EEOC Sues Powerlink for Disability Discrimination
Powerlink Facilities Management Services, a Michigan-based management and maintenance services company, has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) for failing to accommodate a hearing-impaired employee and firing her because of her disability, the federal agency announced today.
According to the EEOC's lawsuit, Powerlink uses training videos during its orientation. Instead of providing this employee with a timely and reasonable accommodation, Powerlink did not allow her to receive orientation or start work for several months. The company claimed she could not complete its orientation process since its videos lacked closed captioning for the hearing-impaired.
Such alleged conduct violates the Americans with Disabilities Act (ADA). After attempting to reach a pre-litigation resolution through its conciliation process, the EEOC filed suit in the U.S. District Court for the Eastern District Court of Michigan (EEOC v. Powerlink Facilities Management Services, Case No. 2:19-cv-12055) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking monetary relief for the employee and an injunction prohibiting the company from engaging in this type of conduct in the future.
"Refusing to provide a reasonable accommodation to a qualified employee with a disability violates federal law as well as being unfair and wasteful," explained Nedra Campbell, trial attorney for the EEOC. "Powerlink should have considered the various ways to accommodate this employee. Instead, the company lost a valuable employee and gained a federal lawsuit."
EEOC: Employer fired worker for blood disorder, said it thought it hired 'healthy' person
HR Dive
Dive Brief:
- A Mississippi tool company violated federal law when it denied an employee a reasonable accommodation for her disability and then retaliated against her for complaining, the U.S. Equal Employment Opportunity (EEOC) has alleged in a lawsuit (EEOC v. Valley Tool, Nos. 19-cv-00140 and 19-cv-00141 (N.D. Miss. July 2, 2019)).
- When the employee said she had a blood disorder that caused her to miss work, a manager allegedly told her that he would not have hired her had he known about the ailment, and that they thought they were hiring a "healthy" individual. Later, the EEOC said, the company denied her a reasonable accommodation by telling her that she could not miss any more work until her probation expired, placed her on an involuntary leave of absence, and eventually discharged her despite a doctor's letter stating she was cleared to work without limitations. This alleged conduct violates the Americans with Disabilities Act (ADA), EEOC said.
- The company also retaliated against another employee, said EEOC, who complained about the manager's comment and other workplace issues and was then denied a pay increase because of the money the company spent responding to the discrimination charge she filed.
Dive Insight:
Many employers have ended up in expensive litigation because of comments made by managers and supervisors. Front-line managers and supervisors are responsible for a large number of discrimination and retaliation claims, experts have said.
As an example, a recent age-bias lawsuit brought by a 59-year-old dispatch supervisor who was criticized for his "dinosaur age related theories" survived a motion for summary judgment; the court said the "dinosaur" comment was "highly probative" of discriminatory intent, in part because it was made by the decision-maker in the worker's firing.
HR can head off lawsuits by making sure that managers and supervisors take part in periodic compliance training. Some employers also provide unconscious bias training, which works best when offered in a non-judgmental way that allows employees to understand that everyone has biases and provides a means for workers to identify and examine their biases, experts previously told HR Dive.
At a 2018 Society for Human Resource Management conference, attorney Jonathan Segal, a partner at Duane Morris, suggested that when presented with a complaint, HR professionals should thank workers for raising their concerns, explain the life cycle of a complaint and assure employees that their complaint will be taken seriously.
Cutter Law Announces Victory for Deaf Patients
Stockhouse
Cutter Law PC announces it has obtained a victory in an Americans with Disabilities Act (ADA) arbitration claim filed against Kaiser Foundation Health Plan and others, alleging Kaiser failed to make appropriate accommodations for a patient who was deaf. Included in Judge Brian Van Camp's decision are requirements that Kaiser South Sacramento provide training for staff regarding recognizing the signs of a stroke and use of VRI devices. The patient also received a significant financial award.
Obesity: A New Protected Class In Washington
Lexology
The Washington Supreme Court held for the first time today that obesity is a protected class under state anti-discrimination law (Taylor v. Burlington Northern Railroad Holdings, Inc.). This decision runs counter to recent federal court decisions in other parts of the country that have said obesity not caused by an underlying physiological disorder or condition does not qualify as an impairment under federal law. The main reason for this distinction is that Washington state disability discrimination law offers broader coverage than the federal Americans with Disabilities Act (ADA).
While Washington employers may have grown accustomed to expansive disability discrimination protections in our state, today’s decision goes further than ever before and may require you to immediately adjust your personnel practices.
Applicant’s Job Offer Rescinded Because Of Severe Weight Problem
Casey Taylor received a conditional offer of employment to work for BNSF Railway Company as an electronic technician, but the offer was contingent on him passing a physical examination and completing a medical history questionnaire to the company’s satisfaction. The medical evaluation revealed that Taylor was 5 feet 6 inches tall and weighed 256 pounds, resulting in a Body Mass Index (BMI) of 41.3.
Because a BMI over 40 is considered “severely” or “morbidly” obese, BNSF informed Taylor that it was unable to determine whether he was medically qualified for the job due to the significant health and safety risks associated with his physical condition. It further informed him that it was company policy to not hire anyone who had a BMI over 35, and that if he did not agree to pay for expensive additional medical testing to further examine his condition, his only other option was to lose 10 percent of his weight and keep it off for six months.
Taylor was unemployed and without medical insurance or other benefits to assist him in paying for the proposed testing, and therefore declined the company’s alternative proposals. Instead he sued the railway company, alleging discrimination under the Washington Law Against Discrimination (WLAD) for refusing to hire him due to a perceived disability – obesity.
A federal court initially dismissed his claim, relying on federal cases interpreting the law to indicate that obesity is not a disability unless caused by a separate, underlying physiological disorder (and Taylor had no such disorder). But the 9th Circuit Court of Appeals believed that Taylor may have had a valid claim and was not ready to affirm the lower court’s dismissal. Instead, it sent the matter to the Washington Supreme Court and asked it to resolve the issue by applying state law.
State Supreme Court: Obesity Is Covered Under State Disability Law
Today the Washington Supreme Court answered the question by issuing an unprecedented decision that “obesity is always an impairment under the plain language of [the WLAD] because the medical evidence shows that it is a ‘physiological disorder, or condition’ that affects many of the listed body systems.” Putting it bluntly, the court said that “obesity does not have to be caused by a separate physiological disorder or condition because obesity itself is a physiological disorder or condition under the statute.”
The court went through a detailed analysis of obesity in order to reach this conclusion. It noted that obesity is not merely the status of being overweight, but instead is recognized by the medical community as a “primary disease.” It listed the many physiological reasons why an individual may suffer from obesity, ranging from genetic predisposition, endocrine disruption, an imbalance between energy intake and expenditure, to intrauterine grown restriction. And while certain disorders could contribute to obesity (such as tumors, eating disorders, various syndromes, or hypothyroidism), the court noted that obesity may occur in people without such disorders being present.
The court emphasized that the WLAD is broader than its federal counterpart, the ADA, and therefore coverage can be found under state law even when possibly absent under federal law. The court specifically declined “to use federal interpretations of the ADA to constrain the protections offered by the WLAD.” For example, the regulations interpreting the statute make clear that “abnormal” physical conditions deserve protection under Washington law, while no such provision appears in the ADA.
BNSF argued that weight should not be considered an abnormality because it is not an immutable characteristic and could be altered by the individual. Moreover, the defense argued, a large percentage of the population is obese (some 29 percent of adult Washingtonians were obese in 2016 according to BMI statistics) and therefore it could not be an abnormal condition. But the court rejected these arguments, noting that “abnormality” refers to something other than statistical frequency and was not limited to immutable states of being.
The court concluded by ruling that workers and applicants can gain the protections of the WLAD even if they aren’t obese, but that it is sufficient for actual or potential employers to perceive them as having the impairment of obesity. “Because obesity qualifies as an impairment under the plain language of our statute,” the court concluded, “it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”
What Does This Mean For Employers?
Today’s decision could have far-reaching effects for Washington employers. First and foremost, if you use physical examinations or medical questionnaires to assist you in your hiring process, you should immediately consult with your labor and employment counsel for how to proceed when it comes to inquiries and standards surrounding weight. Once you have determined the safest and most appropriate course of conduct, you should also provide written instructions to any third-party testing providers about your policies and hiring standards.
Next, you may want to consider reviewing and revising your anti-harassment, anti-discrimination, and anti-retaliation policies to reflect that obesity is now a protected class under Washington law. It may be sufficient for hiring personnel and other supervisors to know about this change in the law, but your particular circumstances may warrant a clear enunciation of this new standard.
You should also be prepared to adjust your reasonable accommodation practices to reflect this change. If an existing employee indicates they need to be accommodated because of their obesity, or an obese applicant articulates their need for reasonable accommodation in order to perform the essential functions of the job, you should be prepared to go through your typical interactive process as you would for any other disability.
Finally, you should incorporate this shift in the law into your training materials. Hiring managers need to know the new policies you have put into place, supervisors and managers need to understand the contours of the new law, and all personnel need to be aware that harassment based on someone’s obesity is strictly prohibited under your company’s policies.
State Supreme Court: Obesity covered by anti-discrimination law
Kitsap Sun
It's illegal for employers to refuse to hire someone who is obese if they are otherwise qualified for the job, the Washington Supreme Court ruled Thursday.
In a 7-2 ruling, the high court said obesity is covered by the Washington Law Against Discrimination, which protects employees with disabilities.
"Because obesity qualifies as an impairment under the plain language of our statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese," Justice Mary Fairhurst wrote for the majority.
Attorney Mike Subit, who filed a friend-of-the-court brief for Washington Employment Lawyers Association in the case, said the ruling "confirms that Washington has an extremely broad definition of disability" — one that covers more than the federal Americans with Disabilities Act.
Close Call: American Airlines Wins ADA Case by One Vote, but the Warning Signals for Employers are Loud and Clear
JD Supra
Seyfarth Synopsis: In a 2-1 decision in Bilinsky v American Airlines, Inc.,2019 WL 2610944 (7th Cir. June 26, 2019), the Seventh Circuit recently affirmed American Airlines’ summary judgment win against a former employee who alleged American violated the ADA by failing to allow her to continue to work remotely after the American/US Airways merger. In doing, the majority made clear – as a “note of caution to future ADA litigants” – that employers must analyze what is reasonable under the ADA based upon current technological capabilities, not what was possible decades ago. The case also highlights the importance of having and updating job descriptions in the face of changed work circumstances. American survived its close call without one, but the next employer may not.
Over 800 Rights Organizations Express Support for the Disability Integration Act of 2019
Human Rights Watch
Groups Urge Passage of the Disability Integration Act of 2019 (DIA) (H.R. 555/S. 117).
It's a law designed to protect those with disabilities, but lawyers say it's being used to make money
WHEC
For months, New10NBC has investigated an explosion of lawsuits against businesses and schools claiming they violated the Americans with Disabilities Act (ADA).
The law is designed to protect those with disabilities, but lawyers say it’s being used to make money and can actually make it harder for those doing true advocacy.
Rochester is hosting the American Council of the Blind Conference and Convention all week. We wanted to know what they think about these lawsuits.
Despite Americans with Disabilities Act, websites are often inaccessible to the impaired
Courier Journal