Dollar General Sued by EEOC for Disability Discrimination
A diabetic sales associate suffering from a hypoglycemic episode while on duty at a Maryville, Tenn., Dollar General was fired for consuming orange juice, which she paid for as soon as the medical emergency had passed, the U.S. Equal Employment Opportunity Commission alleged in a lawsuit it announced today.
According to the EEOC's suit, the employee, who has insulin-dependent diabetes, was working the cash register at Dollar General when she started to experience symptoms of a hypoglycemic episode. Customers were in line, so the former employee grabbed an orange juice from Dollar General's cooler and consumed it to stabilize her blood sugar. She paid for the orange juice after the customers left. The former employee told her supervisor on several occasions that she had diabetes, and she requested that the store allow her to keep her own juice near the cash register, but the store denied those requests. Dollar General fired the employee for violating its grazing policy, which prohibits employees from consuming merchandise before payment.
Federal Legal Corner: Flexible Schedule as Reasonable Accommodation
FEDweek
The U.S. Court of Appeals for the DC Circuit recently ruled that a flexible work hours schedule known as "maxiflex" can be a reasonable accommodation, holding that "nothing in the Rehabilitation Act says "as a matter of law, that a maxiflex work schedule is unreasonable."It reversed a lower court's dismissal of Solomon's EEO complaint against USDA for failing to accommodate her disability. Solomon v. Vilsack, Appeal No. 1:087-cv-01590 (August 15, 2014). This case began in early 2004 when Solomon, who had a history of depression, suffered a deterioration and was unable to maintain a normal work schedule.When she was ill in the morning, Solomon arrived late to work, or when she felt poorly in the afternoons, left early; yet Solomon would either arrive early the next day, or stay late, as the case may be, and diligently performed all of her work and met every deadline, often working on her own time to finish her assignments.Solomon's supervisor nonetheless charged absent hours as "leave," even though the supervisor allowed at least one other employee in the branch to work a flexible schedule, including staying in the office into the evening alongside Solomon to finish his assignments. Solomon requested a reasonable accommodation of a flexible work schedule, in response to which the supervisor demanded medical documentation.Solomon provided detailed doctor's statements, but could not reach agreement with the agency as to the requested accommodation.Unable to resolve the issue informally, Solomon pursued the matter through the formal EEO process. Meanwhile, officials in human resources directed Solomon's new supervisor to forbid Solomon to stay late to finish work projects, even on her own time.Solomon's mental health then worsened substantially, and she ultimately took disability retirement in early 2005. The case was litigated up and down the federal courts for several years, and included other issues, but the key holding here is the appellate court's embrace of flexible work hours as a "reasonable accommodation."The court ruled that "the appropriateness of flexible working hours as an accommodation in any given case will have to be established [through a fact-specific inquiry], [and] nothing in the Rehabilitation Act takes such a schedule off the table as a matter of law.Quite the opposite, the Rehabilitation Act, through its incorporation of the Americans with Disabilities Act's standards . . . is explicit that a reasonable accommodation may include . . . modified work schedules." For Solomon, this holding reversed the district court's summary judgment dismissal of her case and will allow her to return to U.S. District Court to present most of her discrimination, retaliation, and failure to accommodate claims to a jury although the appeals court sustained the dismissal of two of the claims).For federal employees seeking reasonable accommodations involving flexible work hours, the decision confirms that a flexible schedule is not per se unreasonable and that a court or fact-finder reviewing a failure to accommodate EEO claim may consider all the surrounding circumstances (e.g., recurrent deadlines; undue hardship on colleagues) in determining whether a flexible schedule is a reasonable accommodation. * This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.
Apria Healthcare Sued by EEOC for Disability Discrimination
Apria Healthcare Group, Inc., an Albuquerque home respiratory services and medical equipment company, violated federal law by discharging a warehouse clerk because she had had serious tumor surgery, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on September 18.
In its suit, the EEOC said that Apria Healthcare fired Hilda Padilla after she returned from a medical leave to remove a 23-pound tumor. The EEOC said that Padilla returned to work on July 6, 2009, only one week after she returned from a medical leave, and provided Apria with notice of her medical restrictions. After Apria learned of the seriousness of Padilla's surgery, it terminated her, the EEOC said.
Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disability. The EEOC filed suit in U.S. District Court for the District of New Mexico (EEOC v. Apria Healthcare Group, Inc., Civil Action No.1:14-cv-00851-LAM-KBM) after attempting to reach a pre-litigation settlement through its conciliation process.
1. Understanding EEOC's new guidance on pregnancy discrimination
HR.BLR.com
In July 2014, the Equal Employment Opportunity Commission (EEOC) issued guidance expanding an employer’s obligation to accommodate pregnant employees. ViewEEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues for a summary of this article. Attorney Jen Cornell provides the legal background for the guidance and the impact it will most likely have on employers.
Pennsylvania Magistrate Judge recommends that plaintiff's claims be barred in their entirety by application of the doctrine of collateral estoppel
Lexology
In the Eastern District of Pennsylvania, applying the doctrine of collateral estoppel, a Magistrate Judge issued a Report and Recommendation granting an individual disability insurer summary judgment on an insured’s claims for breach of contract, breach of fiduciary duty and statutory bad faith, where the insured (plaintiff) based a total disability claim on a work injury that was held to have not occurred by a workers’ compensation court. See Hayes v. U.S. Life, et al., No. 09-2874, Docket Doc. No. 322 (ED Pa. 2014).
DISABILITY DISCRIMINATION: Court rules interactive process should have been triggered by a couple of stray comments
JD Supra
Hawaii is in the 9th Circuit, which has a reputation for being employee-friendly. However, this case is a reminder that no matter the size of your company, employees can’t fall through the cracks. An employer must follow up by using the interactive process when there is even a “hint” that an employee is requesting an accommodation for a disability. Here, Assaturian did make a comment about “not being in control” when referencing an outburst and, taking the facts in the light most favorable to him, that he had a service card for the dog. This is not much to go on, but apparently it could be interpreted as requiring the interactive process. So while the statute says it is the responsibility of the employee to request an accommodation, apparently to some courts, “requesting” can be as simple as dropping a couple “clues.”
1. Blind Workers Face Challenges Getting Jobs
WJCT NEWS
It has been difficult for many people to find work in recent years, but it's even more of a challenge for those who are blind or have trouble seeing.