are Disability Laws?
Multiple Sclerosis News Today
Disability laws — at a glance
You’ve heard of the ADA, but are you aware of the span of its reach?
I’ve never considered myself “disabled” because I don’t currently use a handicapped placard, sticker, or assistive device for my MS.
When I paid a visit to the DLC booth, I noted that living with MS, regardless of whether one qualifies for social security benefits, is still considered disabling from a legal standpoint.
The ADA enacts legal language defining a person with a disability as “a person who has a physical or mental impairment that substantially limits one or more major life activity.”
This broad umbrella covers my MS peers and me, even when we don’t outwardly claim the label.
Following are summaries of the various legal protections we can access as people with MS, as outlined by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP).
Americans with Disabilities Act (ADA)
The ADA “prohibits discrimination against people with disabilities and guarantees equal opportunities for individuals with disabilities in employment, transportation, public accommodations, state and local government services, and telecommunications.”
Rehabilitation Act
This law “authorizes funding for various disability-related purposes and activities, including state vocational rehabilitation (VR) programs, independent living programs, training and research, and the work of the National Council on Disability.”
School Board Not Liable for Disciplining Disabled Educator's Excessive Absenteeism or Denying Her Leave Requests
Lexology
Since Congress passed the Americans with Disabilities Act (ADA) in 1990 and state legislatures enacted their own protections requiring employers to accommodate disabled workers, courts have grappled with the reasonableness of accommodating an employee’s excessive absenteeism caused by a disability. In Barbabosa v. Board of Education of the Town of Manchester, the Connecticut Appellate Court faced that question, holding on April 23, 2019, that attendance was an essential function of Barbabosa’s job and, therefore, her employer was not liable for either disciplining her for excessive absenteeism or denying her requests for extended intermittent leave.
The ADA defines “disability” as, inter alia, an impairment that substantially limits a major life activity. Barbabosa sued under the Connecticut Fair Employment Practices Act (CFEPA), which, like most other state and local anti-discrimination statutes, follows on the heels of the ADA. If an employee is disabled, the ADA and the CFEPA require an employer to provide a reasonable accommodation that would enable the employee to perform the essential functions of his or her job. An employer need not provide the exact accommodation that a disabled employee requests, only one that is reasonable. An accommodation that eliminates an essential function of an employee’s job is per se unreasonable. Whether a job duty is considered an essential function depends on the nature of the job.
Barbabosa is a paraprofessional with the Manchester Board of Education and, at the time she initiated her lawsuit, had held that position for approximately nine years. She claimed she had a number of health conditions rendering her disabled. While her evaluations generally reflected that she performed her job well when she attended work, in almost every year of her employment she exceeded her allotted number of personal leave days and was frequently tardy, causing documented disruption to the educational environment. She claimed her attendance problem was the result of her disability, and on two occasions asked for extended intermittent leaves of absence as an accommodation. The Board of Education disciplined her for excessive absenteeism and denied her requests for extended intermittent leave. Barbabosa’s lawsuit claimed the discipline and denial of her accommodation requests violated the CFEPA.
In affirming the Superior Court’s order granting summary judgment to the Board of Education, the Connecticut Appellate Court relied on federal ADA law. First, it held that, as a matter of law, attendance is an essential function of Barbabosa’s job. For guidance, the court examined three federal cases involving educators: Pierce v. Highland Falls-Fort Montgomery Central School District, Ramirez v. New York City Board of Education and Mescall v. Marra, which all held attendance is an essential job function of an educator. Like in those cases, the Appellate Court looked to the relevant sections of the collective bargaining agreement, the union co-presidents’ testimony as to the importance of attendance, letters written to Barbabosa stressing the negative impact of her absences on the educational environment and Barbabosa’s evaluations outlining the same. The court rejected Barbabosa’s argument that her generally positive performance evaluations precluded summary judgment since the evaluations also noted concerns about her absenteeism and punctuality. Quoting the Superior Court’s decision, the Appellate Court stated that although “the evaluations of the plaintiff show that she can perform the duties of a paraprofessional when she goes to work, [] the plaintiff is absent far too often.” (Emphasis in original).
Second, the Court held that an extended intermittent leave is not a reasonable accommodation where, as in Barbabosa’s case, it eliminates the essential function of attending work. Again relying onPierce, Ramirez and Mescall and the same evidence outlined above, the Appellate Court held:
[T]he plaintiff’s proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address. Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences[,]…[Barbabosa’s request] would only exacerbate her existing attendance issues and would further undermine her ability to perform an essential function of her employment, namely, maintaining regular attendance.
Although this case analyzed Connecticut state law, the Appellate Court relied heavily on federal law in reaching its conclusion, making it instructive to all U.S. employers, especially those in the educational field. The take-aways from this case are clear: an employer may discipline an employee who fails to meet attendance guidelines that are part of the employee’s essential job functions even where absenteeism is the result of a disability, and an employee’s request for extended intermittent leave to accommodate a disability that renders her otherwise unable to meet attendance guidelines is per se unreasonable. This decision also highlights the importance of documentation. The school board’s explicit documents showing the importance of attendance, and documented communication to Barbabosa about the disruption her absences caused, weighed heavily in favor of a finding in the school board’s favor. Employers who confront these difficult issues should document attendance issues as soon as they begin, and before taking the final step of disciplining an employee or denying a request for accommodation like Barbabosa’s, consult with an attorney or human resources professional to ensure the reasoning of the Barbabosa decision is likely to lead to the same outcome in the employer’s specific scenario.
Lawsuit alleges negligence toward mentally ill inmates
Pamplin Media Group
The sister of a former Columbia County Jail inmate has filed a lawsuit against the county for allegedly failing to provide adequate care for a mentally ill inmate.
The lawsuit, filed April 15, alleges that the former Columbia County sheriff, Jeff Dickerson, "failed to properly train corrections deputies how to interact with and attend to mentally ill inmates."
"The result is that mentally ill inmates are punished for behaviors which are nothing more than symptoms of mental illness. These punishments include the use of tasers, stun shields, and even dog bites," the plaintiff's attorney, John E. Gutbezahl, wrote in the filing.
The suit was filed in federal court by Gutbezahl, an attorney for Michelle Bolden. Bolden is the sister and legal guardian William Derby, a mentally ill former inmate at the Columbia County Jail.
The lawsuit alleges the defendants were negligent and violated Derby's rights under the eighth and 14th amendments, which bar cruel and unusual punishment and call for equal protection under the law. The suit also alleges that Columbia County violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act.