FOR THE WANT OF AN OUTHOUSE---BY L D SLEDGE, JD

I promised last blog, on the definition of disability under the ADA, that I would give a case on point, to demonstrate what may be considered disabled. Here is a recent matter that didn’t go to court, but reached the outhouse door before settling.

EEOC guidance has made it clear that employers have to follow the ADA even when it contracts with temporary workers.  (The exemplary rule of this case would apply to permanent as well as temporary)

Recently, the EEOC settled a case in Illinois against R.R. Donnelly & Sons for failing to accommodate a temporary worker who experienced incontinence problems. The employer permitted the worker to go home to address the problem, but it also called the temp agency and informed it that the worker would not be permitted to return.  Because the employer decided to terminate the worker without considering possible accommodations, the EEOC alleged the employer violated the ADA.  The case settled with the worker getting $150,000.

DEFINITION OF DISABILITY UNDER THE ADA AS ENFORCED BY THE EEOC,BY L D SLEDGE, JD.

The following is extracted from the policy of the U. S. Equal Employment Opportunity Commission, section 902 Definition of Disability. (http://www.eeoc.gov/policy/docs/902cm.html)

     Title I of the Americans with Disabilities Act,(ADA), prohibits employment discrimination on the basis of disability. The ADA protects a qualified individual with a "disability" from discrimination in job application procedures; hiring; advancement; discharge; compensation; job training; etc. To be protected by the ADA, a person must meet the definition of the term "qualified individual with a disability".

     A major part of the inquiry in an ADA charge often will be the determination of whether the charging party is protected by the Act. This determination frequently requires more extensive analysis than does the determination of whether a person is protected by other nondiscrimination statutes. It is often unclear whether a person's physical or mental condition constitutes an impairment of sufficient degree to establish that the person meets the statutory definition of an individual with a "disability."

     The purpose of the ADA is to eliminate discrimination that confronts individuals with disabilities.

     Since the definition of the term "disability" under the ADA is tailored to the purpose of eliminating discrimination prohibited by the ADA, it may differ from the definition of "disability" in other laws drafted for other purposes. For example, the definition of a "disabled veteran" is not the same as the definition of an individual with a disability under the ADA. Similarly, an individual might be eligible for disability retirement but not be an individual with a disability under the ADA. Conversely, a person who meets the ADA definition of "disability" might not meet the requirements for disability retirement.

Statutory Definition -- With respect to an individual, the term "disability" means

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

      A person must meet the requirements of at least one of these three criteria to be an individual with a disability under the Act.

     The first part of the definition covers persons who actually have physical or mental impairments that substantially limit one or more major life activities. The focus under the first part is on the individual, to determine if (s)he has a substantially limiting impairment. To fall under the first part of the definition, a person must establish three elements:

(1) that (s)he has a physical or mental impairment

(2) that substantially limits

(3) one or more major life activities.

     The second and third parts of the definition cover persons who may not have an impairment that substantially limits a major life activity but who have a history of, or have been misclassified as having, such a substantially limiting impairment, or who are perceived as having such a substantially limiting impairment.

     Confused yet? Will present demonstrative cases in next blog on this subject. Is there a good reason to hire the right people? Reason enough just to avoid ever having to worry about this definition. No Fail Hiring will help you here.  This definition has subtly changed due to Sutton v. U.S. Airlines. But the test still is “is the employee substantially limited in a major life activity”. What does this mean?  Read next blog. I know you are holding your breath.

MY DISABILITY MADE ME DO IT!, BY L. D. SLEDGE, JD.

 

In Gambini v. Total Renal care, the court held that an employer cannot terminate or otherwise discipline an employee for misconduct if the misconduct is caused by a disability.

Stephanie Gambini worked for Davita, a company providing dialysis. She had a history of health problems and diagnosed with bipolar disorder. She was easily distracted, agitated, was angry and irritable. She was called into a meeting, where she was presented with a written performance improvement plan. She threw the plan across the desk and cursed her supervisors, saying they would “regret this.” She slammed the door on the way out, and kicked and threw items about her cubicle after the meeting. Numerous employees noticed DaVita about their concern. She was terminated.

The 9^th circuit, including California and the Northwest, said that “conduct resulting from a disability is considered part of the disability, rather than a basis for termination.” This is a departure from precedent, for other circuits do not hold tot his viewpoint. It could signal a change that could play havoc with small business. I cannot imagine such a decision unless there are facts not revealed in the report. As a previous employer, this would be totally unsupportable.

MY DISABILITY MADE ME DO IT!, BY L. D. SLEDGE, JD.

 

In Gambini v. Total Renal care, the court held that an employer cannot terminate or otherwise discipline an employee for misconduct if the misconduct is caused by a disablity.

Stephanie Gambini worked for Davita, a company providing dialysis. She had a history of health problems and diagnosed with bipolar disorder. She was easily distracted, agitated, was angry and irritable. She was called into a meeting, where she was presented with a written performance improvement plan. She threw the plan across the desk and cursed her supervisors, saying they would “regret this.” She slammed the door on the way out, and kicked and threw items about her cubicle after the meeting. Numerous employees noticed DaVita about their concern. She was terminated.

The 9^th circuit, including California and the Northwest, said that “conduct resulting from a disability is considered part of the disability, rather than a basis for termination.” This is a departure from precedent, for other circuits do not hold tot his viewpoint. It could signal a change that could play havoc with small business. I cannot imagine such a decision unless there are facts not revealed in the report. As a previous employer, this would be totally unsupportable.

What is the Pregnancy Discrimination Act? by L D Sledge, JD

The Pregnancy Discrimination Act is one of the progeny of Title VII of the Civil Rights act signed into law by President Lyndon Johnson in 1964.  Initially it covered discrimination because of sex, race, color, creed and national origin. It has been expanded to include age, pregnancy, pay, religion, ancestry, genetic types and a number of other areas have been brought within its embrace.

The Pregnancy Discrimination Act (PDA) applies to employers with 15 or more employees, and is violated when expectant women are not hired, fired, or otherwise discriminated against due to pregnancy or intention to become pregnant.  Employers may be likely to discriminate if they hold prejudices against working women and mothers and fear the productivity loss due to the absence of the employee.  Sometimes employers are unable to find and use temporary employees, unable to afford overtime pay for other employees to fulfill the duties during leave, or fear the employee will require too many accommodations after her return. This is a delicate area, and an employer will do well to avoid the dire results of in this area. Here are just a few of the tens of hundreds of cases.

Cases:

*  A boat captain fired while pregnant refused to abandon ship. she won $85,000 for emotional distress, repayment of all lost wages and the employer was fined $25,000. (Robert Ottinger, New York Employer blog, August, 2009)

* Jury awarded $720,000 in damages to an associate and a paralegal who claimed they were forced out of their New York law firm because of pregnancies. (Article posted in the ABA Law Journal August 22, 2008, by Debra Cassens Weiss)

* A Marin County Judge awarded $113,800 against filmmaker George Lucas for withdrawing a job offer to a San Francisco woman after she disclosed she was pregnant.  (Article by Bog Egelko, Chronicle Staff Writer, July 01, 2010.

Credit History as Hiring Criterion? No, No, No. By L D Sledge, J.D.

In December, 2010, the Equal Employment Opportunity Commission sued the Kaplan Higher Education Corporation for using credit history in its hiring process. The New York Times has the story:  http://www.nytimes.com/2010/12/22/business/22kaplan.html?hpwthe story.

Kaplan, a Washington Post Company, operates a string of for-profit colleges and training schools throughout the country.  The commission alleges that Kaplan has rejected job applicants based on their credit history which has a “significant disparate impact” on blacks. “This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. Private and government surveys have suggested that about half of all employers use credit histories in at least some hiring decisions.

“Disparate impact” is the theory that if a given test or criterion rules out a higher proportion of applicants from one race than from another — which almost any test will, given racial (or in some cases age) gaps in skills and abilities — it’s presumed illegal unless the company can prove it’s “job-related.” And “job-related” doesn’t just mean “significantly correlated with job performance”.   IQ tests may prejudice the ability to perform any given set of tasks, but they are totally verboten.

Justine Lisser, an E.E.O.C. spokeswoman, said that credit histories were often inaccurate and might not be a good indicator of a person’s qualifications for a particular job. “Credit histories were not compiled to show responsibility,” she said. “They were compiled to show whether or not someone was paying the bills, which is not always the same thing.” “This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. The agency did not specify what types of jobs were involved.

So what can be learned from this? Don’t use credit history as an element of hiring rationale.  Buy and read NO FAIL HIRING, and then schedule a workshop to get the confidential details on how to put this foolproof procedure into application.

EEOC shoots to kill in ADA cases, by L D Sledge, J.D.

FOR THE WANT OF A STOOL, A BUSINESS GETS SUED

Small business must be alert to an overall attack by the Equal Employment Opportunity Commission (EEOC) to enforce the American Disabilities Amendment Act, which requires employers to hire disabled personnel if the person can perform the job.

“The contributions of people with disabilities to the workplace ought to be valued, not rejected based on myths, fears and stereotypes,” said EEOC Chair Jacqueline A. Berrien. “The ADAAA made clear what the EEOC had always asserted: people with a range of disabilities are protected from unlawful discrimination. We hope that these cases send a clear message that the Commission will vigorously enforce the ADA.”

In September, 2010, the EEOC charged Eckerd Corporation, a nationwide drug store chain doing business as Rite Aid (EEOC v. Eckerd Corporation), for refusing a reasonable accommodation---a stool to sit on. The employee, Fern Strickland, had worked as a cashier for Rite Aid for seven years and had severe arthritis of her knees. She was given a stool to sit on, and was able to carry out her work with satisfaction until a new manager “didn’t like the idea” that Strickland used a stool. She was terminated because the manager refused to accommodate her disability “indefinitely.”

This violated Title I of the ADA. The EEOC filed suit after first trying to reach a voluntary settlement, and is seeking back pay as well as compensatory and punitive damages, as well as injunctive relief designed to prevent such violations in the future.

Compensatory damages compensate the claimant for things actually accountably lost---wages, past, present and future, mental and emotional anguish, pain and suffering, etc. Punitive damages are where companies get fried through “punishment” or to make an example. Juries have zero tolerance of such incidents as in the Strickland case and a large damage award is expected. Could this manager have kept the stool?

 Was this an error in hiring this guy? You bet!