Former Convenience Store Owner to Pay $160,000 to Resolve Disability Discrimination Suit
The former owner of a chain of Oklahoma convenience stores will pay $160,000 to nine alleged victims of disability discrimination to resolve a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.
According to the EEOC's lawsuit, Brown-Thompson General Partnership fired a warehouse worker and eight other employees with medical conditions who needed reasonable accommodations, including modified duty or an exception to the company's practice of terminating employees who missed more than three days of work and didn't qualify for other company leave. Such alleged conduct violates the anti-discrimination provisions of the Americans with Disabilities Act, which prohibits employers from taking adverse employment actions against individuals because of qualifying medical conditions and refusing to provide reasonable accommodations to employees, which can include modified duty or work schedules.
The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Brown-Thompson General Partnership, Case No. 5:16-cv-1142-PRW) in September 2016 in U.S. District Court for the Western District of Oklahoma, after first attempting to reach a pre-litigation settlement through its conciliation process.
The consent decree settling the suit, entered by Judge Patrick R. Wyrick, requires Brown-Thompson General Partnership to pay lost wages and compensatory damages to the nine individuals for whom the EEOC sought relief in the lawsuit. Effective March 1, 2020, the company sold its business and no longer operates the warehouse or chain of Oklahoma convenience stores where the individuals were employed.
"Businesses need to work with employees who have medical conditions and who request a reasonable accommodation," said Andrea G. Baran, the EEOC's Regional Attorney in St. Louis. "The first choice should always be to find a way to keep employees working or to get them back to work as quickly as possible. Abruptly firing workers based on disability will frequently run afoul of the law."
The EEOC's St. Louis District Director, L. Jack Vasquez, added, "We are pleased to obtain a resolution that provides relief for these nine workers who were unlawfully fired."
10th Circuit Upholds Hospital’s Rejection of Applicant Under ADA
The rules surrounding medical examinations under the Americans with Disabilities Act (ADA) can be tricky. The U.S. 10th Circuit Court of Appeals (whose rulings apply to all Colorado, New Mexico, Utah, and Wyoming employers) recently analyzed the rules in a case involving an employer’s decision to rescind a job offer based on a postoffer, preemployment medical examination. The lessons learned are helpful for all employers that use or consider medical examinations for applicants or employees.
Facts
Elena Sumler applied for a job as a sonographer with the University of Colorado Hospital Authority. Sonographers use their technical skills to obtain and analyze ultrasound images.
The hospital offered Sumler the position, contingent on a medical examination. As part of the medical exam process, she disclosed that she suffers from fibromyalgia and was taking medications, including two narcotic pain medications. She asserted, however, that she wasn’t disabled and had no restrictions preventing her from performing the essential job functions.
The hospital referred Sumler to occupational health physician Henry Roth for further review. According to her personal physician, who shared information with Roth, she could function normally and had worked as a sonographer at a different facility, despite the pain medications. Roth, however, disagreed. He concluded her narcotic use would interfere with her mental acuity, which both parties agreed was an essential job function. As a result, the hospital rescinded its job offer.
ADA’s restrictions on medical examinations and discrimination
The ADA restricts medical examination use, though the restrictions vary depending on the context. Sumler’s case involved the use of postoffer, preemployment examinations, which are permissible if they are required for all incoming employees. Any criteria used to exclude applicants must be job-related and consistent with business necessity.
In addition to restricting the use of medical examinations, the ADA prohibits employers from discriminating against disabled individuals. Some employers might not realize, however, the ADA also protects certain nondisabled individuals—it prohibits discrimination against individuals based on a perceived disability.
Sumler’s claims and the 10th Circuit’s decision
Sumler sued the hospital, claiming it violated her rights under the ADA when it rescinded her job offer. The hospital requested summary judgment (dismissal in its favor without a trial), arguing it didn’t violate the Act and the case shouldn’t go to trial. The district court, and ultimately the 10th Circuit, agreed. The courts’ reasoning provides some important reminders and lessons for employers.
Sumler argued the hospital violated the ADA by requiring her to meet in person with Roth for the medical examination. The 10th Circuit disagreed, holding the concerns about her use of narcotic pain medications were job-related and consistent with business necessity. The hospital believed such medications could compromise her mental acuity, a job requirement. Consequently, it complied with the ADA’s requirements concerning medical examinations.
Next, Sumler argued the hospital impermissibly discriminated against her based on a perceived disability. Again, the 10th Circuit disagreed. It noted it wouldn’t “second-guess” the hospital’s decision that narcotic pain medications impaired mental acuity. The prohibition on the use of such medications was job-related, uniformly enforced, and consistent with business necessity.
Last, Sumler asserted a jury might conclude she was, in fact, qualified for the sonographer position, despite Roth’s opinion to the contrary. Again, the 10th Circuit rejected her contention. The court concluded the opinion provided by her personal physician—that she could perform the job—wasn’t based on the hospital’s requirements for the sonography job. Instead, his opinion was based on the fact she had worked as a sonographer for another facility. Had her physician actually analyzed the hospital’s job requirements, it’s possible the 10th Circuit would have allowed her case to proceed to a trial on the merits.
Lessons learned
You can use medical examinations to determine if applicants who have been offered positions are able, with or without an accommodation, to perform the job duties. But it’s important to ensure the eligibility criteria are job-related and consistent with business necessity. In this case, if Sumler’s personal physician had actually reviewed the pertinent job description and still disagreed with Roth, it may have been necessary to obtain a third opinion. Consider your options when dealing with preemployment medical examinations because such situations can easily end up in court.
When Your Employer Insists You Go Into Work During the Pandemic
The recourse rules for employees are complicated and somewhat untested
Effect of COVID-19 on Mental Health: Employer Legal Obligations
As employers strive to do their part to slow the spread and protect employees from physical impairments or even death caused by the coronavirus, lengthy lockdowns, social-distancing, and severe economic uncertainty are causing or aggravating serious mental impairments. A national poll by the Kaiser Family Foundation found that nearly half of adults—45%—report that the pandemic has affected their mental health. The Mental Health Association of Oklahoma and the Healthy Minds Policy Initiative warn that an estimated 92,000 more Oklahomans may experience suicidal thoughts in the wake of the pandemic with 13,000 likely to develop substance use disorders.
Faced with these facts, employers must be prepared to effectively and compassionately manage the mental health effects some employees are experiencing. In response to the alarming but understandable explosion of reported mental health disorders, this Client Alert highlights some legal issues under the Americans with Disabilities Act and the Family and Medical Leave Act that employers should prepare to manage well. We will also cover these issues in depth in an upcoming employment webinar—stay tuned for details.
Tomorrow at 6:00 p.m., the Tulsa World will be posting a “Let’s Talk” virtual town hall meeting at its website, focusing on mental health issues. The talk will feature Mike Brose of Mental Health Oklahoma and Dr. Sara Coffey of OSU’s Health Sciences Center.
Lack of Interpreters Cause Fear and Confusion Among the Deaf
In a time where information is critical members of the deaf community are not feeling included saying state officials are leaving them out of the Coronavirus conversation by not having American Sign Language interpreters at their daily briefings. Spectrum News spoke with deaf advocates and experts about how the lack of ASL interpreters at these briefings is causing confusion and fear within the community.
Daily press briefings bring vital information to the public during the COVID-19 pandemic, but for the deaf community, communication is being lost in no translation. Advocates say the absence of an American Sign Language interpreter during state briefings is leaving a segment of the population vulnerable.
“This is, it’s an ADA issue it's a safety issue they're putting our lives at risk, without providing proper interpreting and proper captioning,” said Access Deaf Consulting founder Dr. Jennifer Delora.
Disability Rights New York or DRNY, a non-profit that works to protect the rights of those with disabilities, has filed a complaint with the U.S. Department of Justice against Governor Andrew Cuomo for not having an ASL Interpreter at his live broadcast briefings.
A spokesperson from the governor's office says they, “deployed a dedicated ASL stream that’s available on our website and all conferences have been closed captioned.”
But Tim Clune, executive director of Disability Rights New York says while he applauds the governor for having the livestream it is not enough for the deaf community.
“For those people who rely upon American Sign is Language ASL, English is not always their first language,” says Clune. “There is a large population that gets their news solely on TV. Without having an interpreter simultaneously interpreting on broadcast TV, these people are never going to understand the messaging."
Advocates say some deaf people are relying on family members for information but that others are just sitting there unable to comprehend what is happening at a very critical time.
“The information that is being provided, says Clune. “It’s valuable information, I am happy with these daily briefings, but one step further and everyone will be able to understand what's going on.”
Not having an interpreter during live press briefings is a violation of the American with Disabilities Act, according to advocates.
“We're all very angry and very upset because the deaf people are having to take on our own fight and it's exhausting,” says Delora.
Clune hopes that filing the complaint, “will spark some action to have an interpreter present during the daily briefings.”
Members of the deaf community say this is not just a New York problem but a national one. Saying live broadcast briefings from the White House and various government officials from across the country have not provided ASL interpreters or have interpreters giving out wrong information.