Bipolar disorder not obvious from erratic, rude behavior, so ADA claims fail
(CCH Netnews)
Because a long-time employee admitted that people skills were essential to her job and she did not disclose to her employer that her recent rudeness was due to her bipolar disorder, let alone suggest accommodations that would allow her to do her job, she failed to show that she was a "qualified" individual under the ADA. Summary judgment was properly granted on her discriminatory termination claim, ruled the Eighth Circuit, which also affirmed summary judgment on her failure-to-accommodate claim because an employer is not required to guess an employee's disability (Walz v Ameriprise Financial, Inc, 8thCir, March 9, 2015, Gruender, R.).
Save Edge to Pay $30,000 to Settle EEOC Disability Discrimination Suit
Save Edge, Inc., a Xenia, Ohio-based industrial file sharpening company, will pay $30,000 to a rejected job applicant and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.
According to the EEOC's lawsuit, Save Edge offered applicant Anthony Hoover an operator position but rescinded it once it learned that he took a prescription drug for a seizure disorder. The EEOC said Save Edge withdrew the job offer because it regarded Hoover as a disabled individual incapable of doing the job.
Discrimination against a person because he or she is disabled or regarded as disabled violates the Americans with Disabilities Act (ADA). The EEOC filed suit (3:14-cv-0211) in U.S. District Court for the Southern District of Ohio, Dayton Division, after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to providing monetary relief to Hoover, the consent decree settling the suit prohibits Save Edge from engaging in future discrimination against disabled employees or applicants, and from retaliating against applicants or employees who exercise their rights to complain about discrimination or assist in an investigation or discrimination-related proceeding. Save Edge must also implement a written disability policy and procedures to ensure equal employment opportunities are afforded to employees and applicants with disabilities. Finally, the company must post a notice of non-discrimination at its facility and train its hiring managers involved in the hiring process.
What to do with painter who can't use ladders?
Business Management Daily
What should you do if an employee has a disability that prevents him for doing his job? The ADA says you must try to find a reasonable accommodation. But who decides what’s reasonable?
The case: Joseph had an unusual problem, considering his occupation. A painter at a California prison, he had vertigo, which made it dangerous to work on ladders and scaffolds. The prison offered informal accommodations for several years, such as having a helper or prisoners handle painting high walls and ceilings.
But then Joseph’s condition worsened, and he had to take a fitness-for-work exam. Doctors said he could no longer perform an essential function of his job: painting anywhere other than with his feet on the ground.
The prison offered to transfer Joseph to another maintenance job that didn’t involve any climbing. However, it paid less.
When he declined, he was fired. Then he sued, alleging failure to accommodate his disability.
The verdict: The court dismissed Joseph’s case, because the prison fulfilled its ADA obligations.
The lesson: It’s up to the employer to choose which ADA reasonable accommodation it wants to offer a disabled employee. If the worker wants a different accommodation, he’s out of luck.
NYPD Settles Claims of Hard-of-Hearing Officers
Courthouse News Service
New York City police officers will no longer need to surrender their badges because they have to wear a hearing aid, if a federal court settlement announced Tuesday becomes final.
Daniel Carione, a 20-year police force veteran, brought the lawsuit four years ago after losing his job as deputy inspector because he had to wear a hearing aid due to loss he suffered in the line of duty.
On the first day of his trial, Carione and the NYPD privately went to the robing room to discuss a possible settlement, the transcript shows.
U.S. District Judge Katherine Failla spoke about the preliminary terms of the deal at a March 9 hearing.
The agreement will allow Carione to get his job back as a deputy inspector - as well as all back pay, benefits, and seniority since his June 24, 2011, firing - if he passes a hearing test while wearing his aid.
The transcript does not reveal what Carione will collect for cash damages, but it does state that he will collect $50,000 in miscellaneous income.
Carione said in a statement that the settlement would "opens wide the door of opportunity to millions of [hard-of-hearing] Americans."
"Most notable are our returning war veterans, a great many of which have received combat-induced hearing loss requiring the use of hearing aids," he added
The Hearing Loss Association of America, the American Association of Retired Persons, and Veterans of Foreign Wars noted in a friend-of-the-court brief that roughly one in seven U.S. citizens, or 48.1 million people, have hearing loss.
"While the NYPD seeks to be veteran-friendly, its blanket ban on hearing aids has a disproportionate impact on veterans and especially those who served in combat," the groups wrote in their brief.
Ex-NYPD sergeant Jim Phillips, a co-plaintiff who is now an officer in the village of Brewster, N.Y., will get $213,000 in back pay and $150,000 in miscellaneous income, according to the transcript.
Once an agreement is finalized, the NYPD must reevaluate its hearing requirements to comply with the Americans with Disabilities Act and New York City Human Rights Law within six months, Failla said.
The current blanket ban on officers wearing hearing aids must be replaced by a "case-by-case evaluation," she added.
"While the NYPD's review of its hearing aid policy is underway incumbents will be permitted to be tested wearing hearing aids at the Center for Hearing Communication," she continued. "They will not be forced to retire for failing to meet the hearing standards without their hearing aids and the city agrees to pay for this testing."
Stuart Seaborn, a lawyer for the nonprofit group Disability Rights Advocates, said in a statement that the settlement represented "a huge victory for the hearing loss community."
New York City Hall spokesperson Monica Klein told Courthouse News that "this administration continues to work each day to build an inclusive workforce throughout all our city's departments."
Fired State Employee With Anxiety Disorder Raises Triable ADA Claims, 4th Cir. Decides
Bloomberg BNA
A North Carolina state employee fired three weeks after she requested accommodation for social anxiety disorder has triable claims for discrimination, retaliation and failure to accommodate under the Americans with Disabilities Act, the U.S. Court of Appeals for the Fourth Circuit ruled March 12.
Employer, fired HIV-positive worker to settle EEOC bias case
Business Insurance
A packaging company has agreed to pay $125,000 to settle Equal Employment Opportunity Commission charges that it violated the Americans with Disabilities Act by firing a worker because he was HIV-positive.
Blind passenger cites WUSA9 video in taxi lawsuit
W*USA 9
An ongoing WUSA9 investigation into D.C. cabbies landed in D.C. Superior Court and it's a case that could forever change taxi service in the District.
The lawsuit against four D.C. cab companies calls for damages and a permanent order to prevent taxi companies from discriminating against the blind and people with service dogs.
Managing Psychiatric Disabilities in the Workplace
Law.com
The National Institute of Mental Health estimates that one in five people will experience a psychiatric disability during their lifetime. With the prevalence of mental impairments, employers are often confronted with the complex issue of managing employees with psychiatric disabilities. Employees suffering from a qualifying psychiatric disability, such as bipolar disorder, schizophrenia, depression or anxiety, are protected from workplace discrimination by Title I of the Americans with Disabilities Act. Employers must be cautious not to run afoul of the ADA’s anti-discrimination provisions once they become aware of an employee’s psychiatric disability.
As with physical disabilities, the ADA prevents discrimination against individuals with psychiatric disabilities in all aspects of employment, and prohibits an employer from treating a qualified individual with a disability unfavorably because of his or her disability or history of disability. Additionally, employers have a duty to provide reasonable accommodations to qualified employees with disabilities.
Employers may have difficulty managing employees suffering from psychiatric disabilities because the disability and need for an accommodation is not readily apparent. When confronted with dealing with mental impairments in the workplace, employers should keep the following in mind.
Conduct an Individual Assessment
The stigmas surrounding psychiatric disorders often lend themselves to stereotyping. Employers must avoid preconceived notions associated with mental impairments, because the ADA requires that an employer make an individualized assessment of the employee’s limitations. Once an employer becomes aware that an employee is suffering from a mental impairment, the employer must conduct an individualized assessment to determine the extent of the employee’s functional limitations. By addressing instances of mental impairments on a case-by-case basis, employers are able to gain a better understanding of the employee’s disability and its impact on the employee’s job performance.
This assessment process can be beneficial to both the employee and employer. A case-by-case assessment may decrease the stigmas associated with mental illnesses and increase the likelihood of finding an effective accommodation. This individualized process is also likely to ferret out instances where an employee abuses the system by making false claims of a mental impairment, because under the ADA an employer can request medical documentation supporting the existence of a qualifying disability.
Determine if Reasonable Accommodations Are Available
Employers covered by the ADA have a duty to provide reasonable accommodation to an employee with a psychiatric disability unless doing so would cause an undue hardship, meaning a significant difficulty or expense. Through the interactive process, the employer and the employee should identify the precise limitations resulting from the disability and the potential accommodations that could overcome those limitations. Accommodations for psychiatric disorders may not be obvious, and employers must be open to changing workplace policies, procedures or practices to adequately accommodate the employee’s disability. In its guidance on psychiatric disabilities, the Equal Employment Opportunity Commission identified the following, non-exhaustive list of possible accommodations for psychiatric disabilities:
• Time off from work or a modified work schedule. This accommodation includes the provision of additional paid or unpaid leave, changes to the employee’s regularly scheduled hours and permitting the employee to take more frequent breaks or rest periods.
• Physical changes to the workplace. When an employee has disability-related limitations in concentrating, reasonable accommodations may include simple and inexpensive changes to the employee’s working environment, such as constructing partitions or visual barriers between work stations, soundproofing an employee’s workspace and relocating an employee to a less noisy or distracting area.
• Adjusting supervisory methods. Where an employee’s ability to communicate or perform is limited by his or her psychiatric disability, it may be a reasonable accommodation to require the employee’s supervisor to adjust his or her management style. For example, supervisors may be required to provide additional training or a job coach to assist an employee in overcoming disability-related limitations. Additionally, it may be a reasonable accommodation to require a supervisor to communicate with a disabled employee in the most effective manner and medium (whether that means orally, in writing, email, voice messages or some other way) despite the supervisor or employer’s preferred communication method.
Employers who are unsure of how to best accommodate an employee’s psychiatric disability should seek counsel from mental health professionals to identify effective accommodations.
Keep Employees’ Medical Information Confidential
While behavioral cues may give rise to the inference that an employee is suffering from a psychiatric disorder and may prompt inquiries from co-workers, employers must adhere to the ADA’s confidentiality provisions. Under the ADA, employers are required to keep an employee’s medical information confidential and must maintain any medical documentation received in a file separate and apart from the employee’s personnel file. When an employee privy to confidential medical information is asked by a co-worker about a disabled employee’s mental health or a co-worker’s need for an accommodation, no medical information may be disclosed. Employers should train members of their managerial staff and human resources department on the importance of keeping medical information confidential, and the training should specifically address how to respond to inquiries into a co-worker’s disability.
Despite the protections of the ADA, the National Alliance on Mental Illness reported that 60 to 80 percent of people living with mental illness are unemployed. With the prevalence of psychiatric disabilities and likelihood of discriminatory treatment, employers must be both aware and sensitive to the impact that mental illness may have on their workforce. Additionally, employers must be cognitive of inherent stereotypes to avoid categorizing all employees with psychiatric disorders as a direct threat to the health and safety of the workplace. By taking an individualized approach that encourages open communication to determine the extent of an employee’s psychiatric disability and disability-related limitations, employers can avoid violating the ADA and minimize liability for psychiatric disability discrimination claims.