• print
  • decrease text sizeincrease text size
    text

Mental Health and Your Rights in the Workplace

Share this post

Entering the workforce is an exciting rite of passage for most young people but the ability to work a job isn’t always cut and dry. For example, you may have physical or mental limitations that impede your ability to perform certain tasks. It’s crucial to note that disabilities aren’t always visible, and mental health disorders are particularly notable in this regard.

In and out of the workplace, mental health disorders are strikingly prevalent. Data indicates that more than 46% of adults in the U.S. will experience a mental illness at some point in their lifetime. Although commonplace in modern society, the unfortunate reality is that psychiatric disabilities remain widely misunderstood — even stigmatized. For workers struggling with a mental health disorder, this can be especially problematic, and you may worry about losing your job.

The good news is that the Americans with Disabilities Act (ADA) ensures certain protections for disabled workers no matter the nature of their disability. Here’s what you need to know about reasonable accommodations and workplace rights when it comes to mental health conditions under the ADA.

What are Your Rights as a Disabled Worker?

The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” Psychiatric disorders were added to the ADA in 2008, and workers with a history of mental illness today have the right to privacy as well as the right to reasonable accommodation. In layman’s terms, “reasonable accommodation” could involve altered work schedules, changes in supervisor interaction and more. 

Providing reasonable accommodation, however, isn’t solely the responsibility of your employer. You must also advocate for yourself and your workplace rights, and inform your manager or the HR department of any accommodations you may require. Always provide written documentation that verifies your condition and how it may affect your work to better protect yourself in the event of potential discrimination.

Additionally, workers who have mental health conditions including depression, post-traumatic stress disorder (PTSD), or bipolar disorder are also legally protected against discrimination and harassment. As such, your employer cannot fire you, reduce your hours, or otherwise impede your ability to work simply because you’re living with a mental health condition. If you believe that your rights have been violated, don’t hesitate to speak up to both management and your colleagues alike. 

The Prevalence of Mental Health Disorders

An unfortunate side effect of our fast-paced modern world is that it can harm our mental health. Even before COVID altered life as we know it, the overall picture of mental health in the U.S. was rather discouraging. According to Forbes, the youngest members of the workforce are the most vulnerable in terms of poor mental health. Among young people between the ages of 12 and 17, major depressive episodes (MDEs) are increasingly commonplace, and treatment is far from consistent.

Studies show that treatment is vital when it comes to mental health disorders. Effective treatment methods can vary significantly among individuals, from therapy and counseling to medications and general lifestyle changes. To better manage your mental health condition while on the job, you can also take a more holistic approach. Techniques such as breathing exercises and practicing mindfulness can do wonders for reducing your anxiety and managing stress

Taking Charge of Your Mental Health at Work and Beyond

Within the workplace, you should be aware of your limitations in whatever form they happen to take and how they can impact your performance. Mental health disorders can be a productivity killer, significantly impacting your employer’s bottom line. Medical professionals report that the estimated economic impact of depression alone exceeds $31 billion annually in social, psychological, and occupational costs. 
For many Americans, living with a mental health condition while also actively participating in the workforce can be especially challenging. As we continue to adapt to life post-COVID, addressing mental health in the workplace and protecting workers rights is more important than ever. As such, you should take steps to protect yourself, and knowing your workplace rights under the ADA is an ideal starting point.

This blog is printed with permission.

About the author: Dan Matthews is a writer, content consultant, and conservationist. While Dan writes on a variety of topics, he loves to focus on the topics that look inward on mankind that help to make the surrounding world a better place to reside. When Dan isn’t working on new content, you can find him with a coffee cup in one hand and searching for new music in the other.


Share this post

New York City Workers with Disabilities Fight for Inclusion in Pandemic Recovery, Mayoral Race

Share this post

Even before the pandemic, unemployment among disabled workers in New York City was at a crisis level—just 30 to 35 percent were employed. Over the past year, the situation has grown even worse.

Independent living centers, which help disabled residents find socio-economic stability, reported that more than 50 percent of their clients were let go from their jobs, the Center for an Urban Future found in a March 2021 report.

Now, leaders of these centers are preparing a policy platform and calling for greater resources from City Hall hopefuls. As talk of pandemic recovery intensifies and the June 22 primary for citywide and council races fast approaches, leaders see an opportunity to make inroads against growing inequities.

FIRST FIRED, LAST REHIRED

The United States Census estimated there were nearly 900,000 people with disabilities in New York City as of 2019; the Office of the New York State Comptroller put it even higher, closer to 930,000 in 2017.

That’s a population close to twice the size of the borough of Staten Island. It’s a broad group of people, cutting across class, racial, and gender identities, with disabilities such as visual, hearing, ambulatory, cognitive—the list goes on.

“We’re the nurse, the doctor, the police officer, the educator, the person who’s cleaning the sidewalk, the person stocking shelves in stores,” said Christina Curry, executive director of the Harlem Independent Living Center. “You don’t need to be born in this community. It can happen at any moment.”

Independent living centers like Curry’s offer job training, counseling, and educational programs. Organizer Ed Robert led efforts to develop the independent living movement in the 1970s in Berkeley, California, as a means of empowering disabled people to live fulfilling lives on their own terms.

But New Yorkers with disabilities face a longstanding employment crisis. “Poverty is a huge, huge issue,” said Susan Dooha of the Center for the Independence of the Disabled, a nonprofit that serves 40,000 New Yorkers annually.

Data compiled by the University of New Hampshire Institute on Disability Statistics showed that about 26 percent of people with disabilities were living below the federal poverty level last year. The poverty level for a family of four in the United States in 2021 is an annual income of $26,500.

“We’re the last hired, first fired, and last rehired if things work the way they are now,” said Susan Scheer, founder of the city’s Access-A-Ride program (launched in 1990, the initiative offers a door-to-door transportation service to disabled New Yorkers) and CEO of the Institute for Career Development.

Often the main barriers to employment are “misinformation, fear, stigma,” Curry said. “Our common goal is to get the disabled community employed, to have access to the community, to remove those barriers.”

TRANSIT A HUGE OBSTACLE

With thousands out of work, transit reform will be crucial to bridging the gap.

Joe Rappaport of the Brooklyn Center for the Independence of the Disabled points to a survey by the New York Independent Living Council. “Transportation is cited as the second-most prominent reason for people to have trouble getting employment,” said Rappaport. “Second to discrimination.”

Less than one-quarter of New York City’s subway stations are compliant with the Americans with Disabilities Act (ADA), which passed over 30 years ago. And that’s if none of the elevators are out of service.

Many advocates want to see the transit system overhauled to reflect the principle of universal design, in other words, the reconstruction of spaces so that they can be accessed and understood by the largest group of people, regardless of their background and ability. Many of the changes community members would like to see, such as accessible subway stations and taxi cabs, are already mandated by city, state, or federal laws like the ADA.

Rappaport and others are involved in a growing number of accessibility-related lawsuits against local and state government to force these reforms. While he couldn’t comment on any one case in particular, he said he sees a decades-spanning trend.

“Typically, the response of the city when a disparity or shortcoming is pointed out by members of the community or organizations is, the city just says, â€We’re going to fight this with everything we’ve got.’” Rappaport said. “This isn’t the de Blasio administration, or Bloomberg, or Giuliani, or Koch or Dinkins—it’s every administration.

“It’s inexcusable and it costs money. We’re going to win. The city’s going to lose. But in the meantime, the city’s lack of action puts people at risk.”

EMPTY BOARD SEATS

While it’s true that New York Governor Andrew Cuomo and state legislators in Albany have immense power over the Metropolitan Transit Authority (MTA), New York City isn’t powerless when it comes to decisions on the system’s capital projects.

The new mayor, whoever that turns out to be, may have a rosier relationship with the governor’s office than current Mayor Bill de Blasio does. Rappaport suggested a new mayor should redouble efforts to appoint members to the MTA Board; there are two vacancies now, but Cuomo has made no concerted public effort to get de Blasio’s nominees confirmed by the state senate.

These individuals would have veto power over capital projects that don’t, for instance, include financing the construction of additional elevators in the city subway system.

“Other entities—the state senate and assembly for example—over the years, have influenced the direction of the MTA’s capital program by using the threat of veto power to get what they want,” Rappaport said. “It’s not an unheard-of idea.”

In April the MTA proposed “Zoning for Accessibility,” a series of zoning reforms to incentivize private developers with the promise of financial awards to build elevators in the city’s subway stations.

This proposal aligns with the transit system’s five-year plan released in 2019 to pump millions of dollars into accessibility-oriented upgrades at dozens of stations. This week several transit and accessibility advocacy groups rallied together to call on President Biden to include $20 billion for this capital plan in the proposed federal infrastructure bill (also known as the American Jobs Plan).

CITY MUST LEAD BY EXAMPLE

And yet, even if transit options were widely accessible, other barriers to employment abound—chief among them, discrimination by employers.

Brett Eisenberg has been battling it for decades; before his current role as executive director of the Bronx Independent Living Center, he was at the insurance company American International Group working to improve corporate hiring practices.

“There’s a lot of misinformation out there about hiring people with disabilities,” said Eisenberg. “A new administration should lead by example. If you’re not hiring people with disabilities, how can you expect anyone else to?”

Many advocates point to the federal hiring quota for people with disabilities as a standard that the city should adopt, since it currently does not have one. Under the Obama administration, the federal government required that people with disabilities comprise 7 percent of its workforce; it soon surpassed that figure, hitting 14 percent in 2016.

SHUT OUT OF ELECTIONS

In an open letter to candidates for municipal office this spring, a coalition of independent living center directors and advocates demanded that campaigns become more accessible to disabled voters.

“Federal and local laws require reasonable accommodations for people with disabilities, including allowing full access to events, forums, and meetings,” they wrote. “But those laws often are ignored, and we end up shut out of the electoral process.”

The letter hasn’t gotten much response. “To be honest, we received a little inquiry, but not what we would want,” co-signer Eisenberg said. “In general when we talk about people with disabilities, the biggest problems we have are attitudinal.”

With primary day drawing near, a mix of co-signers of the April letter and others are working to release a formal platform to present to candidates on behalf of the disability community.

“It’s late in the game, but we think it will be useful for the next administration,” Rappaport said, “not just the next mayor but the next city council and other officials.”

‘NOT EVEN ON THE RADAR’

Only a few candidates had reached out to center leaders by the time of writing this article. Many advocates are concerned that services for the disabled are still largely left out of the political discourse.

“I have to be very careful, because politicians have very long memories,” Curry said. “We’re not even thought about to be forgotten when politicians and candidates start talking about what they want to do to help New Yorkers. We’re not even on the radar.

“We’re constantly re-educating them: we’re here. You want us to go vote? Well, it would be nice if you would help us in that fight to make sure the polling place is accessible.”

For Scheer, it comes down to political will. “Disability is a product of the environment, and the environment can be adapted,” she said. “I use a wheelchair, so stairs make me disabled when a ramp makes me abled.

“I don’t want to be having this conversation again with somebody in 20 years. This is our moment and we can really change the tide.”

This blog originally appeared at LaborNotes on June 10, 2021. Reprinted with permission.

About the Author: Emmet Teran is content manager of Unit, a digital platform launched to help U.S. workers form unions. He’s also a New Yorker with low vision and an Urban Policy & Leadership Master’s student at Hunter College.


Share this post

Failure to Accommodate is Disability Discrimination

Share this post

Many people with disabilities face barriers before they even get their foot in the door. But the hiring process is only one form of disability discrimination.

Employers — including federal agencies and government contractors — are legally obligated to accommodate disabilities. But what is considered a “reasonable” accommodation? What if the employer says no?

What does disability accommodation look like?

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers must provide reasonable accommodations to enable individuals with a disability to (a) compete for a job, (b) access the workplace, (c) perform the functions of the job and (d) enjoy the perks and privileges of the job.

The Equal Employment Opportunities Commission offers these examples of disability accommodations:

  • A wheelchair ramp or handicap-accessible bathroom
  • Specialized equipment or workstation alterations
  • Dictation software for a person with carpal tunnel syndrome
  • An interpreter or TTY software for a hearing-impaired person
  • Changing or eliminating some job tasks
  • Dividing the work day or allowing for extra breaks
  • Working from home (telecommuting)
  • Reassignment to a vacant position

What is the process for requesting accommodations?

Many applicants are hesitant to ask for accommodations during the hiring process. They don’t want to jeopardize their shot, or may not know what accommodations are needed until they start the job.

A request for accommodations can be made at any time, orally or in writing. Once the request is made to a supervisor or manager, it must be forwarded to the agency’s designated Disability Program Manager. The DPM must accept the request and forward it to the appropriate parties. The DPM must respond to the employee within 10 days to discuss viable solutions.

What does failure to accommodate look like?

If management ignores or flatly refuses a reasonable request, that constitutes discrimination. The law requires employers to make a good faith attempt to work with the disabled employee. If the accommodation is not feasible because of cost or other factors, the employer is obligated to offer alternatives or consider compromises. Under the law, refusing to engage in an interactive process is considered failure to accommodate.

For federal employees, all requests for accommodation go through the EEOC. Sometimes the EEOC authorizes an accommodation that differs from the original request. This is not considered failure to accommodate.

What are the remedies for disability discrimination or inadequate accommodation?

If the EEOC denies a request, it must give a detailed explanation why. The employee can request reconsideration through an informal process. If the decision is still unsatisfactory, or if there has been an adverse action, the employee can initiate a formal appeal or grievance through the EEOC or the Merit Systems Protection Board.

If a government contractor or other private employer denies a reasonable request, the remedies vary. The employee could sue to force the employer to provide accommodation. If the employee was let go, reassigned or harassed after requesting accommodations, they could sue for reinstatement or sue for damages for wrongful termination or retaliation.

People with disabilities want to work and contribute and be valued, just like everyone else. If the accommodations would be effective and would not cause the agency or company undue hardship, the law requires it.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on May 31, 2018. Reprinted with permission.


Share this post

Must employers provide ADA leave after FMLA runs out?

Share this post

The Family and Medical Leave Act mandates that employers provide up to 12 weeks of unpaid leave for a serious medical condition. But what happens when an employee requests additional weeks or months off for a disabling condition?

The 7th U.S. Circuit Court of Appeals has rejected one man’s request for a three-month extension beyond his FMLA leave. After his employer fired him, the man claimed the company had violated its obligations under the Americans with Disabilities Act. Now he is asking the Supreme Court to step in to interpret the ADA favorably.

Is long-term disability leave a reasonable accommodation?

Employers (and courts) have long wrestled with extended leave under the Americans with Disabilities Act. The ADA requires employers to make “reasonable accommodation” of a person’s disability. It is illegal to fire someone on the basis of their disability. But how far do employers have to go to make allowances for a person who cannot work at all because of their physical or mental impairment?

Raymond Severson took a four-month leave from his blue-collar job to deal with disabling back pain. At the end of his leave he had back surgery, which required another two or three months of recuperation. Having exhausted his 12 weeks under the Family and Medical Leave Act, he asked his employer, Heartland Woodcraft Inc., for a continuation of leave. The company declined and terminated his employment.

Courts are split on the issue

Severson sued for discrimination, arguing that his termination was a failure to provide reasonable accommodation under ADA. The district court sided with the employer and the Seventh Circuit affirmed that decision. In its opinion, the appellate court interpreted the ADA as an anti-discrimination statute, not a medical leave entitlement. It flatly asserted that “a multi-month leave of absence is beyond the scope of reasonable accommodation.” The decision was consistent with a similar rulingby the Seventh Circuit earlier in 2017 which upheld the termination of a state employee who was unable to resume work after a four-week extension beyond FMLA.

But the Seventh Circuit decisions are at odds with the interpretation by the Equal Employment Opportunity Commission and other circuit courts. The EEOC and appellate courts have agreed that the ADA does not require indefinite, open-ended leave. Yet they have ruled that employers cannot put an arbitrary hard cap on medical leave. The EEOC’s stance led to a $2 million settlement on behalf of a UPS worker who was denied leave beyond UPS’s 12-month cap.

Can employers issue pink slips after FMLA runs out? Is a multi-month extension beyond FMLA a reasonable request? What if the employee needs a second extension or future accommodations? The Supreme Court often wades in when the appellate courts are divided and the case has broad implications. But the high court has a full docket and may not take up the case this year. For the time being, employees and employers may be at the mercy of the circuit where they are located.

This blog was originally published by Passman & Kaplan, P.C. on February 2, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


Share this post

Mental Health and the Workplace: How Can We Change the Stigma?

Share this post

AuthorProfile (1)I suffer from depression and anxiety.

In our constantly-moving world, this is not uncommon.

However, it is rarely acceptable to discuss.

When I was first diagnosed with depression, I was a young working 20 year old in college. The depressive episode had hit me pretty hard and – being in a retail business where customer service was of the utmost importance – it was increasingly difficult to appear “happy” at my job.

Smiling was difficult, staying motivated was difficult, and interacting with customers was almost impossible. I was also commonly late to work, as getting ready and motivated was an increasingly unobtainable outcome.

After a few weeks of a noticeably sullen mood shift, my manager called me into her office. Instead of doing the right thing and asking me if I needed a vacation or a moment away from customers, she told me to “smile” and just keep working.

“My husband suffered from mild depression once,” she informed me, “so I know how difficult depression can be. Still, you need to smile at customers. I never see you smile anymore. If you don’t improve we will have to re-evaluate your performance here.”

Later, this same manager threatened to fire me when my other chronic health issues caused me to be hospitalized for a couple of days. If I had been aware of the laws surrounding the Americans with Disability Act, there’s no doubt I would have filed a complaint. Sadly, I was too young to be aware of them, and I ended up quitting a month later to focus on my schooling.

I did eventually get pills to help with my depression, but they were only a temporary fix. To this day I don’t medicate for the illness, as it is situational. It does rear its ugly head from time to time, but I have decided to treat it without mentally altering medications. It is a condition I am aware of and can prepare for, but I still struggle bringing it up at work.

Stigma around mental health seems to be a constant presence in my life. From people commonly describing the weather as “bi-polar,” to news stories focused around another mass shooting and the role that mental health plays in gun rights; I can never seem to escape the reminder that our society finds mental illness unacceptable.

These stigmas – plus the way I was treated at my job when I was 20 – has caused me to bottle up my condition in the workplace. “If they don’t see it and if I don’t mention it; then my job will be secure,” I think to myself. However, bottling up my condition can lead to more anxiety and distrust with my employer. I shouldn’t feel like I need to hide something that can affect my life so heavily.

According to the National Alliance on Mental Illness (NAMI), about one in five Americans suffer from mental illnesses every year. The most common ailment to affect the brain is anxiety (about 18.1% of Americans suffer from it), closely followed by depression and other mood disorders. Considering mental illness is so prominent in our society, one would assume that our level of acceptance and understanding was much higher than the reality. Sadly, it wasn’t until recently (with the addition of the Affordable Care Act) that mental illness treatment was even seen as a necessity.

According to Bradley University’s Counseling Program, mental illness can have serious physical effects on the body as well. Depression alone can increase a person’s chances of contracting heart disease or cancer by over 50%, and over-exposure to chronic stress is directly correlated to increased risks of heart attacks.

What does this mean for mental health in the workplace?

We, the employees and those in management, need to break the stigma and talk about our mental state comfortably with our superiors. Our superiors, in turn, should be able to understand the best ways to mitigate stress and anxiety, and not discriminate against employees that struggle with mental health conditions. As Wake Forest University explains, stigma can originate inside ourselves, and the first step to conquering the problem is talking openly about our condition with others.

According to the Americans with Disabilities Act (ADA), mental health issues can qualify as “psychiatric disabilities” that may hamper “one or more major life activity.” NAMI has also provided a helpful handout for any employees that struggle with mental illness and want to know their rights. Legally, most mental illness sufferers fall under the protection of the ADA.

Learn your rights, and do your part to end the stigmas surrounding mental illness. Hopefully over time, we can reverse discriminatory practices in the workplace and bring about a more mentally-healthy future.

Katie McBeth is a freelance writer out of Boise, ID, with experience in marketing for small businesses and management. When she’s not writing about millennials or small businesses, she spends her free time training her dog Toby to herd her three annoying (but adorable) cats around her house. You can follow her animal and writing adventures on Instagram or Twitter: @ktmcbeth.


Share this post

EEOC Issues Revised Publications Regarding the Employment Rights of People with Specific Disabilities

Share this post

lizbeth_westOn May 15, 2013, the EEOC issued a press release announcing revised publications regarding employment rights for four categories of individuals with specific disabilities. The publications address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities.

According to the EEOC, “nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability.” Further the agency believes that “many of them are looking for jobs or are already in the workplace…” and, “while there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

Therefore, the EEOC said that the revised publications are in plain, easy-to-understand language, and reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the publications also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

For more information regarding the revised publications, go to:http://www.eeoc.gov/laws/types/disability.cfm

This article was originally printed on The Labor and Employment Law Blog on May 16, 2013.  Reprinted with permission.

About the Author: Lizbeth V. West, Esq. is a Shareholder in Weintraub Tobin’s Labor and Employment, Appeals and Writs, and Litigation groups.


Share this post

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

Share this post

ellen simonA U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.


Share this post

Southwest Flight Attendant Wins ADA Appeal

Share this post

Employee Fired For Taking Medical Leave Gets Jury Verdict Reinstated

When does too much time off for an illness justify a termination because of poor attendance? Not every time according to a case decided this past week from the Fifth Circuit Court of Appeals. Here’s what happened.

Facts Of The Case

Edward Carmona worked for Southwest Airlines as a flight attendant. He was plagued with psoriasis since he was a teen. As an adult, Carmona developed psoriatic arthritis which causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of his skin.

During flare-ups, Carmona is in great pain and has difficulty walking and moving around. The flare ups occur three or four times every month and each flare-up lasts for three or four days.

In order to get time off as needed for his condition, Carmona filed for intermittent leave under the Family and Medical Leave Act. He was granted FMLA leave between 1998 and 2005, until Southwest determined that he had not worked enough hours to be eligible for renewal.

After Carmona’s FMLA leave expired, he was no longer able to excuse absences caused by his psoriatic arthritis. What followed was a round of progressive discipline which culminated in termination because of an accumulation of points relating to unexcused absences.

The Lawsuit

Carmona sued Southwest claiming that he was terminated because of his disability in violation of  the Americans with Disabilities Act. (ADA)*.

In order to prove an ADA claim, an individual must prove:

  • that he was an individual with a disability within the meaning of the ADA
  • that he was a qualified individual for his job, despite his disability,
  • and that he was discharged because of his disability

In order to establish a disability, Carmona had to establish that he had:

  • a physical or mental impairment that substantially limited one or more major life activities
  • a record of such an impairment or
  • that he was regarded as having such a impairment.

After a jury trial which Carmona won,  the judge granted judgment against Carmon as a matter of law on the grounds that he did not present sufficient evidence of a disability.  Specifically, the judge found Carmona’s intermittent limitations didn’t prove a substantially limiting impairment. In other words, the judge ruled that Carmona was not disabled as a matter of law and took away the verdict.

The Fifth Circuit Court of Appeals disagreed and reversed in it’s opinion issued this week. You can read the decision here.

In sum, it held that the verdict should stand because there was sufficient evidence for a reasonable jury to conclude that:

  • Carmona had an impairment that substantially limited his major life activity of walking
  • he was a qualified individual for his job
  • he was terminated because of his disability
Take Away

This is a really good decision for those who have conditions which cause intermittent disabling flare-ups and need to take time off of work because of it. It will particularly benefit those employees who work for employers not covered by the FMLA (companies with less than 50 employees).

The case also has a helpful discussion on Southwest’s core argument — that Carmona was not qualified for the job because of his poor attendance.

It’s also  good decision for those with cases pending before the ADA amendments Act of 2008. The Court did not apply the amendments retroactively, yet still found for the plaintiff under the narrower pre-amendments law.

The Court also wrote about reinstatement as a remedy — another topic we don’t see very often in ADA opinions.

In sum,  this case is a good result for employees and instructive to employers on the interplay of attendance policies and the ADA.

( *Carmona also had a Title VII claim; the jury found against him on that claim )

Image: blog.cleveland.com

*This post originally appeared in Employee Rights Post on March 27, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.



Share this post

Employee Fired Because Of Depression Wins Right To Jury Trial

Share this post

Banker Terminated When “Regarded As Disabled” And Because Of Perceived Mental Impairment Has ADA Claim

Disability claims involving mental impairments can be tough. That’s why this recent case from a federal district court in the Eight Circuit is an important and helpful read. Here’s what happened in the case of Lizotte v. Dacotah Bank.*
Facts Of The Case

Alfred Lizotte was an assistant vice president of commercial lending at Dacotah Bank where he had been employed since 2003.

On Thursday, November 30, 2006 Lizotte consumed somewhere between 10-12 drinks at a local bar. On his way home, “and for whatever reason”, he decided he “had enough of this”, drove to a cemetery, took a gun out of his backseat, and called his sister.

When his sister arrived at the cemetery, he told her that he “didn’t want to be here anymore.” She unsuccessfully struggled to get the gun and called the police.

Lizotte drove away, was stopped by the police, and taken into custody. He was involuntarily committed to a psychiatric inpatient unit for four days following the incident.

On December 1, 2006 Lizotte called his immediate supervisor and told him that he was unable to come to work. On December 5, 2006 Lizotte’s physician faxed a Dacotah Bank “Certification of Health Care Provider” form indicating that Lizotte could return to full work duties in a week.

On December 8, 2006 the HR director (Bobby Compton) sent Lizotte a letter stating: “Because of the impact of your action in the community, and the ability to perform your job, we are placing you on Leave of Absence to allow us to review the information and consider the issue.”

On December 14, 2006 Lizette met with Compton and two officers of the bank. He was given a letter to sign which said that it was his last day of employment. In exchange for signing the letter he got $6,500.00 in severance pay. Lizette unwillingly signed the letter and thereafter received a “Notification of Employee” resignation form which he refused to sign.

The Lawsuit

Several months later, Lizotte filed a lawsuit in federal district court in North Dakota alleging discrimination under the Americans with Disabilities Act (“ADA”). The complaint also asserted several state law claims.

ADA: What’s The Law?

The Americans with Disabilities Act law is quite complicated but here it is in a nutshell.

In order for an employee to establish a prima facie case under the ADA, he must show he:

1. is disabled within the meaning of the ADA
2. is qualified to perform the essential functions of the job with or without reasonable accommodation, AND
3. suffered an adverse employment action because of his disability

The ADA defines disability as:

1. a physical or mental impairment that substantially limits one or more major life activities OR
2. a record of such impairment OR
3.
being regarded as having such impairment

If a plaintiff establishes all of those elements, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the discharge.

If the employer establishes a legitimate reason for the discharge, the burden shifts back to the plaintiff to show that the reason given by the employer is a pretext for discrimination — meaning that it’s a “phony excuse.”

The bottom line is after jumping through all of these hoops, there must be evidence from which a jury could reasonably conclude that the individual’s disability “was a factor in the employment decision at the moment it was made.”

The Court’s Opinion In The Case

Regarded As Disabled

The bank argued that Lizotte’s claim should be dismissed as a matter of law because he did not have a disability as defined by the ADA.

Lizotte contended that he met the definition of disability because Defendants regarded him as disabled and mistakenly believed that his mental disorder substantially limited the major life activity of working .

The Court agreed with Lizotte.

Quoting from the landmark case of School Board of Nassau v. Arline which interpreted the “regarded as” language in the Federal Rehabilitation Act, it noted:

Although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling.

By including â€regarded as’ in the Rehabilitation Act â€Congress acknowledged that society’s myths and fears about disabilities and about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.

Therefore, if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on “myth, fear or stereotype, the individual will satisfy the regarded as part of of the definition of disability.

In Lizotte’s case, the defendants:

* were aware that he was being treated for depression

* knew he had attempted suicide the night of November 30th and was hospitalized for several days after the event

* were “blown away” that he was released from the psychiatric unit after only 4 days

* perceived Lizotte’s mental impairment (mood disorder according to his doctor) to be much more restrictive than described by his doctor

* inaccurately believed:

1. that he could not work

2. suffered from a condition that made him potentially violent at work

The Court stated:

There is undisputed evidence that Lizotte was terminated on December 14, 2006 because of the Defendants’ concerns about ‘safety,’ reputation,’customer acceptance,’ ‘liability,’ and a desire to protect the bank’s image in Minot.

The EEOC regulations and case law explicitly state that such ‘attitudinal barriers’ may reflect a perception of disability based on ‘myth,fear or stereotype’ and that this is a scenario the ADA is designed to guard against……..

The Bank Defendants’ “Legitimate Reasons” For Termination And Proof Of “Pretext”

Bank officials stated that it terminated Lizotte because of three concerns:

1. the safety of its employees and customers
2. its reputation in the community
3. its reputation with its employees

The record however, did not support those justifications — and certainly not as a matter of law. For example, as the the Court noted, the evidence showed:

* the suicide incident was not well known in Minot or among other bank employees

* no adverse business results occurred in the two weeks between the suicide attempt and Lizotte’s termination

* no employee said he or she couldn’t work with Lizotte

* there was no financial impact on the bank

* no customers pulled their accounts nor asked to be transferred to a different loan officer

As stated by the Court:

There may have been legitimate, non-discriminatory reason(s) to terminate Lizotte in December 2006, but there are certainly inferences that can be drawn from the evidence presented that the bank acted on the basis of myth, fear,or stereotype, and that Lizotte’s perceived mental impairment was the reason for the termination. …

The ADA does not require that Dacotah bank officials to put its staff and the general public at risk by employing an individual who poses a direct threat to others.

But the ADA does require the bank to provide due consideration to an individual they arguably may have ‘regarded as’ having a mental impairment and who may be able, with reasonable accommodation, to perform his work productively and safely. ….

There is conflicting evidence as to whether the employment decisions were made because of a perception of a disability …. that warrant a jury trial and preclude the granting of partial summary judgment on the ADA claims.

Lessons To Be Leaned

According to the National Institute for Mental Health, mental disorders are common in the United States. An estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That’s over 70 million people.

Therefore, millions of people with depression and other mental disorders may be exposed to employment discrimination because of a disability which can and should be accommodated.

This case is a perfect example of what can happen when misconceptions about depression and other mental impairments can result in an illegal discharge under the Americans with Disabilities Act.

images: www.lipseys.com

www.westernsolutions.com

*Reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

*This post originally appeared in Employee Rights Post on February 19, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome


Share this post

ADA Changes Better Late Than Never

Share this post

New ADA Regulations Will Bring Necessary Change

I received a call from a reporter from MSNBC a few days ago. She indicated that she wanted to ask me some questions about the new Americans with Disabilities Act regulations recently put out by the EEOC.

The interview caused me to reflect on just how important the amendments to the ADA are –along with the new regulations — and the struggle we have gone through to get here.

When the ADA was written, I remember being at a meeting in Cleveland with a group of employment lawyers which was sponsored by a committee of the American Bar Association. The guest speaker was a lawyer from D.C. and he was there to talk to us about the new legislation and give us a preview.

I remember listening to and reading all of these complex, confusing terms and thinking “this is going to result in tons of litigation and be a big nightmare.” I walked out of the meeting and talked about my deep concern with some friends and colleagues from both sides of the bar.

We all seemed to reach the same conclusion – that this was going to be an ugly litigation mess — and though we saw the handwriting on the wall, there was nothing we could do about it. The ADA was written and this is what it was going to say.

And indeed what our group of experienced employment lawyers predicted that day in 1990 turned out to be true. While the intent of the ADA was certainly noble, the way in which it was written has caused nothing but problems.

What’s more important is that the problems with the ADA have had a terrible negative effect on those individuals who were supposed to be protected by the legislation.

The ADA was intended to protect individuals with disabilities from discrimination. Because of the way in which the Act was written, combined with the way in which it has been interpreted by an exceedingly conservative federal judiciary, most cases got thrown out on summary judgment because the courts determined that the individual plaintiff employee was not disabled.

If he/she was not disabled, then he/she was not protected by the ADA from disability discrimination, and so they lost. Here’s an example of what I mean.

A secretary gets fired for going to chemotherapy. We file a case of disability discrimination. The employer argues that cancer is not a disability as defined by the Act. The judge buys the argument and the case gets thrown out. (based on a true story)

That scenario occurred thousands and thousands of times. Employees with disabilities were getting fired, or not hired in the first place, or passed over for promotions – and the cases were thrown out of court because the employers argued that the person was not disabled so the ADA did not apply.

Those rejected included people with AIDS, people with cancer, people with MS, people with epilepsy, diabetes, with prosthetic devices and the list goes on and on.

As a consequence,  those of us who tried to represent these folks never even got to the stage of the case in which we had a chance to prove discrimination.

As I explained to the MSNBC reporter, in other discrimination lawsuits such as age, race, or gender discrimination cases, we don’t have a fight about whether the client is a woman, or over 40, or black.

We glide past step one, and move on to proof of the next step, that is:

  • Was he or she was discriminated against because of age, race or gender?
  • Was that person’s age, race, or gender a motivating reason for the discharge, failure to hire, lack of promotion, or any other adverse employment decision?

In disability cases, it was almost impossible to get to step two. Practically no one seemed to meet the criteria for coverage under the ADA. To be covered, the individual must:

  • have a physical or mental impairment that substantially limits one or more major life activities
  • and be able  to perform the essential functions of the job.

The courts decided – at the employers’ urging — that the employee was either not substantially impaired, or that the impairment did not involve a “major life activity.”

Even if the plaintiff got over that hurdle – in other words was disabled enough to meet the criteria, it’s most likely that he or she was booted anyway.

That’s because the employer would then take the position that the individual was so restricted that he or she was not able to meet the essential functions of their job – and most courts went along with the companies’ argument.

In a nutshell, a person either wasn’t disabled enough to meet the definitional terms of the statute– – or was too disabled to perform the “essential functions of the job” even if accommodated. (reasonable accommodation for the disabled is required under the ADA)

The long and short of it is that millions of people with disabilities had no protection from discrimination as a result of this legal mess.

The amendments to the ADA passed last year (Americans with Disabilities Act Amendments Act of 2008) fixed this problem and the regulations issued at the end of September provided most of the necessary clarifications to put real teeth into the fix.

For the first time, the EEOC regulations lists examples of impairments that will consistently meet the definition of a disability. Such impairments include (but are not limited to):

  • Blindness
  • Deafness
  • Intellectual disabilities
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV/AIDS
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depression
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

There are new definitions for substantial impairment, major life activity, regarded as disabled, and more  — all of which are intended to overrule the previous restrictive federal court interpretations of the legislation(including the US Supreme Court).

The new ADA amendments along with the regulations plainly state that the ADA is intended to offer broad protection to people with disabilities as well as people who are regarded to be disabled by their employers and who are discriminated because of it.

Instead of litigating the issue of whether someone is disabled,  the central issue of these cases will now be what they should have been all along – whether the employee was discriminated against because of a disability.  That’s what was intended when the Americans With Disabilities Act was passed.

Too bad it took us nineteen years to get here – but as the old adage goes, better late than never.

www.michaellouisyoung.com

www.broward.org

This article originally appeared in Employee Rights Post on November 9, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome


Share this post

Subscribe For Updates

Sign Up:

* indicates required

Recent Posts

Forbes Best of the Web, Summer 2004
A Forbes "Best of the Web" Blog

Archives

  • Tracking image for JustAnswer widget
  • Find an Employment Lawyer

  • Support Workplace Fairness

 
 

Find an Employment Attorney

The Workplace Fairness Attorney Directory features lawyers from across the United States who primarily represent workers in employment cases. Please note that Workplace Fairness does not operate a lawyer referral service and does not provide legal advice, and that Workplace Fairness is not responsible for any advice that you receive from anyone, attorney or non-attorney, you may contact from this site.