ADA in the News November 10, 2020

Hidden disabilities may be difficult to unmask

The Americans with Disabilities Act only requires that people with a disability are provided reasonable accommodations, which do not include exemption from a public health requirement.

The Department of Justice, which oversees the enforcement of the Americans with Disabilities Act, recently said in a news release, “The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.”

EEOC Sues Lonza America / Arch Chemicals for Disability Discrimination

Nationwide Company Violated Federal Law When It Conducted Unlawful Medical Exams And Fired a Recovering Opioid Addict, Federal Agency Charges

CHATTANOOGA, Tenn. – Lonza America, Inc., which formerly operated in Charleston, Tenn., as Arch Chemicals, Inc., a manufacturer of pool and spa sanitizers and related treatment products, violated federal law by conducting unlawful medical exams and then firing a recovering opioid addict, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

Based in Morristown, N.J., Lonza manufactures chemicals and ingredients for the pharma­ceutical industry.

According to the EEOC’s lawsuit, an employee who had worked for Lonza for over 10 years tested positive for a controlled substance. Lonza suspended the employee, forced him into counseling with a clinical psychologist, and conditioned his return to work on his discontinued use of the drug. Lonza later learned that the employee was a recovering opioid addict participating in a Medication Assisted Treatment program with a legal prescription for an opioid medication. Despite this, Lonza failed to adjust the drug test to account for the prescription and still required that he stop using it. After the employee tested positive a second time for a controlled substance (i.e. the legally prescribed opioid medication), Lonza terminated his employment.

Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability. The EEOC filed suit (EEOC v. Lonza America, Inc., f/d/b/a Arch Chemicals, Inc., Civil Action No. 1:20-cv-00311) in U.S. District Court for the Eastern District of Tennessee, Southern Division, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. The agency’s Nashville Area Office investigated the charge of dis­crimination. The EEOC’s lawsuit seeks back pay for the terminated employee and injunctive relief to require Lonza to permit workers taking prescription medication that does not interfere with their jobs to continue to perform their work.

“There is an opioid epidemic in America,” said Delner Franklin-Thomas, district director of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “Employees who are in treatment for opioid addiction and lawfully using opioid medication are protected by the ADA. When employees under treatment for opioid addiction lose their jobs, it can have a chilling effect on the workforce and the addiction recovery community at large. The Commission is committed to enforcing the ADA and its protections for recovering opioid addicts.”

Web Accessibility Lawsuit: How to React?

The importance of digital accessibility cannot be over-emphasized. At the very least, reasonable accommodations must be provided to ensure people with disabilities can access websites, applications, and digital content such as videos and documents. Inclusion-inclined countries have long legislated non-discrimination laws, and further enact digital accessibility acts to make this possible. Some of these laws come with requirements and deadlines, such as the Accessibility for Ontarians with Disabilities Act- AODA. Others have made it possible for disabled individuals to file a lawsuit against businesses or organizations. The Americans with Disabilities Act (ADA) under Title III is a civil rights law that protects over 60 million living with a disability in America by prohibiting discrimination. The Act mandates organizations to take steps necessary to communicate effectively and provide equal access, no matter the disability, in “places of public accommodation,” which include e-commerce stores, theaters, and restaurants, etc. that are open to the general public.

Reminder: Cannabis Companies Must Comply with Federal Workplace Anti-Discrimination Laws Too

Recent Discrimination Complaints Against Cannabis Companies

On July 29, 2020, in Soule v. New England Treatment Access LLC, plaintiff, a transgender woman with post-traumatic stress disorder (“PTSD”) and brain trauma injuries related to her service in the military, as well as diagnoses of depression and anxiety, sued her marijuana dispensary employer alleging that it engaged in discrimination in violation of Title VII, the ADA, and the Massachusetts Fair Employment Practices Act. Specifically, the plaintiff alleged that the dispensary’s supervisors and coworkers subjected her to a wide range of sexist and transphobic workplace comments and conduct, including, among other things:

  • the human resources department’s making public the knowledge of the plaintiff’s transition, after which the plaintiff was passed over for promotion;
  • asking the plaintiff about personal and medical information about her transition, and sharing the information in the workplace without the plaintiff’s permission;
  • denying the plaintiff access to her preferred bathroom and locker room facilities;
  • addressing the plaintiff by the wrong pronouns;
  • failing to change the plaintiff’s name and picture on her work badge following her transition;
  • subjecting the plaintiff to inappropriate touching; and
  • subjecting the plaintiff to intentional exacerbation and mockery of her PTSD, anxiety, and depression.

The plaintiff also claimed that upon requesting accommodations and leave from work for her disabilities, symptoms of which had worsened due to the alleged harassment, the company did not accommodate her medically supported request for extended Family and Medical Leave Act leave. When the plaintiff requested to return to work, the company allegedly told her that the job was no longer available and offered her a different position that interfered with her medication schedule. The employer has answered the complaint, and the case remains pending in the trial court.

On September 16, 2020, in Dieffenback v. Greenleaf Compassionate Care Center, Inc., a former medical marijuana dispensary accountant filed a complaint against his former employer, alleging violations of the ADEA, the ADA, and the state’s parallel anti-discrimination statutes. The plaintiff, a 71 year-old man, alleged that, among other things, after blowing the whistle on misappropriation of funds and conflicts of interest, executives referred to him as a “silver fox” and harassed him about his “antiquated” record keeping methods. He also claimed that executives asked him about his health, specifically a perceived lung illness, and age. After reporting the alleged harassment to human resources, the plaintiff claimed, the company retaliated against him by gradually reducing his job duties and transferring his work to a younger employee who did not have a perceived disability. The dispensary ultimately terminated plaintiff’s employment. The dispensary has not yet filed an answer to the complaint.

On September 24, 2020, in EEOC v. AMA Investment Group, LLC, the Equal Employment Opportunity Commission filed a complaint on behalf of several current and former employees against their employer, a marijuana dispensary, and its Arizona-based parent corporation. The marijuana dispensary employees claimed that the employer had engaged in sex-based discrimination in violation of Title VII by creating a sexually hostile work environment. Women and a gay man who worked at the dispensary alleged that their manager had made sexualized comments and engaged in sexualized behavior, including inappropriate touching toward them, but not straight male employees. The complaint alleged that the defendant employer did not have an anti-harassment or anti-discrimination policy in place for at least a year after the alleged discriminatory behavior began. When the company eventually established a policy, it allegedly required harassment complaints to be directed to either the aforementioned manager, or the human resources department located within the Arizona parent company’s offices. The complaint alleged that the policies, however, failed to provide the contact information for the Arizona-based human resources department. It also alleged that the employees feared making forTmal complaints to the aforementioned manager, who told employees that he was key to their access to employment opportunities in the cannabis industry. The defendants have not yet filed an answer to the complaint.

Considerations for Employers in the Cannabis Industry

These cases provide a harsh reminder to cannabis industry employers that even companies in a new, growing, and progressive industry are not immune from the risk of discrimination litigation. As the end of the year approaches, employers are reminded that many states and localities, including California, Connecticut, Delaware, Illinois, Maine, and New York require anti-harassment training. To comply with the current and unprecedented number of laws concerning anti-harassment training in the workplace, employers may utilize Epstein Becker & Green’s Halting Harassment®. Our e-learning solution provides compliant, compelling, interactive, computer-based training for all company employees in addition to supplemental training for supervisors. Designed to help employers in jurisdictions with mandatory training requirements, as well as those in locations without them, Halting Harassment® encourages behaviors that foster a work environment free from discrimination and harassment.

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