Posts Tagged ‘disability’
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.
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.
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.
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.
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.
So today’s posting does not directly address employment issues but it does address issues under Florida Statutes, the Fair Housing Act and the Americans with Disabilities Act. The issue today relates to disabled persons use of service dogs.
It has come to my attention that 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.
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