According to EEOC's suit, NMOA violated the Americans with Disabilities Act (ADA) by firing Melissa Yalch Valencia, a temporary staffing agency employee, and failing to hire her for a full-time position because of her relationship with her then three-year old daughter, who had disabilities or was regarded as disabled.
Apria Healthcare Group to Pay $100,000 To Settle EEOC Disability Discrimination Suit
According to EEOC's suit, Apria violated the Americans with Disabilities Act (ADA) by firing Hilda Padilla approximately one week after she returned from medical leave to remove a 23-pound tumor. Although the company alleged the termination was due to a reduction-in-force, Padilla was not given notice of the impending layoff, and another warehouse clerk's position was not considered for elimination, according to EEOC's suit. The company initiated its decision to lay off Padilla only two days after she provided notice of her medical restrictions. Padilla was then left without medical insurance or the ability to receive follow-up medical care after her surgery.
New Image Building Services Sued By EEOC for Disability Discrimination
According to the lawsuit, New Image unlawfully discharged the employee because of his scoliosis, a condition involving an abnormally curved spine. The employee told his supervisor he had scoliosis when she told him he was being transferred to a position requiring him to wear a vacuum pack. In response, she fired him, EEOC said.
Watch out for retaliation after employee has complained about bias or harassment
Business Management Daily
Sure it’s frustrating when an employee gripes about general workplace problems. Don’t let that frustration spill over into retaliation. If the worker is making a good-faith complaint about alleged discrimination or harassment, he’s protected from retaliation.
Any punishment that would dissuade an otherwise reasonable employee from complaining in the first place qualifies as retaliation if it can be tied to a good-faith complaint.
Recent case: Stanley complained that his supervisor didn’t treat his illnesses seriously and got mad when he called in sick. He also complained that he wasn’t allowed to take FMLA leave for a cold or get an accommodation for a shoulder injury.
Eight months after Stanley filed an EEOC complaint, his supervisor took back a promise to pay relocation expenses if Stanley moved closer to his job.
Stanley sued, alleging FMLA and ADA violations, as well as retaliation.
The FMLA and ADA claims were dismissed because the employer didn’t have 50 employees and because the court concluded Stanley wasn’t disabled.
However, the court said reneging on a promise to pay relocation expenses could be considered retaliation because a reasonable employee might not file an EEOC complaint if he knew he would lose those payments. Luckily for the employer, the court said an eight-month gap between Stanley’s EEOC complaint and the relocation pay decision was too long to tie the two together. (Kieffer v. CPR Restoration, No. 15-3048, ED PA, 2016)
Risk of ADA Claims Rises as DOJ Contemplates New Website Compliance Standards
Lexology
Is your bank’s website accessible to the visually impaired? If it is not - or if you are not sure - now is the time to address this issue as businesses across the country are receiving demand letters and being made parties to legal claims for alleged violations of the Americans with Disabilities Act (ADA).
Ninth Circuit Finds ADA Claims Brought by Employee With Cerebral Palsy Can Go Forward
Lexology
Facially neutral decisions that are part of routine workforce reductions may not hold up in court if the only employee to be discharged in a group belongs to a protected class. In Schwartz v. Clark County, No. 14-16365 (May 27, 2016), the district court granted summary judgment for the employer in an age and disability discrimination case. However, the Ninth Circuit Court of Appeals reversed because events prior to the employee’s discharge suggested an improper motive.
EEOC Issues Updated Guidance on Workplace Retaliation
Lexology
On August 25, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on workplace retaliation issues. The EEOC enforces Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act (“EEO laws”), all of which prohibit retaliation against an individual for engaging in “protected activity.” The retaliation guidelines were first issued in 1998, but the EEOC felt that updated guidelines were necessary because of significant Supreme Court and local rulings regarding employment-related retaliation since 1998. The EEOC also noted retaliation charges have doubled since 1998, and retaliation is now the most frequently alleged basis of discrimination in all workforce sectors.
The EEOC Issues New Enforcement Guidance On Retaliation
Lexology
For the first time since 1998, the EEOC has updated its enforcement guidance on retaliation claims brought under the various anti-discrimination laws the Commission is charged with enforcing. Observing that retaliation is now the single largest category of claims presented in its charges, the EEOC’s new enforcement guidance advocates expansive interpretations of law to broaden retaliation protections for federal and private sector applicants and employees, creating new burdens on employers who decide to attempt to comply with this new EEOC directive.
Bend Don't Break: The EEOC Says Inflexible Attendance Policies Violates the ADA
Lexology
In managing employee attendance, be careful about policies that suggest automatic termination after a certain number of absences as the Equal Employment Opportunity Commission (EEOC) believes such policies violate the Americans with Disabilities Act (ADA). The EEOC has filed suit against Wayne Farms, a poultry plant, alleging the company’s attendance policy, which allegedly required the mandatory termination of an employee who accumulated more than 9 occurrences in 12 months violated the ADA.
Employer Settles Disability Discrimination Suit For $200K: Some takeaways
Mondaq News Alerts
First, do not rely on fear, generalizations, or stereotypes in making decisions about an employee’s disability. The ADA does permit employers to set qualification standards that an employee will not pose a “direct threat” to health and safety in the workplace. “Direct threat” is a legal defense established by the ADA that refers to “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require an employer to weigh a number of factors, and as such, this defense is very fact-specific. However, the determination must be established through individualized judgments of the employee’s ability to safely perform the job’s essential functions and must be based on reasonable medical judgment and objective evidence. In other words, taking adverse action against an employee that may be motivated by fear or stereotypes regarding their disability (such as, a supervisor allegedly expressing fear that people with Hepatitis C will infect others by using the bathroom) is asking for legal trouble.
Second, remember: “disability” is broadly defined. A bit of backstory may be helpful here. In 2008, Congress amended the ADA via the Americans with Disabilities Amendments Act (or, “ADAAA”). Congress did so in response to a number of court decisions, including Supreme Court decisions, that construed the definition of disability in what it regarded as too narrow or technical a fashion. In particular, the ADAAA included a directive that disability should be broadly construed in favor of coverage.
One method to establish protected disability status is when an employee has a physical or mental impairment that substantially limits one or more major life activities. The Act itself states the determination of whether a life activity is “major” should not be interpreted strictly or create a demanding standard for disability. Moreover, with the exception of eyeglasses or contact lenses, determining if a major life activity is substantially limited is done “without regard to the ameliorative effects of mitigating measures,” such as medication. Thus, in the example above, an employer would not be able to successfully argue that because the employee was undergoing treatment, he was not disabled under the meaning of the law.
Third, train, train, and train some more. Training your supervisors, managers, and HR team on the nuances of the ADA (and any state/local law equivalents in the states where your business operates) is a crucial component of ensuring compliance, promoting harmony in the workplace, and reducing potential legal exposure. You should plan for regular training — at least annually.
Are Foreign Nationals on H-1B Work Visas Eligible for FMLA Leave?
Lexology
Over the past few months, I’ve been asked by clients whether foreign nationals who are in the United States on work visas are eligible for FMLA leave.