Medstar Good Samaritan Hospital and EEOC Reach $195,000 Agreement to Conciliate EEOC Disability Discrimination Charge
The U.S. Equal Employment Opportunity Commission (EEOC) and MedStar Good Samaritan Hospital (MGSH) announced today the successful conciliation and settlement of a charge filed with the agency under the Americans with Disabilities Act (ADA). The EEOC reached a voluntary resolution with the employer through the agency's conciliation process following its investigation findings. MGSH did not admit to any wrongdoing or fault in violation of the statute.
In addition to monetary and non-monetary relief, MGSH agreed to provide training to employees concerning the ADA and leave policies administered by its third-party vendors, post notices to all employees, and consent to a two-year monitoring period. The EEOC acknowledges the employer's cooperation with the EEOC in its investigation of the matter. MGSH agreed to affirm its commitment to compliance with the ADA and equal employment opportunity laws.
The ADA prohibits workplace discrimination based on disability and requires employers to provide a reasonable accommodation, including leave, to individuals with disabilities, unless it would pose an undue hardship.
"MedStar Good Samaritan Hospital has shown its commitment to complying with the ADA by resolving this matter voluntary with the EEOC," said Baltimore Field Office Director Rosemarie Rhodes. "This agreement ensures that the hospital's leave policies, including those administered by third-party vendors, will comply with the ADA."
Philadelphia District Director Jamie R. Williamson added, "We commend MedStar Good Samaritan for resolving this issue expeditiously once it was brought to their attention. We encourage all employers to be proactive and review their policies and procedures so employees who need a reasonable accommodation will receive what they are entitled to under federal law."
Retroactive Exception To Employer’s Policy Is Not A Reasonable Accommodation Under The ADA
The Fifth Circuit recently affirmed summary judgment against an employee caught sleeping at his desk. A personnel manager for a security company suffered from Type II diabetes and had previously requested and received reasonable accommodations, but none involved the employee’s potential loss of consciousness due to diabetes. After two reports of the employee sleeping at his desk, his supervisor took a photograph of him sleeping again. When the employee awoke, his supervisor confronted him. The employee claimed that he may have experienced a diabetic emergency and immediately drove himself to the hospital. While in the emergency room, the company discharged the employee for violating its policy of requiring employees to remain “alert” at work. The employee filed suit alleging claims of disability discrimination, failure to accommodate, harassment, and retaliation. The district court granted summary judgment for the employer on all counts, and the Fifth Circuit affirmed.
The employee alleged, in part, that the company never gave him an opportunity to request a reasonable accommodation for his loss of consciousness because the company discharged him while he was at the hospital. The Fifth Circuit ruled the employee could have (but did not) request an accommodation any time before his discharge, but that “an after-the-fact, retroactive exception to the alertness policy as an accommodation for his underlying disability” would not constitute an accommodation.
Employees’ after-the-fact, disability-related, excuses for misconduct are commonplace. This court’s approach to that tactic…not so much. Kids, don’t try this at home. The optics of firing an employee while she or he is in the ER are, well, awful, and could give rise to other claims even if not under the ADA. However, here, the employer had an express, written “Alertness” policy that it had previously enforced on the same kind of evidence – a photo of the sleeping employee. It doesn’t hurt to have a written policy to rely on when defending an employment decision.
Clark v. Champion National Sec, Inc., No. 18-11613 (5th Cir. Jan. 14, 2020).
(Link to the opinion: http://www.ca5.uscourts.gov/opinions/pub/18/18-11613-CV0.pdf)
Police officer with PTSD couldn't perform job's essential functions, 5th Cir. says
Dive Brief:
- A former police officer with PTSD failed to show that he could perform the essential functions of his job, the 5th U.S. Circuit Court of Appeals held, declining to revive his lawsuit (Felton v. City of Jackson, Mississippi, No. 19-60563 (5th Cir. Jan. 8, 2020)).
- After being involved in multiple shootings at work, Lance Felton developed post-traumatic stress disorder, court documents said. He was placed on leave but never provided a doctor's note clearing him for duty as requested; the city eventually fired him, citing attendance violations.
- Felton sued, alleging disability discrimination. A district court found that he failed to show he could satisfy the job's essential functions — a standard required for Americans with Disabilities Act (ADA) suits — and the 5th Circuit affirmed. Felton failed to show that he was qualified for the job even with accommodations and failed to identify a vacant position for which he was qualified, the appeals court concluded.
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 generally cannot invoke the ADA's protections.
"Essential functions" can vary depending on the job. The 9th U.S. Circuit Court of Appeals has held that regular attendance can be an essential function for supervisors. The 8th Circuit recently decided that a worker at an Iowa meat and processing facility who was absent 195 days was not qualified for ADA protection. But other courts have reached the opposite conclusion: The 6th Circuit said that a full-time presence might not be essential for an HR generalist's job.
Courts often look to job descriptions to help determine the essential functions of a job. The EEOC said in a guidance document that "a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions."
Because courts often give deference to employers' determinations, written, up-to-date job descriptions that spell out what is essential and what is not essential is key, according to agency's guidance. To ensure that happens, experts recommend that HR tie job description reviews to annual performance reviews and have employees sign off on them at that time.
The Americans with Disabilities Act: How to Handle the Troll Under the Bridge
Many of us are aware of the story of the Troll under the Bridge. This story portrays a Troll that lives under a bridge and requires a toll from all who want to use the bridge. This classic fable carries with it some painful truths for those who want to conduct a business and come into contact with an Americans with Disabilities Act (“ADA”) lawsuit.
Just like the troll under the bridge, there are individuals and groups who demand a toll to do business: an ADA lawsuit. These tolls come in the form of cookie-cutter lawsuits filed in the thousands across the country alleging violations of the Americans with Disabilities Act, the Federal law designed to protect disabled individuals from discrimination based on accessibility to a business. The LA Times reports that almost 5,000 ADA lawsuits were filed in the first six months of 2018 and projected 10,000 total for the year. The evidence suggests that the number will be larger in 2019 and 2020. In an effort to make businesses equally accessible to all individuals regardless of disability, this Act has unfortunately also created the opportunity for individuals to take advantage of businesses be filing trivial ADA lawsuits in the thousands—many against hotel properties.
This article will discuss the basics of the Americans with Disabilities Act and the three main areas of troll litigation under the ADA, how these troll litigators typically operate, and what companies can do to minimize the likelihood of being caught in one of these lawsuits.
Forsyth County company settles lawsuit over firing employee with mental disabilities
A Forsyth County company has reached a settlement for a lawsuit filed by the U.S. Equal Employment Opportunity Commission dealing with the firing of a former employee with mental disabilities.
Heritage Charity Auctions & Awards, Inc., a custom framing company, “will pay $19,000 and provide other significant relief “to settle the suit, which was filed in the United States District Court for the Northern District of Georgia, according to a news release from the EEOC.
Improving federal law for pregnant workers
Congress passed the Pregnancy Discrimination Act 41 years ago, but as we enter a new decade, pregnancy discrimination is still alive and well. Across industries — from retail workers to police officers — unfair treatment is all too common.
The reality is that pregnant workers, especially those in low-wage and physically demanding jobs, are still being treated like second class citizens, facing unique — and often insurmountable — legal hurdles to get the modest accommodations they need to remain healthy and on the job.
Drug Testing In The '20s: What Employers Should And Shouldn't Do
Welcome to the future.
With the dramatic changes in acceptance of medical and even recreational marijuana, employers need to take a fresh look at the way they maintain drug-free workplaces. Here are some tips for surviving this time of transition.
Society Is Missing the True Definition of Inclusion
Yes, the ADA has been around for 30 years. So what is the answer when we continue to see such gaping holes in accessibility?
What People With Invisible Illnesses Want You To Know
This is what it's really like to have a health condition no one can visibly see.
The Frustrating Fight for Closed Captions on In-Flight Entertainment
Late last month Oscar-winning actress Marlee Matlin went viral on Twitter after calling out Delta for the lack of closed captions on her flight’s seat-back entertainment system. "Sad to see that my preferred airline, @Delta flight 1998 has provisions for various languages and audio description for in-flight entertainment but no closed captions for deaf and hard of hearing flyers," Matlin tweeted. The post has since received a million views and 48,000 likes.
Matlin was part of the initial effort to mandate general caption access in the early 1990s, when the Americans with Disabilities Act (ADA) was passed. But in the three decades since, missing closed captions—or incorrect, usually automatic captions known in the community as “craptions”—continue to be a problem for deaf and hard-of-hearing audiences in many venues, both in the air and on the ground.
ADA Protected Industry Threatened By AB 5
Independent signers and close captioning workers at risk under new law