Americans With Disabilities Act

Choose Language:
print
decrease text size increase text size
text

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

Posted on June 21, 2021June 30, 2021 by Workplace Fairness

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, ‘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

This man was denied a job as a sheriff’s deputy just because he has HIV. Now he’s suing.

Posted on November 1, 2017November 2, 2017 by Zack Ford

Share this post

A Louisiana man has filed a federal lawsuit against the Iberia Parish Sheriff’s Office (IPSO) for allegedly discriminating against him in 2012. According to the complaint, filed last week by Lambda Legal, IPSO was prepared to hire Liam Pierce as a deputy sheriff, but allegedly opted not to after learning that Pierce has HIV.

“It was like a punch to the gut,” Pierce, 46, told ThinkProgress in a phone interview. “It really frustrated me that for all the wonderful things that are here in Louisiana and all the wonderful people we have, we still have people that are not appropriately educated with HIV, how it’s transmitted, what the risks are, and what isn’t risky.”

As the complaint recounts, two days after Pierce had his in-person interview with IPSO in March, 2012, Captain Rickey Boudreaux told him that was going to be hired by the department, pending a medical examination. That examination, completed two weeks later, found that Pierce indicated “no significant abnormalities or medical findings,” with all physical findings “within normal limits.” But it did state that he is HIV-positive. Two days after submitting the medical examination, Pierce received a letter from IPSO indicating that he would not be hired.

“It’s clear on the medical evaluation: The only thing negative was the HIV status,” Pierce said, adding that a friend’s contact at the department relayed to him that he wasn’t hired because he failed the medical. He immediately knew it was because of his HIV status. “Anybody with a simple amount of education is able to see right and wrong and this is plainly wrong. It’s no different than discriminating against somebody because they have diabetes or because they have cancer. You can’t discriminate against that. It’s wrong.”

Indeed, the U.S. Department of Justice has resources dedicated specifically to educating the public about how discrimination on the basis of HIV status is a violation of the Americans with Disabilities Act.

Pierce has a long history of service to others. He’s been an EMT, a paramedic, a firefighter, and a police officer. It was actually Hurricane Katrina that brought him to Louisiana in the first place; he ditched his old job after securing authorization to join the first-responder recovery efforts. He was hired full-time shortly thereafter by a local agency. To this day, he still teaches various public safety courses, including firearm safety, first aid, CPR, and — ironically — blood-born pathogens. His enthusiasm for helping others even convinced his husband to take an interest in firearm safety and they now teach the classes together.

After his HIV diagnosis in 2003, Pierce said, “I actually spent my days and nights reading everything I could”; he even began doing HIV education, including services specifically intended to help others who have just learned of their own HIV diagnoses.

“When you’re first diagnosed, a lot of people feel it’s the end of the world, and you quickly realize it’s not the end of the world,” he said. “It’s a condition, like any other condition, that requires medication, medical care, and also self-care.”

Because of his role in medical education, Pierce is particularly attuned to people’s misconceptions about HIV. When he first disclosed his status to people, he remembered many were afraid even if he’d cough or sneeze. The biggest misconception he’s encountered is that many people don’t understand the difference between HIV and AIDS.

“People think that once you have AIDS you always have AIDS, and that’s not the case anymore. I’ve known people who have had a CD4 count of two and have come back because they changed their lifestyle; they started taking care of themselves,” he said. “People don’t understand that the two are very different.” (A CD4 count refers to white blood cells and the health of a person’s immune system; an uncompromised immune system has a CD4 count of 500 or higher.)

With this lawsuit, Pierce recognizes that he now has an even bigger platform with which to help others better understand the virus; specifically, he said he hopes more people embrace a “willingness to empathize” with people living with HIV. “We don’t need people to feel sorry for us, we don’t need people to treat us any different, but understand the facts and not just the rumors,” he said.

He added that he’s had reservations about the lawsuit, recognizing that it could open him up to future discrimination, but he still believes it’s the right thing to do.

“I’ve always been very private about my HIV status,” he said. “I’ve always tried to make it the smallest part of my life. By standing up, I might be able to help others. And by standing up, I might be able to change the way things are done here in Louisiana and maybe give someone else an opportunity to not have to go through what I went through.”

IPSO told ThinkProgress that it does not comment on pending litigation.

This article was originally published at ThinkProgress on October 30, 2017. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students.

Share this post

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

Posted on August 31, 2016August 31, 2016 by Katie McBeth

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

Posted on May 22, 2013May 22, 2013 by Lizbeth West

Share this post

On 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

Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Posted on May 4, 2011May 5, 2011 by Ellen Simon

Share this post

ellen simon Here are a few employee rights Short Takes worth noting:

It’s A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24^th. The new rules were mandated by the ADA Amendments Act of 2008 (“ADAAA”). The law made significant changes with respect to the interpretation of the term “disability” under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed “disability” and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage. As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times about a recently filed discrimination case and it’s worth talking about because it will make new law. The case is about El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male.

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden. His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau’s second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status. The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances. (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 — Equal Pay Day — to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit. After the U.S. Supreme Court ruled against her in 2007 — because it held that the case was filed too late — Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111^th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today. For more, read here.

images: blogs.orlandosentinel.com image.spreadshirt.com www.glbtq.comf

This blog originally appeared in Employee Rights Post on May 2, 2011. Reprinted with permission from 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 Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Posted on October 1, 2010October 6, 2010 by Ellen Simon

Share this post

Here are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses talked about the “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

This article was originally posted on Employee Rights Blog.

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

Posted on February 22, 2010 by Ellen Simon

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 ‘regarded as’ in the Rehabilitation Act ‘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

One Shocking Incident Of Disability Discrimination Supports Verdict For Employee

Posted on November 24, 2009 by Ellen Simon

Share this post

Judgment For Employee Due To Employer’s Failure To Accommodate

I don’t remember ever reading a case quite like this one. The facts are quite graphic so be prepared. The story revolves around an incident of a store’s failure to accommodate a disability which led to a tragic result.

What Happened In The Case

A woman identified only as A.M. came to America in 1981 from El Salvidor after civil war broke out. She started working at Albertsons in 1987. She worked in various jobs, but at the time of the incident giving rise to the case, she was working as a checker.

In 2003, A.M. underwent chemotherapy and radiation for cancer of the tonsils and larynx. The treatment affected her salivary glands which caused her to drink large volumes of water and urinate repeatedly.

While at work, A.M. was required to have water with her at all times and needed to go to the bathroom frequently — sometimes as often as every 45 minutes.

Most managers accommodated her but on the evening of February 11, 2005, A.M. encountered a horrific problem.

She worked a shift that day which began at 1:00 p.m. and was scheduled to end at 10:00 p.m.

By 7:00 p.m. there were only three employees in the store – A.M. who was working as checker, another woman who acted as courtesy clerk (and was not allowed to relieve a checker), and Kellie Sampson – the person in charge.

At 8:00 that evening, A.M. told Sampson that she needed take a break. Sampson asked A.M. to wait because a delivery truck was coming

Some time later, A.M., who had a line of customers waiting to check out, called Sampson and told her again that she needed to go to the bathroom. Sampson told her that she was unloading the merchandise and that she had to wait.

About 10 minutes later, A.M. still had customers in the line. She called Sampson once more and told her that she really had to go. Sampson said that she was busy and unable to come to the front of the store.

Unable to control herself, A.M. urinated while standing at the checkout stand. She was having her menstrual cycle, and so she was drenched with both urine and blood.

Understandably, A.M. was shaky and humiliated though she did not think the customers saw what happened. When Sampson finally got to the front of the store, A.M. went into the bathroom to clean herself.

Sobbing, she called her husband to tell him what happened. A customer observed her crying, asked what was wrong, and A.M. explained that she had wet herself because no one let her go to the bathroom.

The customer helped her to her car. She had a horrible drive home and thought about killing herself.

When she got home, still nervous and crying, she took a long shower and tried to scrub the smell off her. She wouldn’t get out of the shower and her husband had to remove her.

After that, she was unable to return to work and began to deteriorate psychologically. She became listless and withdrawn. She refused to see family and friends. She feared that people would be able to smell the bad odor she sensed about herself.

She had crazy dreams and couldn’t sleep. Each day, she took multiple showers to try and remove bad smells from her body. She shaved off all of her body hair, hoping that the bad smell would go away.

Eventually A.M. told a doctor that had thoughts about killing herself. She was committed to a psychiatric hospital for several days.

She began receiving individual and group therapy and eventually improved. She took fewer showers and began to be less concerned about her smell. She still was withdrawn but eventually was able to go back to work.

The Lawsuit

A.M. filed for damages claiming that Albertsons failed to provide her with a reasonable accommodation for her disability in violation of California’s Fair Employment and Housing Act (“FEHA”).

As generally happens where damages for emotional distress are being considered, there was conflicting testimony was presented from from the psychologists and psychiatrists.

For the plaintiff, an expert in psychological treatment and injury testified about A.M.’s post traumatic stress disorder . The expert’s opinion was that A.M.’s emotional distress occurred as a direct result of the February 2005 incident and that she would likely suffer some effect of this disorder for many years.

Two psychiatrists testified on behalf of the defense. Their opinion was that her depression was a result of events that predated the February incident and that A.M. had been depressed and anxious for most of her life.

The jury returned a verdict in A.M’s favor and awarded damages in the amount of $200,000:

$12,000 for past lost wage

$40,000 for future medical expenses

$148,000 for past emotional distress

The Appeal

Albertsons made several arguments on appeal.

Under the FEHA (like the Americans With Disabilities Act) an employer that fails to make a reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice.

Albertsons main contention was that its failure to accommodate was trivial, because it constituted a single incident in the context of a much longer period of successful accommodation (which began in 2004 when A.M. came back to work after her cancer treatment).

In other words, the defense argued that one incident of a failure to accommodate is not enough to violate the law.

The Court of Appeals strongly disagreed and had this to say in its opinion:

The employer’s interpretation would be inconsistent with the statutory purpose to require employers to make reasonable accommodation for their employees’ physical disabilities …

As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated.

When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity. ….

The judgment is affirmed.

Lessons To Be Learned

I don’t remember ever reading a case that turned on the question of whether a single incident of accommodation could support a disability claim and verdict — so for that reason, the case is both interesting and important.

The case is also a sad and disturbing illustration of what can happen when managers at all levels are uninformed about the consequences of a failure to accommodate the disabled.

image: www.tempe.gov

www.carlsonzone.com

*prior results do not guarantee a similar outcome

Share this post

ADA Changes Better Late Than Never

Posted on November 12, 2009November 20, 2009 by Ellen Simon

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.

*prior results do not guarantee a similar outcome

Share this post

Great Disability Rights Opinion From Seventh Circuit For Employees And Their Lawyers

Posted on November 3, 2009November 20, 2009 by Ellen Simon

Share this post

Employee With MS Wins Appeal In Seventh Circuit “Regarded As” Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and “unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

Multiple Sclerosis Is A Disability

The first part of the lower court’s ruling pronounced that Brunker had no claim because he was not disabled. In other words, the fact that he had multiple sclerosis didn’t matter, according to the court — even if that’s why he was fired — because MS was not a disability.

The court’s logic was based on case law developed under the ADA which left millions of people with disabilities unprotected from employment discrimination.

Fortunately, the ADA was amended this past year. Under the new act, multiple sclerosis would be considered a disability (and should have been under the old act as well) so a judge theoretically should not be able to throw the case out on similar grounds. (the court did not address the amended ADA because the case was filed before it was passed)

(For information on new regulations proposed under the amended ADA see the article in the Connecticut Employment Law Blog)

Being Regarded As Disabled Is A Violation Of The ADA

Under the ADA (both the old act and the new one) a person has a claim for disability discrimination if he or she is subjected to an adverse employment decision because he or she is regarded as disabled.

To prove disability discrimination under a “regarded as” theory the employee can win by proving that:

The employer mistakenly believes that the employee has an impairment that substantially limits a major life activity, or

The employer mistakenly believes that an existing impairment, which is not actually limiting, does substantially limit a major life activity (functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working)

In this case, the Court of Appeals decided that Brunker presented enough evidence that he was fired because Schwan’s regarded him as being disabled. In reversing the lower court, the Court of Appeals stated:

The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking.

For example, the day before he left for the Mayo Clinic, Schwan”s issued Brunker multiple corrective action reports, including a dress code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent conditions.

Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations.

As to Schwan’s motive, the Court of Appeals had this to say:

Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.

These facts are sufficient to create a triable question as to whether Schwan’s regarded Bunker as disabled when it fired him.

The Court Reverses Sanctions Against The Lawyers

It’s typical in these kinds of lawsuits for lawyers representing employees to request documents from the employer defendant to either prove their case or disprove the defendant’s case. It not only typical; it is absolutely allowed the Federal Rules of Civil Procedure.

In what I can only say is a quirky, outlandish, and mean-spirited ruling, the trial court in this case imposed sanctions on Brunker’s lawyers because they pressed to get the information they believed necessary to properly represent their client.

For example, the lawyers asked for records on whether Schawn disciplined other employees who failed to follow its dress code or to keep accurate route books (some of the reasons give for the discharge).

A request to see co-employees personnel files in order to prove unequal treatment or whether what the company is stating is true (pretext) is quite standard, but in this case the lawyers were sanctioned for making it.

The Court of Appeals reversed, holding that the information was relevant to Brunker’s disparate treatment claim since it related to the even handedness of the company’s expectations.

The Court also criticized the company’s lawyers for refusing to produce the requested documents and then using them to support their defense.

The Court said:

Indeed Schwan’s went further than merely raising an issue it had previously argued was irrelevant.

It faulted Brunker for failing to identify any route manager who had “similar performance issues” and was treated more favorably.

And Schwan’s also discussed the route manager who was terminated for failing to service customers, despite Schwan’s successful opposition to Brunker’s request for his personnel file.

Similarly, Schwan denied the relevance of the personnel file of another former employee, Mike Devereaux, but then used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.

Conclusion

This case is a great win for both Mr. Brunker and his lawyers. He obviously had grounds to bring a case claiming that he was terminated because of his disability – and every right to have that case heard by a jury.

As far as the lawyers go, it’s always very difficult to get companies to produce the documents we need to prove our cases. Companies control the records in these cases and they do not give them up easily even when they are plainly relevant.

At the same time there is no doubt that lawyers representing employees have to get those documents both to support our clients claims and test the employers’ defenses. It’s simply a battle that must be fought.

The fact that these lawyers were punished for doing what they needed to do for proper representation of their client is plainly wrong. Fortunately, the Seventh Circuit Court of Appeals agreed.

images: www.pocketyourdollars.com bowtielaw.files.wordpress.com

This post originally appeared in Employee Rights Post on November 1, 2009. Reprinted with permission from the author.

*prior results do not guarantee a similar outcome

Share this post

FIRST FIRED, LAST REHIRED

TRANSIT A HUGE OBSTACLE

EMPTY BOARD SEATS

CITY MUST LEAD BY EXAMPLE

SHUT OUT OF ELECTIONS

‘NOT EVEN ON THE RADAR’

It’s A First: Major League Baseball Player Takes Paternity Leave

New Rules For The Americans With Disabilities Act

Discrimination Lawsuit Raises Issue Of Who Is A Man

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

EEOC Settles Race Discrimination And Retaliation Case For $400,000

Judgment For Employee Due To Employer’s Failure To Accommodate

What Happened In The Case

The Lawsuit

The Appeal

Lessons To Be Learned

New ADA Regulations Will Bring Necessary Change

Employee With MS Wins Appeal In Seventh Circuit “Regarded As” Disability Decision

What Happened In The Case.

The Seventh Circuit Reverses

Conclusion

Subscribe For Updates

Recent Posts

Archives

Find an Employment Lawyer

Know Your Rights

Find an Employment Attorney