EEOC Sues Rogers Behavioral Health for Disability Discrimination
An Oconomowoc, Wis., inpatient residential health facility violated federal law when it rescinded an applicant's job offer because she tested positive for a prescribed medication, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. Rogers Behavioral Health provides treatment for various conditions including addiction, anxiety, depression, mood disorders and general mental health.
The EEOC's investigation revealed that Rogers offered the applicant a position as an intake specialist. As part of her pre-employment requirements, Rogers instructed her to have a physical and a drug screen. At her physical, she disclosed that she had a prescription for Alprazolam, the generic form of Xanax, a medication commonly prescribed for anxiety. She also disclosed other medical impairments that she had. She also provided a sample for her drug screen.
Noble Diagnostics, a third-party administrator of workplace drug and alcohol tests, performed the drug screen, which showed that the applicant tested positive for Alprazolam. The doctor who performed the physical indicated on the physical examination form that she had reviewed the applicant's drug screen and found her medically acceptable for work as an intake specialist.
Rogers failed to contact the applicant or give her the opportunity to provide additional prescription information to contest the drug screen. Rogers withdrew the job offer from the applicant by email without explaining the decision was related to her drug screen. The EEOC said that Rogers rescinded the offer because it regarded the applicant as disabled, a conclusion it reached because of her drug screen.
Such alleged conduct violates the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, which prohibit discrimination on the basis of actual or perceived disability. The EEOC filed suit (EEOC v. Rogers Behavioral Health, Civil Action No. 19-cv-00935) in U.S. District Court for the Eastern District of Wisconsin on June 27 after first attempting to reach a pre-litigation resolution through its conciliation process.
The case has been assigned to Magistrate Judge Nancy Joseph. The EEOC is seeking full relief, including reinstatement, back pay, compensatory and punitive damages, and non-monetary measures to correct Rogers's practices going forward.
"Rogers Behavioral Health cannot hide its discriminatory intent behind a complicated pre-employment process," said Gregory Gochanour, regional attorney for the EEOC's Chicago District Office. "The plain fact is that Rogers knows Alprazolam is a common prescription medication, and that rather than acknowledging the prescription information already disclosed or giving the applicant the opportunity to correct her drug screen, it chose to rescind her job offer because it did not want to hire an employee whom it regarded as disabled."
Julianne Bowman, district director of the EEOC's Chicago District Office, said "When employers like Rogers Behavioral Health reject qualified candidates who they believe have disabilities, they not only harm those candidates, they deprive the national economy of the valuable contributions those candidates can make."
The EEOC's Chicago District is responsible for investigating charges of employment discrimination, administrative enforcement, and the conduct of the agency litigation in Illinois, Wisconsin, Minnesota, Iowa, North Dakota, and South Dakota, with area offices in Milwaukee and Minneapolis.
Staying awake is essential to monitoring job, 5th Cir. says
HR Dive
Dive Brief:
- A cable TV/internet technician with narcolepsy failed to persuade an appeals court that staying awake was not an essential function of her job (Clark v. Charter Communications, LLC, No. 18-11492 (5th Cir. June 19, 2019)).
- Danielle Clark's job was to monitor computer displays tracking the network's status and to immediately dispatch a technician in the event of an outage. Clark had trouble staying awake during her shifts due to her narcolepsy. Her employer tried to accommodate her by providing additional time off and extra breaks, but co-workers began to make negative comments and request her termination. Clark sued, alleging disability discrimination and harassment, failure to provide reasonable accommodations, failure to engage in the interactive process, and retaliation in violation of the Americans with Disabilities Act (ADA) and Texas law.
- A federal district court granted the employer's motion for summary judgment, concluding that Clark had failed to establish that she was "otherwise qualified for the position and duties of a specialist." On appeal, the 5th Circuit affirmed.
Dive Insight:
"Essential functions are the basic job duties that an employee must be able to perform," according to the U.S. Equal Employment Opportunity Commission (EEOC). An employee who cannot perform the essential functions of a job, either with or without a reasonable accommodation, is not qualified for the job and cannot invoke the protections offered by the ADA.
"Essential functions" can vary depending on the job. Sometimes basic elements of a job qualify as essential functions. In one instance, for example, a court ruled that regular attendance for supervisors can be considered an essential function.
Because courts often give deference to employers when deciding what constitutes an essential job function, a written, up-to-date job descriptions that spell out what is essential and what is marginal is key, according to the EEOC document, The ADA: Your Responsibilities as an Employer.
A written job description signed by the employee is important, as areregular reviews of job descriptions. Many experts recommend tying the updates to annual performance reviews and having employees sign off on them at that time.
Case of the Big Bus Driver: Seventh Circuit Joins Other Circuits in Rejecting Obesity, without Other Physiological Condition, as ADA Impairment
JD Supra
Obesity has been recognized as a disease by the American Medical Association, National Institutes of Health, and the World Health Organization. Does that mean obesity qualifies as a physical impairment under the Americans with Disabilities Act (ADA)? Stated differently, may an individual claim that he is disabled under the ADA, based solely on the fact he or she is obese? According to the circuit courts that have addressed the issue, the answer is clearly no.
In Richardson v. Chicago Transit Authority, the Seventh Circuit joined the Second, Sixth and Eighth Circuits (and the majority of district courts) as the latest court to hold that obesity alone is not a physical impairment as contemplated by the ADA. Relying on the plain language of the EEOC regulation implementing the ADA, the Seventh Circuit found that obesity may be a physical impairment as contemplated by the ADA only if it is the result of an underlying physiological disorder or condition.
Deaf woman files complaint after judge denied her sign language interpreter
WGN-TV
A deaf woman said a metro court judge denied her the right to a sign language interpreter during a civil hearing, and now she’s speaking about her experience.
On Nov. 6, 2018, Selene Alverio showed up at the Bernalillo County Metropolitan Court for a hearing. She said she told Judge Daniel Ramczyk that she needed an American Sign Language interpreter but that Ramczyk denied her request.
“I felt like I was this small child and there was this huge man in front of me, pointing his finger at me telling me ‘You need to stop misbehaving ma’am,'” Alverio said. “I felt belittled. I was very sad and depressed for a while.”
The metro court requires those who need accommodation for a disability to contact the court’s Americans with Disabilities Act coordinator no later than 48 hours before the scheduled court date, which Alverio did about two weeks prior, but her request was denied.
Employing and including workers with disabilities: 3 lessons from #SHRM2019
HR Dive
As the talent market continues to contract, it behooves employers to make their talent strategy inclusive to workers with disabilities, a talent pool traditionally overlooked, according to presenters at the Society for Human Resource Management (SHRM) 2019 Annual Conference. But to hire, employ and retain employees with disabilities, workplaces will need to grapple with their unconscious biases and comply with related requirements created by federal and state laws.
A San Jose Law Firm Has Filed 1400 ADA Suits. But Is That Racketeering?
Law.com
Litigators from Sheppard, Mullin, Richter & Hampton argue a San Jose, California, plaintiffs firm that’s churned out at least 1,400 drive-by suits might actually undermine the efforts of legitimately disabled people.
Accessibility Is Hospitality: Why The Restaurant Industry Needs To Cath Up
WBUR
Unfortunately, many restaurant spaces are the “opposite of hospitality” for diners with disabilities. The Americans with Disabilities Act (ADA), a civil rights law passed in 1990, sets basic standards for accessibility in public spaces. But without monitoring or enforcement by any government agency or third party, reports of violations are relatively common in restaurants: narrow pathways through packed dining rooms, lack of low-top tables, and bathrooms labeled as accessible thatclearly cannot accommodate a wheelchair. Regular inspections could help enforce the law, but as it stands, the onus is on diners to file complaints or suits.
5 ways to make your website more ADA compliant
AdAge.com
The number of ADA (Americans with Disabilities Act) lawsuits against education, government, small business, e-commerce and software-as-a-service (SaaS) websites has increased by 120 percent over the past two years. Judges will often rule in favor of the plaintiff unless the charges are obviously frivolous.