Posts Tagged ‘ADA’

A consent decree agreement entered Thursday in federal court resolves a disability discrimination lawsuit against Wal-Mart Stores Inc., filed by the U.S. Equal Employment Opportunity Commission (EEOC) last year on behalf of former employee Charles Goods, and discrimination claims filed by Goods.

The EEOC took up the Greeneville resident’s case against the retailing giant, claiming in a lawsuit filed in October 2010 that Wal-Mart violated federal law when it fired longtime employee Goods because of a cancer-related disability, and retaliated against him for complaining about the discrimination.

The orders in the decree signed by U.S. District Court Judge J. Ronnie Greer include a provision that Wal-Mart pay $275,000 in full settlement of the claims, including $110,000 in back pay with interest and $165,000 for compensatory damages to Goods.

Back wages are for the years 2009 and 2010.

Wal-Mart was also ordered to conduct anti-disability discrimination training for management and take steps to prevent “further failing to provide reasonable accommodation” to employees with disabilities.

EEOC filed the lawsuit under provisions of the Americans With Disabilities Act (ADA) of 1990 and the subsequent ADA Amendments Act of 2008 (ADAAA), and the Civil Rights Act of 1991.

Goods was hired by Walmart in January 1997 and worked as a forklift operator at the Distribution Center for more than 12 years. In 2005, according to the EEOC civil complaint, he underwent surgery for thyroid cancer.

The surgery severed several nerves and left Goods with limited feeling or strength in his right arm. He remained “a qualified individual with a disability,” the complaint said.

In November 2008, Goods’ supervisor asked him to relieve an employee in the shipping department for a 20-minute break. Goods replied that he could not perform the work because he couldn’t do the manual lifting required there.

He was asked to complete a request for reasonable accommodation, court documents said.

The EEOC complaint demanding a jury trial said that Goods requested reasonable accommodation to continue working in the section of the Distribution Center where he operated a fork lift, adding that he was employed successfully for 12 years, including the three years following his cancer surgery.

Wal-Mart claimed an essential function of Goods’ job “was manual lifting,” the EEOC complaint stated. Goods’ doctor advised Wal-Mart that he could not perform manual lifting.

“In practice, [Wal-Mart] did not require Goods to do any significant manual lifting in order to successfully perform his job,” said the complaint, which claimed the company denied Goods’ requests for reasonable accommodation, asserting that he could not perform essential job functions.

“[Wal-Mart] did not enter into the interactive process to accommodate Mr. Goods’ disability,” the complaint stated, instead placing him on leave “and subsequently discharging him because of his disability.”

Goods was placed on a 90-day leave on Dec. 18, 2008, in response to his request for an accommodation, and denied an appeal before he was advised that “it was his responsibility to find another position that did not have a written requirement of manual lifting.”

He filed a charge of discrimination on May 18, 2009, and was terminated by Wal-Mart on July 16, 2009, “in retaliation for his continuing to request a reasonable accommodation for his disability,” the EEOC complaint stated.

If you believe you have suffered discrimination or job termination due to a disability, feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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It is a violation of the Americans with Disabilities Act to terminate or refuse to consider an employee for a position based upon their disability or based upon a perceived disability. Robert Bush recovered a large jury verdict where his employer treated him differently based upon his heart condition.

A federal jury has awarded a Gillette man $1.2 million in damages in his wrongful termination lawsuit against a heavy-equipment dealer.
The jury found last week that Casper-based Wyoming Machinery Co. violated the Americans with Disabilities Act in terminating Robert G. Bush after he underwent open-heart surgery.

According to a pretrial memorandum filed on behalf of Bush, he began employment with Wyoming Machinery on Sept. 1, 1999, as a tube technician and later as a mechanic working on heavy equipment, including haul trucks at coal mines in Campbell County.
Bush underwent open-heart surgery in October 2006 and was told by his physician not to work for six months and to work only “light duty” when he returned to his job.

The company considered Bush disabled and placed him on long-term disability, according to court records.
Bush returned to work in April 2007 as a heavy-equipment mechanic. But, on the second day back on the job, he suffered what he characterized as a mild heart attack, and he returned to long-term disability.

In August 2007, Bush was contacted about a site coordinator position open at the North Antelope mine. He was 51 years old at the time. He didn’t get that position and wasn’t notified about an opening at another mine that went to a younger, less-qualified employee, the court records said.

Bush was qualified and physically able to handle the site coordinator position, according to the lawsuit.
The company contended the person who got the job had better computer skills than Bush.

Bush was terminated July 15, 2008, based on company policy that an employee cannot be absent from work for more than six months. He had been absent from work for about 21 months with the exception of two days he worked in April 2007, company attorneys wrote.
Wyoming Machinery Co. also said Bush did not suffer a mild attack after he returned to work but had only a muscle problem. And it argued that Bush’s physician never told him that he needed to take time off work to recuperate. The company paid Bush $19,000 in disability benefits before he was terminated.

If you believe you have been the subject of discrimination based upon a disability, feel free to consult with Scott M. Behren and the Behren Law Firm to learn your legal rights.

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As we have blogged on many occasions, discrimination against an employee based upon a disability whether in the hiring process or during performance of the job, is generally illegal under the Americans with Disabilities Act (ADA). Apparently the Federal Transportation Services Administration was so busy perfecting their pat down searches that they forgot these laws apply to them.

Air force veteran Michael Lamarre applied for a transportation security officer position with the Transportation Security Administration (TSA) in 2008. As part of the interview process for the position, Lamarre had to undergo a medical screening. It was during this screening that he disclosed his HIV status.

Despite receiving a letter from his physician that stated Lamarre “is capable of meeting the [TSO] job requirements safely, efficiently and effectively with respect to [her] medical specialty and this candidate’s medical condition and/or diagnosis,” the TSA notified Lamarre in 2009 his HIV status resulted in medical disqualification. Represented by the American Civil Liberties Union, Lamarre fought the decision, claiming discrimination.

In September 2008, the Americans with Disabilities Act (ADA), a law that protects the rights of the disabled, was amended to explicitly cover HIV-positive individuals.

If an employee’s HIV symptoms or medications are interfering with the job requirements, the ADA allows for the employee to request what is known as a reasonable accommodation. A reasonable accommodation is a reasonable change in the work environment or the way a job is performed that allows the disabled person to fill the position.

There are also statutes in many states that prohibit discrimination based upon being HIV positive.

If you believe you have been discriminated against based upon HIV or some other disability, feel free to speak with Scott Behren or the Behren Law Firm for a free consultation.

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As discussed before, a pregnant employee can face many different legal issues with her employer that impact many different laws including the Pregnancy Discrimination Act (PDA), The Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) and possibly the Genetic Information Nondisclosure Act (GINA). Pregnant employees also need to know about their short term and long term disability insurance plans and how they interact with these laws. Most of these laws clearly cover natural pregnancy and adoption, but what about birth by surrogate?

That issues is now being addressed in a recently filed case. A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother.

Kara Krill, a clinical business manager at the Massachusetts-based company Cubist Pharmaceuticals, is claiming breach of contract, breach of good faith and fair dealing, discrimination on the basis of her disability and gender, and negligent misrepresentation by the company. She is seeking an injunction against Cubist, as well as compensatory and punitive damages.

Krill developed Asherman’s Syndrome – a condition which rendered her infertile – following the birth of her first child. When she and her husband decided to have a second child they used a surrogate. The resulting twins are biologically related to both Krill and her husband.

Following her first pregnancy, Krill was given 13 weeks of paid leave under the company’s maternity leave policy. However this time Krill says she was informed that she would only be entitled to five days of paid leave and up to $4,000 in expenses – as is offered to adoptive parents. Paternity leave under Cubist’s policy is also five paid days.

In her letter of complaint to Cubist, Krill stated: ‘But for my physical disability, I would be receiving the paid maternity leave offered by Cubist. Accommodating my disability would not require [Cubist] to provide me with any more benefit than other mothers’. Furthermore, she complained of discrimination and verbal abuse by her supervisor in the workplace due to her disability and surrogacy arrangement.

What do you think about Krill’s situation?

If you or someone you know is pregnant, and are not sure how to navigate the maze of legal issues that face you, feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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Under Federal law, a woman can not be discriminated against or terminated based upon her being pregnant. Typically, there are also state laws, such as in Florida the Florida Civil Rights Act, that mirror the Federal laws. However, agricultural giant Olam International has not been following the law which has resulted in them being sued by the Equal Employment Opportunity Commission (EEOC).

A woman named Jennifer Heintz claims she was offered a job as an executive assistant to two presidents with Olam. She took the job, but three days later, she was told the company was holding off on filling the position. Four days after that, Olam hired another person to fill the position. Heitz contends that the job offer to her was withdrawn based upon her being pregnant. Apparently, the EEOC agreed since the EEOC, in most cases, does not bring suit on behalf of an empoyee.

A lawyer for the EEOC stated, about pregnancy discrimination:

“It remains a serious problem — women not getting jobs, women being forced out of jobs, essentially being fired, and in this case, hired and fired immediately after they learned of the pregnancy.”

And the problem seems to be getting worse. In the five years from 1997 to 2001, the EEOC received 20809 pregnancy discrimination complaints. In the last five years, they received 29088, a 40% increase.

The EEOC further stated, “There is an added stigma because you become pregnant, therefore in the future and after even you have your child, that you will not be a productive worker,” she said. “That’s simply not true.”

If you believe you have suffered termination or discrimination due to your pregnancy, or have been denied Family Medical Leave, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.

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We have blogged in the past about the Family Medical Leave Act which allows you to take up to twelve weeks off, of unpaid leave, to address a family pregnancy, adoption, illness or death. Upon returning to work, your employer is required to make sure your job or one substantially the same is still available. One problem, though, is that the Federal law only covers employers with at least 50 employees. This can be problematic for many employees of smaller companies with no comparable state law protections, case in point, Claudia Rendon of Philadelphia.

Claudia Rendon, 41, of Philadelphia, said her employer, Aviation Institute of Maintenance, fired her after she took time off to donate a kidney to her son.

Rendon, who worked for a year and a half in the school’s admissions office, said she notified the school that she planned to take leave on July 19 to undergo kidney transplant surgery on July 21 at the Hospital of the University of Pennsylvania on behalf of her 22-year-old son, Alex, whose kidney failed last January. After extensive testing in early July, Rendon was found to be a match.

Kidney transplant surgery normally requires at least six to eight weeks of recovery time, and Rendon said the Aviation Institute agreed to give Rendon unpaid leave until Sept. 1. Rendon told ABCNews.com that on her last day of work before the surgery, her manager promised Rendon she would have her job upon her return, but one hour later, asked her to sign a letter acknowledging that her job was not secured.

“They said, ‘If you don’t sign this letter, you are abandoning your job and quitting,’” Rendon told ABCNews.com. “I said, ‘I am not abandoning my job. I am saving my son’s life.’”

The fact that the FMLA does not cover Ms. Rendon does not necessarily mean she is out of luck, there is also a possibility that she can bring claims under the Americans with Disabilities Act or relevant disability insurance policies.

If you find yourself wrongfully terminated, speak to an employment lawyer to learn your legal rights. Feel free to call Scott M. Behren and the Behren Law Firm for a free consultation.

In the interim, everyone should send hate mail to the wonderful people at Aviation Institute of Maintenance in Philadelphia.

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I have previously blogged about discrimination against service dogs as a violation of the ADA and state statutes.

In many states, condo associations are giving hard times to disabled persons who have service dogs, especially where the association has no pet rules. Florida Statutes 413.08.  Under the Florida Statutes, at subsection (2) An individual with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges in all public accommodations.  Moreover, under subsection (3) An individual with a disability has the right to be accompanied by a service animal in all areas of a public accommodation that the public or customers are normally permitted to occupy.  It is interesting to note also that the statute mandates that an association may not charge a surcharge or pet deposit for a service dog even if normally charged for a pet.

However now there is a new wrinkle. What if a person’s service dog is one of the breeds considered to be a danger to the public? City officials in Denver and in the neighboring suburb of Aurora are being sued over their enforcement of dog breed bans. The suit claims the bans violate the Americans with Disabilities Act.

Aurora resident and Vietnam veteran Allen Grider is one of the litigants. He suffers from post-traumatic stress disorder and claims his 8-year-old trained service dog, Precious, is essential in helping him cope with his disability. In 2009, Aurora officials seized Precious under the city’s 3-year-old pit bull ban. Though city officials eventually returned Precious to Grider, the reunion came with restrictions, including muzzling the dog in public. Grider and his lawyer, Jennifer Reba Edwards, say that the restrictions make it impossible for Precious to work as a service dog, and that they violate the ADA. The lawsuit is still ongoing, but I will be sure to keep you posted on the final result.

If you are having problems due to your service dog or are otherwise being discriminated against due to your disability, feel free to call Scott M. Behren and the Behren Law Firm for a free consultation on this matter.

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I have previously blogged that alcoholism is considered a disability under the Americans with Disabilities Act in many circumstances. Old Dominion Freight Line has now found that out based upon an EEOC lawsuit filed against it.

The U.S. Equal Employment Opportunity Commission filed a lawsuit this week arguing that Old Dominion Freight Line discriminated against Charles Grams by stripping him of his position and offering him a demotion even if he completed a substance abuse counseling program.

The EEOC says alcoholism is a recognized disability under the ADA and that the company violated the law with its policy that bans any driver who admits alcohol abuse from driving again. The EEOC wants the company to reinstate Grams and another affected driver to their previous positions and provide them with back pay, compensatory and punitive damages and compensation for lost benefits. The EEOC is also seeking to block the company’s alcohol-related policy.

According to the EEOC’s suit, Grams, who had been with Old Dominion for five years without incident, informed the company in June 2009 that he believed he had an alcohol problem. The company suspended him from his driving position, which paid him nearly $22 per hour, including benefits. In compliance with U.S. Transportation Department regulations, Grams met with a substance abuse professional who notified the company that Grams would participate in an outpatient treatment program and could return to work. But Old Dominion told Grams that he wouldn’t be allowed to drive again for the company and instead offered him a part-time position as a dock worker as soon as it became available. The position paid $12 per hour without benefits, the lawsuit alleges.

The EEOC contends that the company’s actions deprived Grams and other affected drivers of “equal employment opportunities and otherwise adversely affect their status as employees, in violation of the ADA.”
“Grams is a qualified individual with a disability under ADA … who can perform the essential functions of a driving position,” the suit says, adding that Grams and other employees wouldn’t need treatment to perform non-driving duties.

If you believe you have been subjected to discrimination in the workplace or had your job terminated based upon a disability, including alcoholism or substance abuse, feel free to call Scott Behren and the Behren Law Firm for a free consultation about your legal rights.

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As you all may know, the Americans with Disabilities Act prohibits employers from discriminating or terminating an employee based upon a disability or perceived disability. One question that came up in Florida Court is whether it is a violation of the ADA to require employees to participate in wellness programs or face an insurance premium surcharge.

In 2009, Broward County, Florida implemented a wellness program for its employees. The program required participants to take a health assessment test and produce a blood sample to determine glucose and cholesterol levels. Those who didn’t participate had a $20 surcharge on health plan premiums.

Broward County employee Bradley Seff filed a class-action complaint, alleging that the county’s wellness incentives violated the ADA. The U.S. District Court for the Southern District of Florida dismissed the lawsuit, saying, “The wellness program is not a subterfuge; it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA’s safe harbor provision.”

The court noted that the two requirements of the safe harbor provision were met in this case:

(1) that the party in question be a bona fide benefit plan

(2) that the provision in question be based on underwriting, classifying, or administering risk and not be used as a subterfuge for discrimination.

The EEOC has suggested informally that a wellness program that is mandatory or involves a penalty may violate the ADA, although it has not issued any formal guidance.

If you believe you have been subjected to discrimination at the workplace based upon a disability, feel free to call Scott Behren and Behren Law firm for a free consultation.

Here is a copy of the decision of the Federal Court in Bradley Seff v. Broward County.

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Many of you man know that if you your employer has at least 50 employees and you have been a full time employee of the employer for 12 months that you may be entitled to Family Medical Leave Act leave in the event of your serious health condition or that of one of your relatives. A new Federal Court opinion has indicated that an employee may not only take that FMLA leave, but should not be pestered about when they will return to work.

A U.S. District Court for the Western District of Arkansas opinion dismissed Howard Memorial Hospital’s motion for summary judgment and concluded that a jury should be presented with the Family and Medical Leave Act interference claim made by a hospital employee who said she felt pressured to return to work during her medical leave.

In the case, Regina Terwilliger, a former Howard Memorial Hospital housekeeper, claims that her supervisor contacted her on a weekly basis to ask when she would return to work after undergoing back surgery. One pivotal phone conversation revolved around Terwilliger’s work status, with the housekeeper asking if she was at risk of losing her job while she was at home recovering. During that conversation, Terwilliger’s supervisor responded to her questions by saying that she should return to work “as soon as possible.” Terwilliger decided to cut her medical leave short and returned to work a week early. A few weeks after returning to work, the hospital fired Terwilliger, alleging she stole from another hospital employee. Terwilliger says she was fired for taking FMLA leave and asserts that the hospital deprived her of the act’s full benefits by pressuring her to return to work early.

“Interference includes discouraging an employee from using FMLA leave,” the district court wrote.

If you have questions about your rights under the Family Medical Leave Act or FMLA, call Scott Behren and the Behren Law Firm.

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